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THE  ^^f^ 


PRACTICE 


COURTS  OF  KING'S  BENCH, 

AND 

C  0  M  M  0  iN    PLEAS, 

IN  PERSONAL  ACTIONS,  AND  EJECTiMENT. 


TO    WniCn    ARE    ADDED, 


THE  LAW   AND  PRACTICE   OF   EXTENTS, 


RULES    OF    COURT,    AND    MODERN    DECISIONS, 

IX    THE 

BY  WILLIAM  TIDD,  ESQ. 

IN  TWO  VOLUMES. 
VOL.  I. 

THIRD    AMERICAS,    FROM    THE    ^•1XTH    LONDON    EDITION, 

WITH  NOTES  or  RECENT  ENGLISH  STATUTES  AND  DECISIONS, 

BY  FEANCIS  J.  TllOUBAT. 

FOCRTH    AMERICAN    EDITION,    WITH    ADDITIONAL    NOTEg, 

BY  ASA  I.  FISir. 


4^5^: 


PHILADELPHIA: 

ROBERT  IL  SMALL,  LAW  BOOKSELLER, 

NO.  21   SOUTU  SIXTH  STREET. 

1856. 


T 
T43&7P 

vol' I 


Entei-eil  according  to  act  of  Congivss.  in  the  year  1856,  by 

ROBERT    H.    SMALL, 

In  the  Clerk's  Office  of  the  District  Court  for  the  Eastern  District  of  Pennsylvania. 


'^^'*rG 


Robb,  PUe  Sc  M'EIroy .  Prs- 
Lodge  Street. 


ADVERTISEMENT 

TO    THE 

THIRD   AMERICAN   EDITION. 


Since  the  publication  of  the  ninth  Edition  of  Mr.  Tidd's  Practice. 
in  Trinity  Term  1828,  many  important  alterations  have  been  made 
in  the  Practice  of  the  Superior  Courts  of  Law  at  Wedminder,  by 
various  Statutes,  Rules  of  Court,  and  Judicial  decisions.  The  prin- 
cipal Statutes,  by  which  these  alterations  were  effected,  are  the 
Administration  of  Justice  act,  (11  Geo.  IV.  &  1  W.  IV.  c.  70;) 
the  Speedy  Judgment  and  Execution  act,  (1  W.  IV.  c.  7 ;)  the 
Examination  of  Witnesses  act,  (1  W.  IV.  c.  22 ;)  the  Interpleader 
act,  (1  &  2  W.  IV.  c.  58;)  the  Uniformity  of  Process  act,  (2  W. 
IV.  c.  39 ;)  and  the  Law  Amendment  act,  (3  &  4  W.  IV.  c.  42.) 

In  pursuance  of  the  power  given  by  the  Administration  of 
Justice  act,  general  rules  were  made  by  all  the  Judges,  in  Trinity 
term,  1831,  and  Hilary  term,  1832.  The  rules  of  Trinity  term 
chiefly  relate  to  the  putting  in  and  justifying  of  special  bail ;  the 
shortening  of  declarations  in  actions  of  assumpsit,  or  debt,  on  bills 
of  exchange,  or  promissory  notes,  and  the  common  counts ;  the 
dehvery  ofpccrticidars  of  the  plaintiff's  demand,  under  those  counts; 
the  time  for  delivering  declarations  de  bene  esse;  the  service  of 
declarations  in  ejectment;  the  time  for  pleading;  rules  to  plead 
several  matters ;  and  judgment  of  non  ptvs,  &c.  The  object  and 
intent  of  the  rules  of  Hilary  Term  appear  to  have  been,  to  assi- 
milate the  practice  of  the  different  courts,  and  to  render  the  pro- 
ceedings therein  more  expeditious,  and  less  expensive  to  the 
suitors. 


j^  ADVERTISEMENT. 


Under  the  Lcaw  Amendment  act,  general  rules  were  made  by 
all  the  judges  of  the  superior  courts  of  common  law  at  Westminster, 
in  Hilary  term  1834;  which  having  been  laid  the  requisite  time 
before  both  houses  of  parUament,  came  into  operation  on  the  first 
day  of  Easter  term  following.  These  rules,  which  may  be  con- 
sidered as  the  commencement  of  a  new  era  in  pleading,  in  England, 
are  of  two  kmds :  1st,  general  rules,  relating  to  all  pleadings ;  and, 
2ndly,  rules  relating  to  pleadings  in  the  particular  actions  of  assumpsit, 
covenant,  debt,  detinue,  case  and  tresjmss. 

Some  additional  rules  were  also  made  by  the  judges  in  pur- 
suance of  the  law  amendment  act,  and  of  the  powers  given  them 
by  the  administration  of  justice  act,  relating  to  i\iQ  practice  of  the 
courts,  in  Hilar?/  term,  1834,  which  took  effect  on  the  first  day  of 
Easter  term  following.  These  rules  chiefly  relate  to  demurrers, 
and  proceedings  in  error ;  and  contain  provisions  respecting  the 
admission  of  written  documents. 

The  present  edition  of  this  work  consists  of  the  ninth  of  the 
author,  with  so  much  of  the  new  practice  incorporated  in  notes, 
as  was  thought  to  be  of  interest  or  utility  in  this  country.  For 
this  part  of  the  pubhcation,  the  editor  is  chiefly  indebted  to  the 
author's  most  recent  work  pubHshed  in  1837,  entitled,  The  New 
Practice  of  the  Courts  of  King's  Bench,  Common  Pleas  and  Ex- 
chequer of  Pleas,  in  Personal  Actions  and  Ejectment.  The  judi- 
cial decisions  of  the  courts  referred  to  in  that  work,  are,  for  the 
most  part,  founded  on  the  new  statutes  and  rules  of  court,  and  as 
a  w^hole,  the  system  thus  worked  up,  independently  of  its  philoso- 
phical merits,  has  but  little  in  it  useful  to  the  American  lawyer. 

Philadelphia,  May,  1840. 


PUBLISIIEK^S  PREFACE 


FOURTH    AMERICAN     EDITION. 


In  this  new  impression  of  Tidd's  Practice,  the  reader  will  find  all  that  the 
third  edition  embraced,  with  the  addition  of  copious  and  extended  notes  by  the 
present  editor.  The  object  of  these  notes  has  been  chiefly  to  illustrate  the  text, 
and  adapt  it  to  the  practical  wants  of  the  profession  in  this  country.  As  the 
editor's  labours  were  intended  to  be  useful  in  all  the  States  where  the  common 
law  prevails,  statutory  changes,  and  special  State  legislation,  have  not  been  largely 
introduced. 

An  efibrt  has  been  made,  to  confine  the  notes  within  a  moderate  compass,  in 
order  that  neither  the  bulk  nor  expense  of  the  volumes  would  be  much  increased ; 
and  the  publisher  has  every  reason  to  believe,  that  he  now  presents  to  the  prac- 
tising attorney  this  valuable  manual  in  a  more  satisfactory  manner  than  at  any 
time  heretofore. 

PniLADELPniA,  September.  1856. 


PllEFACE. 


Since  the  publication  of  the  ciyhth  edition  of  the  following  Work,  several 
acts  of  parliament  have  expired,  or  been  rej)ea/ed,  and  others  passed,  which  have 
occasioned  considerable  alterations  in  the  practice  of  the  different  courts.  Some 
new  rules  of  court  have  also  been  made,  during  that  period,  and  upwards  of  eif^ht 
Uundred  cases  published,  on  practical  subjects. 

The  restrictions  on  cash  payments  under  the  Bank  acts  having  finally  ceased, 
it  is  no  longer  necessary  to  negative  a  tender  of  the  debt  in  bank  notes,  in  an 
affidavit  to  hold  to  bail.  The  alien  acts  having  expired,  aliens  are  now  no  longer 
privileged  fi'om  arrest.  The  statute  51  Geo.  III.  c.  124,  having  also  been 
suffered  to  expire,  an  act  was  made  in  the  last  session  of  parliament,((^)  to  pre- 
vent arrests  upon  mesne  process,  where  the  debt  or  cause  of  action  is  under 
twenty  pounds ;  and  to  regulate  the  practice  of  arrests.  By  this  act,  no  person 
can,  in  general,  be  arrested  or  held  to  special  bail,  where  the  cause  of  action  is 
less  than  twenty  pounds  ;  nor,  in  Wales  or  the  counties  palatine,  unless  the  pro- 
cess be  duly  marked  and  indorsed  for  bail  in  a  sum  not  less  than  fiftt/  pounds. 
And  where  the  writ  or  process  is  issued  by  a  plaintiff  in  his  own  person,  the 
sheriff  shall  not  execute  the  same,  unless  it  be  delivered  to  him  by  some  attorney 
of  one  of  the  courts  of  record  at  Westminster,  &c.,  and  indorsed  with  the  name 
and  place  of  abode  of  such  attorney.  The  defendant  is  allowed,  by  this  statute, 
to  deposit  and  pay  into  court  the  sum  indorsed  upon  the  writ,  together  with  an 
additional  sum  for  costs,  to  abide  the  event  of  the  suit,  in  lieu  of  putting  in 
and  perfecting  sjyecial  hail.  And  where  the  plaintiff  does  not  proceed  by  capias 
against  the  person,  but  by  original  or  other  writ,  and  smnmons  or  attachment,  or 
by  suhjiaiua  and  attachment  thereupon,  against  any  person  not  having  privilege 
of  parliament,  the  same  mode  of  proceeding  is  given  by  this  statute,  as  was  before 
provided  by  the  51  Geo.  III.  c.  124. 

The  stamp)  duties  on  law  proceedings  were  rejyeahd,  by  the  statute  5  Geo.  IV. 
c-  41.  And  the  statutes  relating  to  banknqyts  and  insolvent  ddtors  having  been 
repealed,  except  in  certain  cases,  the  laws  respecting  the  former,  and  for  the  relief 
of  the  latter,  were  amended  or  consolidated,  by  the  statutes  6  Geo.  IV.  c.  16  and 
7  Geo.  IV.  c.  57.  The  laws  relating  to  the  customs  having  also  been  repealed, 
by  the  statute  6  Geo.  IV.  c.  105,  an  act  was  made  for  the  prevention  of  smug- 
gling;(cm)  in  which  there  are  clauses  relative  to  the  limitation  of  actions  against 
officers  of  the  army,  nary,  or  marines,  customs  or  excise,  or  any  person  acting 
under  the  directions  of  the  comiiiissioncrs  of  the  customs,  for  any  thing  done  in 
the  execution  or  by  reason  of  their  offices ;  and  requiring  notice  in  writing  to  be 
given  to  such  officers,  one  calendar  month  before  the  writ  sued  out,  and  enabling 

{a)  7  &  8  Goo.  IV.  c.  71.  {aa)  G  Geo.  IV.  c.  108. 


viii  PREFACE. 

them  to  tender  amends,  plead  the  general  issue,  and  bring  money  into  court,  &c. 
The  statutes  of  hue  and  cry,  &c.,  having  also  been  repealed,  by  the  statute  7  &  8 
Geo.  IV.  c.  27,  an  act  was  made,(?')  for  consolidating  and  amending  the  laws  in 
England,  relative  to  remedies  against  the  hundred,  for  the  damage  done  by  per- 
sons riotously  and  tumultuously  assembled,  (for  which  alone  the  hundred  is  now 
liable  :)  and  a  summary  mode  of  proceeding  is  provided  by  that  act,  before  two 
justices  of  the  peace,  in  cases  where  the  damage  does  not  exceed  thirty  pounds. 

Other  acts  have  been  made,  affecting  the  jurisdiction  and  practice  of  the  courts, 
of  which  the  following  are  instances :  First,  the  act  to  enlarge  and  extend  the 
power  of  the  judges  of  the  several  courts  of  Great  Sessions  in  Wales,  and  to 
amend  the  laws  relating  to  the  same  :(«)  Secondly,  3Ir.  PeeVs  act,  for  consolidat- 
ing and  amending  the  laws  relative  to  jurors,  and  juries  :{ljh')  Thirdly,  the  acts 
to  abolish  the  sale  of  offices,  in  the  courts  of  King's  Bench  and  Common  Pleas, 
and  to  make  provision  for  the  chief  justices  ;(c)  for  augmenting  the  salaries  of 
the  Master  of  the  Kolls,  and  Vice  Chancellor,  the  Chief  Baron  of  the  court  of 
Exchequer,  and  the  puisne  judges  and  barons  of  the  courts  in  Westminster 
H(dl,{d^  &c. ;  and  to  authorize  the  purchase  of  the  office  of  receiver  and  comp- 
troller of  the  seal  of  the  courts  of  King's  Bench  and  Common  Pleas,  and  of  cus- 
tos  hrevium  of  the  latter  court :(()  Fourthly,  the  act  for  preventing  frivolous  icrits 
of  error  ;{^f^  by  requiring  that  upon  any  judgment  to  be  given  in  any  of  the 
courts  at  Westminster,  or  in  the  counties  palatine  and  great  sessions  in  Wales,  in 
any  personal  action,  execution  shall  not  be  stayed  or  delayed  by  writ  of  error  or 
supersedeas  thereupon,  without  the  special  order  of  the  court,  or  some  judge 
thereof,  unless  a  recognizance,  with  condition  according  to  the  statute  3  Jac.  I. 
c.  8,  be  first  acknowledged  in  the  same  court :  And  lastly.  Lord  Tenterden^ s 
acts,  for  rendering  a  written  memorandum  necessary  to  the  validity  of  certain 
promises  and  engagements  ;(<7)  and  to  prevent  a  failure  of  justice  by  reason 
of  variances  between  records,  and  writings  produced  in  evidence  in  support 
thereof.  (7A 

In  preparing  ih.Q  present  edition,  it  has  been  the  Author's  endeavour  to  render 
his  wox'k  less  unworthy  of  the  very  favourable  reception  it  has  met  with  from  the 
profession.  The  whole  has  been  carefully  revised,  and  such  corrections  made  as 
appeared  to  be  necessary,  as  well  in  the  text,  as  in  the  notes  and  references.  The 
several  acts  of  parliament  and  rules  of  court,  which  have  been  made  since  the 
publication  of  the  last  edition,  are  introduced  in  the  present ;  together  with  such 
of  the  practical  decisions  of  the  courts,  as  were  published  before  the  work  went 
to  press,  or  could  be  inserted  while  it  was  printing  off :  The  rest  are  given  at  the 
end,  by  way  of  Addenda,  together  with  some  other  matters  which  were  inad- 
vertently omitted,  with  directions  for  incorporating  them ;  and  are  for  the  most 
part  referred  to  in  the  Index.  These  decisions  are  brought  down  to  the  end  of 
Michaelmas  term  last,  in  the  King's  Bench,  afid  Exchequer ;  and  to  the  end  of 
Hilary  term,  in  the  Common  Pleas.  References  are  also  made  to  the  second 
volume  of  the  reports  of  the  late  Lord  Kenyon;  and  the  references  to  text  writers, 
and  books  of  practice,  &c.,  have  been  altered  throughout  to  the  latest  editions. 

The  general  arrangement  of  the  work  is  pretty  much  the  same  in  this  edition 
as  the  last,  except  that  the  twentieth  chapter  of  the  last  edition,  which  treated  of 
motions  and  rules  peculiar  to  the  action  of  ejectment,  and  affidavits  in  support  of 

(b)  7  &  8  Geo.  IV.  c.  31.  (a)  5  Geo.  IV.  c.  106. 

{bb)  6  Geo.  IV.  c.  50.  (c)  6  Geo.  IV.  c.  82,  3. 

[d)  6  Geo.  IV.  c.  84.  (e)  6  Geo.  IV.  c.  89. 

(/)  6  Geo.  IV.  c.  96.  («)  9  Geo.  IV.  c.  14. 
\h)  9  Geo.  IV.  c.  15. 


PREFACE.  ix 

t-licm,  and  of  such  motions  and  rules  as  were  not  necessarily  connected  with  any 
suit,  has  been  divided ;  and  its  contents  transferred  to  the  twentieth  and  last 
chapters  in  the  present  edition.  The  tli!rtt/-fiftk  and  thirti/sixth  chapters  also, 
of  the  last  edition,  have  been  divided,  and  now  coustitute  three  chapters,  being 
the  thirty-fourth,  tIiirtj/-JJ/tJi,  ani  shirfy-si.rfh,  m  the  present  edition;  one  of 
which  treats  of  the  record  of  nisi  j/rius,  jury  pmcess,  common  and  special  juries, 
and  views ;  another,  of  the  brief,  evidence,  and  witnesses  ;  and  the  third,  of 
entering  the  cause  for  trial,  and  references  to  arbitration. 

\  The  insertion  of  the  new  statutes,  rules  of  court  and  cases,  has  necessarily 
O()casioned  considerable  alterations  throughout  the  work  ;  and  particularly  in  the 
jfinl,  second,  sixth,  tenth,  twelfth,  fftcenth,  twentieth,  twentj-thirxl,  and  thirti/- 
fointh  chapters.  In  the  frst  chapter,  several  new  statutes  have  been  referred 
to,  respecting  the  mode  of  bringing  actions  hy  jxtrish  officers,  and  by  or  again.st 
trustees,  and  public  comj)anies,  &c.,  the  limitation  of  actions  for  wrongs,  and 
notices  of  action,  &c.  ;  and  the  cases  decided  on  the  statutes  of  limitations  have 
been  newly  arrangevl.  In  the  second  chapter,  a  full  account  is  given  of  the  offices 
and  officers  of  the  courts  of  King's  Bench  and  Common  Pleas,  with  theii-  appoint- 
ment and  duties,  as  regulated  by  the  statutes  6  Geo.  IV.  c.  82,  3,  and  80.  And, 
in  the  sixth  chapter,  the  mode  of  proccciling  against  traders  liaving  privilege  of 
parliament,  by  the  statute  G  Geo.  IV.  c.  IG,  is  pointed  out ;  and  also  the  remedy 
by  action  against  hundredvrs,  on  the  statute  7  &  8  Geo.  IV.  c.  31,  for  damages 
occasioned  by  persons  riotously  and  tumultuously  assembled,  with  the  summary 
mode  of  proceeding  on  that  statute,  before  two  justices,  where  the  damage  does 
not  exceed  thirty  pounds. 

The  law  of  arrest  is  fully  treated  of  in  the  truth  chapter,  as  depending  on  the 
statute  7  &  8  Geo.  IV.  c.  71 ;  and  in  this  chapter  the  several  cases  are  consi- 
dered, in  which  hankrnjits  and  insolvent  debtors  are  privileged  from  arrest,  by 
the  statutes  6  Geo.  IV.  e.  16,  and  7  Geo.  IV.  e.  57.  With  regard  to  the  former, 
their  privilege  from  arrest  is  considered  in  a  threefold  point  of  view;  First,  in 
coming  to  surrender,  and  during  the  time  allowed  for  finishing  their  examiiialiun; 
secondly,  after  the  time  allowed  them  for  these  purposes  is  expired,  and  before 
they  have  obtained  their  certificates  :  and  thirdly,  after  their  certificates  have 
been  signed  and  allowed  by  the  Lord  Chancellor  :  And  the  banknipt  being  dis- 
charged from  all  debts  proveable  under  the  commission,  it  was  thought  that 
It  might  not  be  deemed  an  improper  digrcs'sion,  to  consider  what  debts  may  or 
may  not  be  2^^'OPed  under  it.  Tlie  privilege  of  insolvent  debtors  from  arrest  is 
also  considered  iu  this  chapter,  first,  under  wcns/ofUfHnsolveut  acts;  secondly, 
under  the  earlier  jyermanent  acts;  and  thirdly,  under  the  last  general  iu.solvent 
act,  7  Geo.  IV.  e.  57. 

The  ticelfth  chapter,  on  the  subject  of  bail,  has  been  carefully  revised  and 
corrected ;  and  a  new  arrangement  is  made  therein,  of  the  cases  relative  to  the 
means  of  discharging  them  from  liability  on  their  recognizance.  In  tlxejifteenth 
chapter,  a  view  is  taken  of  the  several  acts  of  parliament  for  the  relief  of  insolvent 
debtors  ;  and  particularly  of  that  to  which  they  arc  entitled  under  the  last  general 
insolvent  act,  with  the  mode  of  proceeding  thereon  :  Iu  the  twentieth  chapter, 
the  annuity  acts  and  the  decisions  thereon  arc  introduced,  under  the  head  of 
staying  procoedings;  and,  in  the  twenty-third  chapter,  some  material  alterations 
have  been  made  in  the  arrangement  of  the  cases  respecting  the  insjiection  and 
coj>ies  of  written  instruments,  books,  court  rolls,  &c. 

In  the  thirfy-fourfJi  chapter,  the  qualifications,  disriualifications,  and  exemptions 
of  Jurors  are  considered;  with  the  mode  of  returning  and  impanelling  common 
juries,  and  of  striking  sj:jecta?  juries,  as  it  existed  before,  and  is  now  regulated  by 


J  PREFACE. 

the  statute  6  Geo.  IV.  c.  50,  and  also  tlic  time  and  mode  oi  summoning  jurors  in 
general,  and  obtaining  a  view ;  and,  in  the  thirti/scventh  chapter,  the  method  of 
hallotiag  for  and  swearing  common  jurors,  at  the  trial,  is  pointed  out,  and  the 
adding  of  talesmen,  &c. 

Besides  the  additions  and  alterations  that  have  been  noticed,  and  which  were 
occasioned  by  the  new  statutes,  rules  and  cases,  there  are  others,  in  the  tliirty- 
scventlt,  fortieth,  and  last  chapters,  which  depend  on  former  statutes  and  decisions. 
In  the  thirty-seventh  chapter,  the  author  has  carefully  collected  and  arranged  aU 
the  cases  which  have  been  determined  on  the  measure  of  damages,  in  actions 
upon  contracts,  and  for  icrongs,  immediate  and  consequential ;  and,  as  incideat 
to  the  consideration  of  damages,  in  actions  upon  contracts  for  the  non-payment  of 
money,  there  is  a  collection  of  the  cases  in  which  interest  is  or  is  not  recoverable. 
In  the  fortieth  chapter,  the  principal  court  of  requests  acts  have  been  referred  to, 
and  the  acts  by  which  their  jurisdiction  is  extended  to  sums  not  exceeding  ^j^t'e 
pounds,  or  to  sums  of  larger  amount,  with  the  decisions  thereon  :  and,  in  a  pre- 
vious chapter, (a)  there  are  references  to  the  acts  by  which  the  decree  or  judg- 
ments may  be  removed  from  courts  of  reqtiests,  to  obtain  execution  thereon,  in 
the  si(j>erior  courts. 

In  the  last  chapter,  a  practical  view  is  taken  of  the  action  af  ejectment,  which 
is  treated  of  under  the  following  heads  :  First,  the  general  nature  and  object  of 
the  action  :  Secondly,  by  and  against  whom  it  may  be  brought :  Thirdly  for 
what  things  an  ejectment  will  lie,  and  how  they  should  be  described :  Fourthly, 
the  title  necessary  to  support  it,  and  herein  of  the  legal  estate,  and  right  of  entry  : 
Fifthly,  within  what  time  an  ejectment  must  be  brought :  Sixthly,  the  remedy  by 
entry,  without  suit;  and  in  what  cases  an  actual  entry,  and  demand  of  rent,  were 
foraierly  necessary,  and  must  now  be  made  :  Seventhly,  the  ancient  mode  of  pro- 
ceeding in  ejectment,  and  in  what  cases  it  is  still  necessary  :  with  the  method  of 
proceeding  in  the  case  of  a  vacant  possession ;  Eighthly,  the  present  mode  of 
proceeding  against  the  casual  ejector,  to  judgment  by  default  and  execution, 
when  the  tenant  or  his  landlord,  does  not  appear :  Ninthly,  the  appearance  of 
the  tenant,  or  his  landlord;  and  the  subsequent  proceedings  thereon  to  trial,  final 
judgment,  and  execution  :  And  lastly,  the  mode  of  reviving  the  judgment  by 
scire  facias,  or  of  reversing  it  by  writ  of  error. 

But  that  which  chiefly  distinguishes  the  present  from  ail  former  editions,  is 
the  marginal  notes,  or  abstracts  of  the  contents  of  the  work.  The  making  of 
these  notes  has  been  attended  with  considerable  trouble;  but  it  is  hoped  they  will 
be  found  useful  in  facilitating  research. 

Amid  such  a  variety  of  new  and  important  matter,  making  altogether  more 
than  a  tenth  part  of  the  whole  work,  some  errors  must  necessarily  have  occurred : 
These  the  author  trusts  will  be  viewed  by  a  liberal  profession  with  their  accus- 
tomed candor;  especially  when  the  difficulty  is  considered,  of  altering  the  text 
of  a  work  already  composed,  and  that  a  great  part  of  his  time  has  been  necessarily 
occupied  with  the  business  of  his  clients. 

The  whole  work  has  been  re-paged,  and  references  made  throughout  to  the 
proposed  new  edition  of  the  Prxictical  Forms,  which  is  in  a  state  of  considerable 
forwardness,  so  as  to  make  them  correspond  with  the  present  edition  of  the  Prac- 
tice, to  which  they  are  intended  as  an  Ap>])endix.  The  tables  of  statutes,  and 
general  rides  of  court,  orders  and  notices,  prefixed  to  the  work,  have  been  care- 
fully revised,  corrected,  and  re-paged ;  with  the  tables  of  the  principal  reports  of 
printed  cases  referred  to  therein.     By  these  tables  it  will  appear,  that  there  are 

(a)  Chap.  XYI.  pp.  402,  3. 


PREFACE. 


XI 


nearly  ^I'c  hundred  statutes  TQioncd  to  in  the  following  work,  and  uioro  than  that 
number  of  general  rules  of  court,  orders  and  notices.  The  whole  number  of 
printed  cases  amounts  to  upwards  of  ten  thousand,  besides  those  which  have 
been  published  since  the  last  edition ;  and  the  original,  or  MSS.  cases  are  nearly 
Jive  hundred.  The  Indi  x  also,  in  which  the  new  matter  has  been  introduced, 
has  been  carefully  revised,  altered,  and  repaged ;  and  some  of  the  principal  titles 
have  been  new  modelled  and  enlarged,  particularly  those  relating  to  Affidavits  of 
the  cause  of  Action,  Bail,  Bankrupt,  Court  of  Requests,  Acts,  Damages,  Eject- 
ment, Evidence,  Great  Sessions,  Hundredors,  Insolvent  Debtors,  Interest,  Jury, 
Limitation  of  Actions,  Officers,  Offices,  and  Slayinfj  Proceedings,  &c. 

Upon  the  whole,  no  pains  have  been  spared,  to  improve  the  present  edition  ; 
and  it  is  now  submitted  to  the  profession,  as  exhibiting  in  a  conuoctcd  point  of 
view,  the  Practice  of  the  courts  of  King's  Bench  and  Common  Pleas,  in  j^ersonal 
actions,  and  ejectment ;  with  the  rules,  and  modern  decisions,  on  the  plea  side  of 
the  court  of  Exchequer  ;  particularly  noticing  the  changes  it  has  undergone  during 
the  reigns  of  his  late  and  present  Majesty  :  of  which  it  may  with  truth  be  affirmed, 
that  in  no  period  of  our  history  has  the  law  been  better  administered,  or  the 
courts  of  justices  filled  with  more  able  and  upright  judges. 

Temple, 

QthJanc,  1828. 


CONTENTS. 


VOL  I. 

Advertisement.  Page  iii 

Publisher's  Preface.  v 

Preface.  vii 
Chronological  Table  of  Statutes,  referred  to  in  the  folloiving 

work.  17 

Tlie  like,  0/ General  Rules,  Orders,  and  Notices.  38 

The  like,  of  the  PRINCIPAL  Reports  of  printed  Cases.  53 

Alphabetical  Table  of  original  Cases.  55 

Introduction.  71 

CHAPTER   I. 

0/"  Actions,  and  the  Time  limited  for  their  Commencement;  and  of 
Notices  of  Action,  ^c  1 

CHAPTER  II. 

Of  the  Jurisdiction  of  the  Courts  of  King's  Bench,  Common  Pleas, 
and  Exchequer  of  Pleas,  in  Personal  Actions  ;  and  of  the 
Judges,  Advocates,  and  Officers  of  the  Courts.  37 

CHAPTER  III. 

Of  the  Admission,  Enrolment,  Certificates,  and  Re-admission 
0/ Attorneys  ;  their  Privileges,  Disabilities,  rt«t?  Duties  ;  tvith 
the  Consequences  of  their  Misbehaviour.  {]<^) 

CHAPTER  lY. 

Of  the  Means  0/ commencing  ji^ersMiaZ  Actions  in  the  King's  Bench, 
Common  Pleas,  and  Exchequer  ;  and  the  Prosecution  and  De- 
fence of  them  in  Person,  or  by  Attorney  ;  and  of  Paupers,  and 
Infants.  91 

CHAPTER   V. 

Of  the  Original  Writ,  and  Process  thereon,  previous  to  the  Capias, 
in  the  King's  Bench,  and  Common  Pleas.  102 

CHAPTER  VI. 

Of  the  Proceedings  in  Actions  against  Peers  of  the  Realm,  and 
Members  of  the  House  0/ Commons;  and  against  Corporations 
and  Hundredors.  116 

CHAPTER  VII. 

Of  the  Capias  bg  Original,  and  Process  0/ Outlawry,  in  the  King's 
Bench,  and  Common  Pleas.  128 


jjjy  CONTENTS. 

CHAPTER  VIII. 

Of  the  Bill  of  Middlesex,  and  Latitat,  and  subsequent  Process 
'^ thereon,  in  the  King's  Bench;    of  the  Capias  quare  clausum 
FREGiT,  c^^c.  in  the  COMMON  Pleas  ;  and  of  Process  in  the  Exche- 
quer of  Pleas.  Page  145 

CHAPTER  IX. 

Of  the  Proceedings  on  Mesne  Process,  against  the  Person  of  the 
Defendant  ;  and  of  the  Service  of  a  Copy  of  Process,  not  baila- 
ble ;  and  the  Notice  to  appear  thereto.  164 

CHAPTER  X. 

Of  the  Arrest  upon  bailable  Process.  171 

CHAPTER  XL 

Of  the  Bail-bond  ;  and  Duty  of  Sheriffs,  ^g.  on  the  Arrest.  221 

CHAPTER  XIL 

Of  Appearance,  and  Bail  to  the  Action.  238 

CHAPTER  XIII. 

Of  the  Proceedings  against  Bail  to  the  Sheriff,  upon  the  Bail- 
bond  ;  and  against  the  Sheriff,  to  compel  him  to  return  the  Writ, 
and  bring  in  the  Body.  297 

CHAPTER  XIV. 

Of  the  Proceedings  in  Actions  hy  and  against  Attorneys  and 
Officers,  in  the  Courts  of  King's  Bench,  Common  Pleas,  and 
Exchequer  ;  and  of  the  Recovery  and  Taxation  of  their  Costs.    319 

CHAPTER  XV. 

Of  the  Proceedings  in  Actions  against  Prisoners,  in  Custody  of 
the  Sheriff,  ^c.  ;  and  of  the  Marshal  of  the  King's  Bench,  or 
Warden  of  the  Fleet  Prison  :  ivith  the  Relief  they  are  entitled 
to  under  the  Lords'  Act,  ^c.  341 

CHAPTER   XVI. 

Of  the  Removal  o/ Causes /rom  Inferior  Courts.  397 

CHAPTER  XVII. 

Of  the  Declaration.  419 

CHAPTER  XVIII. 

Of  Imparlance,  and  Time  for  Pleading  ;  and  of  the  Notice  and 
Rule  to  plead,  and  Demand  of  Plea,  ^c.  462 

CHAPTER  XIX. 

Of  Motions,  and  Rules  in  general,  and  Affidavits  in  support 
of  them  ;  and  the  Practice  of  the  Courts  thereon,  and  hy  Sum- 
mons and  Order  at  a  Judge's  Chambers.  478 


CONTENTS.  Xy 

CIIArTER  XX. 

Of  SETTING  ASIDE,  and  statjimj  the  Proceedings.  Page  512 

CHAPTER  XXL 

(?/ COMPROMISING,  and  compounding  the  Action.  540 

CHAPTER  XXII. 

Of  Judgments  hj  confession,  and  Default  ;  the  Assessment  of 
Damages,  hjj  Reference  to  the  Master  or  Prothonotaries,  or 
hy  Writ  of  Inquiry  ;  and  Proceedings  on  the  Statute  8  &  0  W. 
III.  c.  11,  §8.  .559 

CHAPTER  XXIII. 

Of  Oyer  and  Copy  Deeds,  <^c.  ;  Inspection  and  Copies  of  written 
Instruments,  Books,  Court  Rolls,  ^c;  and  Particulars  of 
Demand,  or  Set  of.  586 

CHAPTER  XXIV. 

Of  CHANGING  the  Venue  ;  consolidating  Actions,  and  striking 
out  Counts.  601 

CHAPTER  XXV. 

Of  bringing  Money  into  Court.  619 

CHAPTER  XXVI. 

Of  Pleas  to  the  jurisdiction  ;  claiming  conusance  ;  and  Pleas 
IN  Abatement.  630 

CHAPTER  XXVII. 

0/ Pleas  in  Bar;  and  herein,  of  the  General  Issue,  and  lohat  may 
he  given  in  Evidence  under  it;  o/ Special  Pleas,  and  when 
necessary  to  he  pleaded;  o/ pleading  several  Matters,  and  th' 
Costs  thereon;  and  of  the  Plea  and  Notice  o/Set  Off,  ^c.  6-43 

CHAPTER  XXVIII. 
Of  Replications,  and  subsequent  Pleadings.  676 

CHAPTER  XXIX, 
Of  Demurrers,  and  Amendment.  694 


VOL.  11. 
CHAPTER  XXX. 


Of  making  up,  and  entering  the  Issue:  and  of  the  Rolls  of  the 
Courts  ;  loith  the  Manner  of  bringing  in  and  docketing  them.     717 

CHAPTER  XXXI. 
Of  arguing  Demurrers.  736 


XYl 


CONTENTS. 


CHAPTER  XXXII. 

Of  the  Issue,  and  Trial  by  the  IIecord.  Page  742 

CHAPTER  XXXIIL 

Of  Trials  hy  the  Country,  at  Bar  csr  Nisi  Prius  ;  and  of  the  Steps 
'  Preparatory  to  the  latter,  and  Consequences  of  not  Proceeding 
to  Trial,  cfc.  747 

CHAPTER  XXXIV. 

Of  the  Record  of  Nisi  Prius  ;  Jury  Process  ;  common  and  special 

Juries  ;  and  Views.  775 

CHAPTER  XXXV. 

Of  the  Brief,  Evidence,  and  Witnesses.  79& 

CHAPTER  XXXVI. 

Of  enteeing  the  Cause  for  Trial  ;  and  References  to  Arbi- 
tration. 81ff 

CHAPTER  XXXVn. 

Of  Trials  at  Nisi  Prius,  and  their  Incidents.  847 

CHAPTER  XXXVIII. 

0/ i/ie  Rule /or  Judgment  ;  and  moving  for  a  New  Trial,  ^e.  oi'  in 
Arrest  of  Judgment;  or  for  Judgment  non  obstante  veredicto^  a 
Repleader,  or  Venire  Facias  de  novo.  ,        903 

CHAPTER  XXXIX. 
Of  Judgments.  930 

CHAPTER  XL. 
Of  Costs.  945 

CHAPTER  XLI. 

Of  Execution  by  Fieri  facias,  Capias  ad  satisfaciendum,  and 
Elegit  ;  a^id  in  the  Action  (f  Replevin.  993 

CHAPTER  XLII. 

Of  Execution  by  Levari  facias,  and  Extent  ;  and  the  Proceed- 
ings thereon,  1042 

CHAPTER  XLIIL 

Of  Writs  of  Scire  facias  ;  and  the  Proceedings  thereon.  1090 

CHAPTER  XLIV. 

Of  Writs  of  Error,  mid  False  Judgment  ;  a)id  the  Proceedings 
thereon.  1134 

CHAPTER  XLV. 
Of  the  Action  of  Ejectment.  1189 

Index.  1253 


CHRONOLOGICAL 

TABLE  OF   STATUTES, 

REFERRED  TO  IN  THE  FOLLOWINa  WORK. 


Magna  Charta,  (9  Hon.  III.)  c.    8.  Debt  to  King,  Execution,  1044. 

c.  18.  Diem  clausit  extrcmum,  10o7. 
Merton,  (20  Hen.  III.)  c.  1.  Damages,  Dower,  870. 
Marleberge,  (52  Hen.  III.)  e.    6.  Costs,  976. 

c.  13.  Essoin,  778. 
c.  16.  Damages,  870,  (fj.) 
c.  23.   Capias,  128. 
Westminster,  I.  (3  Edw.  I.)  c.  24.  Damages,  870,  {h.) 
Gloucester,  (6  EcIav.  I.)  c.  1.  Damages,  Costs,  870,  945,  &c. ;  1241. 

c.  5.  Damages,  870,  946. 
Rutland,  (10  Edw.  I.)  §  8.  Debt  to  King,  Commission  for  finding,  1047 
Acton  Burnel,  (11  Edw.  I.)  De  Mcrcatoribus,  121,  1084. 
Westminster,  II.  (13  Edw.  I.)  stat.  1. 

c.    2.  Replevin,  Return,  Second  Deliverance,  1038. 
c.    5.  §  3.  Damages,  878,  946. 
c.  10.  Appearance,  60,  92. 
c.  11.  Capias,  128. 

c.  18.  Elegit,  935,  994,  1033,  1086,  1120. 
c.  24.   Original  Writ,  103. 
c.  25.  Damages,  870. 
c.  26.  Damages,  id. 
c.  27.  Essoin,  778. 

c.  30.  Nisi  Prius,  41,  747,  778,  896,  7. 
c.  31.  Bill  of  Exceptions,  862,  3. 
c.  39.  Non  omittas,  309. 

c.  45.  Scire  Facias,  870,  946,  1096,  1102,  3;  1348. 
Winton,  (13  Edw.  I.)  Stat.  2,  c.  1,  2.  Hue  and  Cry,  122,  (a.) 
Edward  I.  13  stat.  3,  c.  1.  De  Mcrcatoribus,  1084,  1085. 
Edward  III. 

4,  c.  7.  Trespass  by  Executors,  9. 
14  stat.  1,  c.    5.  Error,  1178,  (/.) 
c.     6.  Amendment,  712. 
Vol.  I. — B 


^y^^  TABLE  OF  STATUTES. 

Edward  III.  continued. 

25,  Stat.  4,  c.    3.  Forestalling,  518. 
5,  c.  17.  Capias,  128. 

c.  19.  King's  Debtors,  191. 

27,  Stat.  2,  c.    9.  Statute  Staple,  1084. 

28,  c.  11.  Hue  and  Cry,  122.  (a.) 

31,  Stat.  1,  c.  12.  Error,  Exchequer,  1140,  1184. 
34,  c.  14.  Traverse  of  Inquisition,  1075. 
36,  c.  13.  Same  title,  id. 
42,  c.  11.  Jury,  778,  787,  (a.) 
50,  c.    5.  Clergymen,  Arrest,  219,  (Z.) 
Richard  II. 

1,  c.    9.  Damages,  870. 

c.  15.  Clergymen,  Arrest,  219,  (l.) 

5,  stat.  1.  c.  8.  Forcible  entry,  977. 

6,  c.    2.  Venue,  601. 
Henry  IV. 

1,  c.    8.  Damages,  870,  (A.) 

2,  c.  11.  Damages,  893,  945,  987. 
4,  c.    8.  Damages,  870. 

c.  18.  Attorneys,  Venue,  60,  95,  601. 
Henry  V. 

1,  c.    4.  Attorneys,  Under-sheriffs,  84. 
c.    5.  Additions,  636. 

2,  Stat.  1,  c.  2.  Certiorari,  Bail,  400,  (i.) 
9,  stat.  1,  c.  4.  Amendment,  712. 

Henry  VI. 

4,  c.    3.  Amendment,  id. 

8,  c.    1.  Members  of  Convocation,  193. 

c.    9.  §  6.  Damages,  Costs,  893,  987. 

c.  12.  Amendment,  96,  109,  699,  712. 

c.  15.  Amendment,  712. 

18,  c.     9.  Warrant  of  Attorney,  95. 

23,  c.    9.  Bail,  Sheriffs,  Fees,  Extortion,  58,  135,  221,  224,  226, 

227,  233,  698,  712. 
33.  c.    7.  Attorneys,  60. 
Henry  VII. 

3,  c.  10.  Damages,  Costs,  Error,  881,  976,  1180. 

4,  c.  20.  Penal  Actions,  Covin,  556. 
11,  c.  12.  Costs,  Paupers,  98. 

19,  c.    9.  Capias,  104,  128. 

c.  20.  Costs,  Error,  976,  1180. 
Henry  VIII. 

1,  c.    8.  Offices,  Escheators,  1050,  (/.) 
3,  c.    2.  Same  titles,  id. 

6,  c.    4.  Writ  of  Proclamation,  132. 

c.    6.   Certiorari,  Remanding  Record,  411. 

7,  c.    3.  Limitation  of  Actions,  15. 

c.    4.  Damages,  Costs,  887,  931,  976. 
21,  c.  13,  §  26.  Non-residence,  518. 

c.  19,  §    3.  Damages,  Costs,  ^31,  976. 


TABLE  OF  STATUTES.  xix 

Henry  III.  continued. 

23,  c.    5,  §  11,  12.  TreLle    Damages,  Commissioners   of  Sewers, 

888,  894 
c.    G,  §  1,  2,  3,  4,  5.  Recognizances,  Statute  Staple.  1084,  5, 

G  ;  1088,  10i.)G. 
§  8.  Poundage,  1088. 
c.  15,  §  1,  2.  Costs,  98,  458,  979,  80,  81,  2 ;  1180. 

24,  e.    8.  Costs,  985,  {d.) 

27,  c.  21.   Tithes,  Ejectment,  1192,  (/.) 

c.  24.  Bailiff  of  "Liberty,  Return,  309,1025. 

28,  c.  12.  King's  Palace,  Arrest,  219. 

32,  c.    5.  Execution,  1037,  1087. 

c.    7.  Tithes,  Ejectment,  1192,  id.  {I.) 

c.    9,  §  2.  Buying  of  Titles,  1194,  5. 

c.  21.  Trinity  Term,  Dies  Juridicus,  57,  106,  152,  3. 

c.  30.  Jeofails,  95,  6  ;  679,  712,  921,  923,  4 ;  927,  8. 

c.  34.  Actions  by  or  against  Assignees,  6,  429. 

33,  c.  39,  §  50,  51.  Obligations  to  King,  1044,  5,  6 ;  1051. 
'    ■  53.  Debts  to  King,  Suits,  Process,  1045,  6. 

54.  Debts  to  King,  Costs,  1082. 

55.  Debts  to  King,  Suits,  Process,  1044. 

56.  7.  Exchequer,  Jurisdiction,  38,  (/.) 

74.  Debts  to  King,  Precedency  of  Execution,  1051,  2  ; 

1055. 

75,  6,  7.  Debts  to  King,  Heir,  Executor,  &c.  1057,  {Jc.) 
79.  Debts  to  King,  Pleading,  Equity,  1077. 

34  &  35,  c.  26,  §  113.  Wales,  Error,  1138. 

35  c.    G,  §  6,  7,  8.  Tales,  751,  {c.)  857,  8. 
Edward  VI. 

2  &  3,  c.    1.  Ilolydays,  55. 

c.    8.  Traverse  of  Inquisition,  1075. 

c.  13,  §  1.  Tithes,  Treble  Value,  Costs,  Error,  573,  625,  894. 
902,  910,  920,  946,  1152,  1192,  {I) 
14.  Prohibition,  Damages,  Costs,  948. 
19.  Ilolydays,  55. 

3  &  4,  c.    3,  §  4.  Damages,  870. 

5  &  6,  c.    3,  §  1.  Ilolydays,  55,  56. 
14.  Forestalling,  517. 
Mary  : 

1  sess.  2,  c.  3.  Clergymen,  Arrest,  219,  (?.) 
Philip  &  Mary  : 

1  &  2,  c.  12.  Distress,  Venue,  Costs,  430,  946. 

4  &  5,  c.    7.  Tales,  751,  (c.)  857,  {e.)  857,  8. 
Elizabeth  : 

5,  c.    4,  §  31.  Costs,  946. 

c.    9,  §  12.  Witnesses,  807. 

c.  25.  Tales,  751,  {c.)  810,  ( f.) 
8,  c.    2.  Declaration,  Costs,  420,  460,  681,  981,  2. 

13,  c.    4,  §  1.  King's  Debtors,  Officers,  Accountants,  1051. 
c.     5.  Fraudulent  Preference,  1006. 

c.  29.  Conusance,  633,  4. 

14,  c.    5,  §  37.  Prisoners,  Allowaiicc,  372. 


^jj  TABLE  OF  STATUTES. 

Elizabeth,  continued. 

14,  c.    9.  Tales,  571,  {c)  857,  [e.) 
18,  c.    3,  §  2.  Notice  of  Action,  Justices,  29. 
5,  §  1.  Information,  Penal  Statute,  99. 

3.  Compounding  Penal  Actions,  Infants,  Costs,  99,  556, 

985. 
C.  12.  Trials  at  Nisi  Prius,  751,  2. 

c.  14.  Warrant  of  Attorney,  Original  Writ,  Jeofails,  95,  108, 

923,  926,  7 ;  1171. 
23,  c.    3,  §  10.  Amendment  of  Fines,  &c.  706. 
27,  c.    4,  §  7,  8.  Statutes  Merchant,  and  Staple,  1084. 
c.     5.  Demurrer,  695. 
c.    8.  Error,  1138,  1143. 
c.  10.  Costs,  556. 
c.  13.  Hue  and  Cry,  15,  122.  {a.) 
29,  c.    4.  Extortion,  Poundage,  893,  897,  1040,  id.  {n.) 
31,  c.    1.  Error,  Exchequer,  1140.  {d.) 

3,  §    1.  Writ  of  Proclamation,  133. 

3.  Bail  on  Outlawry,  140,  41,  2. 
c.    5,  §    2.  Penal  Actions,  Informations,  Venue,  429,  30. 
5.  Limitation  of  Actions,  14,  15. 
43,  c.    2,  §  14,  15,  Prisoners,  Allowance,  372. 

19.  Damages,   Costs,  Poors'  Rate,  575,  653,  (5.)  888, 

894,  987. 
c.    5.  Habeas  Corpus,  405. 
c.    6.  Costs,  659,  952,  3. 
James  I.  ^  ^ 

1,  c.  15,  §  13.  Action  by  Assignees  of  Bankrupt,  7. 

1,  c.  15,  §  16.  Action  against    Commissioners   of  Bankrupt,    &c. 

Pleading,  653.  (6.) 

2.  c.  13,  §  2.  Privilege  of  Parliament,  1030,  31. 

3.  c.    1.  Holidays,  56. 

c.    7,  §  1.  Costs,  325. 

2.  Attorneys,  60,  74.  {a.) 
c.    8.  Bail  in  Error,  1101,  {e.)  1149,  1153,  1155,  1156. 
c.  15,  §  7,  4,  6,  Costs,  Court  of  Requests,  London,  954,  958. 

4,  c.    3.  Costs,  460,  {c.)  888,  949,  980,  81. 

7,  c.    5.  General  Issue,  Costs,  653,  {h.)  988,  9. 
c.  15.  Debt  to  King,  Assignment,  1067. 
21,  c.    4.  Penal  Actions,  Informations,  Venue,  430,  517,  18. 
c.  12,  §  2.  General  Issue,  Costs,  988. 

5.  Venue,  General  Issue,  Justices,  &c.  431,  653.  (5.) 
c.  13.  Jeofails,  923,4;  925,  6. 
c.  16,  §  1.  Entry,  Ejectment,  1194,  (w.)  1195. 
2.  Limitation  of  Actions,  15,  16. 

5.  Tender  of  Amends,  Trespass,  36,  646.  {a.) 

6.  Costs,  962,  966,  7. 
c.  19,  §  9.  Bankrupts,  936. 

11.  Bankrupts,  1006. 
c.  23.  Habeas  Corpus,  405,  6;  412. 
c.  24.  Execution,  1031. 
c.  26,  §  2.  Personating  Bail,  275. 


TABLE  OF  STATUTES.  XXi 

Charles  I. 

3,  c.  4,  §  4.  Bail  in  Error,  1149. 
16,  c.  G.  Michaelmas  Term,  Teste  and  Return,  lOG,  107,  (j.)  119, 

(/.)  129,  (/..) 
Charles  II. 

12  c.  14.  Ilolydays,  56. 
c.  30.  Holydays,  id. 
13,  Stat.  1,  c.  11.  Iloldidays,  id. 

2,  c.  2,  §  2.  Ac  ctiam,  149. 

3.  Non  pros.  Costs,  420,  422,  458,  460,  982. 

4.  Outlawry,  135,  144.  (a.) 

5.  Prisoners,  358. 

6.  7.  Teste  and  Return  of  Writs,  102,  {d.)  781, 

1027,  1098. 
9.  Bail  in  Error,  1101,  1152,  1153. 
10.  Costs,  1181. 
16  c.  2.  Error,  Exchequer,  1140.  {d.) 

16  k  17  c.  8,  §  1,  2.  Jeofails,  923,  925,  927,  8;  943. 

3.  Bail  in  Error,  1101,  1152,  1251,  1252,  3. 

17  c.    7.  Replevin,  Costs,  Execution,  418,  574,  577,  888,  931,  977. 

993,  1038. 
c.    8,  §  1.  Judgments,  933,  1116,  1118. 

2.  Administrator  de  bonis  non,  1119. 
17  &  18,  c.  12.  Bail  in  Error,  Ejectment,  Ireland,  1253. 
20,  c.  4,  Error,  Exchequer,  1140,  {d.) 
22,  &  23,  c.  4.  Bail  in  Error,  1152,  1251. 

c.  9.  Judge's  Certificate,  Costs,  831,  953,  963,  &c.  965. 

6,7. 
29,  c.  3,  §    4.  Undertaking  in  writing.    Contracts,  227,  (e.)  433, 

4,  (k.) 
10.  Judgments,  Cestui  que  trust,  935,  1035,  6. 
14,  15.  Judgments,  938. 
16.  Execution,  935,  1000,  1053. 
18.  Recognizances,  1086. 
c.  5.  Affidavits,  Commissioners,  179,  491,  496,  7. 
c.  7,  §  6.  Sunday,  218. 
31,  c.  2.  Habeas  Corpus,  347. 
William  &  Mary: 

1,  sess.  1,  c.  xviii.  Court  of  Requests,  Bristol,  Gloucester,  Costs, 

957. 
c.  27.  Wales,  Error,  1138. 
2  &  3,  sess.   1,  c.  5.  Damages,  Costs,  893,  4. 
3,  c.  14.    Heir  and  Ancestor,  936,  7,  8. 
4  &  5  c.    4,  §  1,  2,  3,  4.  Bail,  249,  50 ;  263,  275. 

c.  18,  §  2.  Information,  Quo  Warranto,  Costs,  951. 
3,  4,  5.  Outhawry,  135,  6  ;  140,  41. 
c.  20,  §  2,  3.  Docketing  Judgments,  51,  2 ;  731,  2  ;  939,  40. 
c.  21.  Prisoners,  341,  2;  343,  4;  348. 
c.  23,  §  10.  Costs,  967. 
c.  24,  §  15.  Jury,  778,  853.  {b.) 
18.  Tales,  858.  {a.) 
5,  c.  12.  Capias  pro  fine,  943.  [c.) 


XXll 


TABLE  OF  STATUTES. 


William  &  INIaiiy,  continued. 

c.  21,  §  3.   Common  Bail,  240.  {c). 
5  &  6,  c.  21,  §  4.  Date  of  Process,  158. 
William  III. 

7  &  8,  c.  24.  Oaths,  70. 

c.  32,  §  1.  Jury  Process,  780,  85G,  («.)  922. 

3.  Talcs,  751,  857,  {e.)  858. 
c.  36,  §  3.  Docketing  Judgments,  940. 

8  &  9,  c.  11,  §  1.  Costs  on  Acquittal,  98G,  1241. 

2.  Costs  on  Demurrer,  972,  {/),  982,  1181. 

3.  Costs  in  Waste,  Scire  Facias,  and  Prohibition,  870, 

946,  7,  8 ;  1095,  6 ;  1100, 1132. 

4.  Costs  for  wilful  Trespass,  965,  968. 

5.  Executors  and  Administrators,  Costs,  947,  949. 

6.  Scire  Facias,  Judgments,  410,  11 ;  934,  947, 1117. 

7.  Abatement,  934,  1119,  1163,  4. 

8.  Damages,   Suggestion  of  Breaches,  Scire  Facias, 

559,  583,  b^b,  686,  687,  (f.)  721,  2;  781,  879, 
881,  947,  1108,  1152,  1183. 
c.  26.  Escape,  235.  {d.) 
c.  27,  §    3.  Error,  1181. 

6.  Escape,  Fresh  Pursuit,  649. 

8.  Escape,  Prisoner,  366. 

9.  Prisoner,  Marshal,  &c.  Evidence,  id.  367. 

12.  Rule  to  plead,  324,  5. 

13.  Prisoners,  355,  359. 

9  &  10,  c.  15,  §  1,  2.  Arbitration,  820,  823,  826,  840,  845. 
33.  Common  Bail,  240. 
c.  25,  §  42.  Date  of  Process,  158. 

10  &  11,  c.  10,  §  20.  Arrest  for  exporting  Wool,  172. 

c.  14.  Limitation,  Error,  1141,  1174. 

11  &  12,  c.  9,  §  1.  Costs,  952,  963. 

2.  Arrest  in  Wales,  and  Counties  palatine,  171. 

12  &  13,  c.  2.  Judges,  39. 

c.  3.  Peers,  and  Members  of  the  House  of  Commons,  27, 

37,  116. 
13,  c.  6,  §  3.  Oaths,  71. 
Anne  : 

1  Stat.  2,  c.  6,  §  1.  Escape  Warrant,  233,  4 ;  1031. 

3  &  4,  c.    9.  Arrest,  Promissory  Notes,  6. 

4  &  5,  c.  16,  §    1.  Demurrer,  446,  (/.)  695. 

2.  Jeofails,  108,  439,  (/.)  927,  943. 

3.  Warrant  of  Attorney,  95. 

4.  5,  7.  Double  Pleas,   Costs,  654,  5  ;  660,  741, 

971,  1078. 
6.  Venire  Facias,  777,  8. 
8.  View,  495,  6,  795,  6. 

11.  Dilatory  Pleas,  640,  1121. 

12.  Payment,  920,  1130. 

13.  Bringing  Money  into  Court,  163,  542,  584. 

16.  Fine,  Entry,  Limitation  of  Actions,  1199. 

17,  19.  Limitation  of  Actions,  16. 


;table  of  statutes.  xxiii 

Anne,  continued. 

4  &  5,  c.  16,  §20.  BaiUBoml,  7,  297,  8;  300,  411. 
24.  Extent,  Pleadings,  927. 
2").  Costs,  11();3. 
27.  Account,  1. 

5,  c.    8,  Art.  23.  Scotch  IVers,  Privilege  from  Arrest,  192. 
c.  18,  §  4,  6.  Registering,  Judgments,  &c.  941,  108G. 

6,  c.  26,  §  12.   Scotland,  Error,  1140. 

0.  35,  §  19.  Registering  Judgments,  &c.  941,  1086. 

7,  c.  12.  Ambassadors,  191. 

c.  20,  §  18.  Registering  Judgments,  &c.  941,  1086. 

8,  c.    9,  §  32,  37.  Stamp  Duty,  65,  (c.) 

c.  14,  §  1.  Execution,  4,  435,  6,  (/.)  1013,  &c.  1016,  kc. 

4.  Debt  for  Rent,  Annuity,  4.  • 

8.  Recovery  of  Fines,  &c.  Extents,  1014,  1054. 

9,  c.  14.  Gaming,  15, '597,  616,  17;  636. 
c.  20,  §  2.  Mandamus,  Costs,  949,  50. 

5.  Quo  Warranto,  Costs,  656,  7,  951. 

7.  Mandamus,  Quo  Warranto,  Jeofails,  927. 
12,  Stat.  2,  c.  16.  Costs,  946. 

George  I. 

1,  Stat.  2,  c.  5.  Riot  Act,  15,  122.  {a.) 

c.  48.  Action  against  Township,  Trees,  &c.  122.  (rl) 
3,  c.  15,  §  1.  Sheriff's  Officer,  Extortion,  1071,  2. 

3.  Poundage,  Extents,  Recognizances,  1040,  1070,  71, 

2. 

8.  Death  of  Sheriff,  Undershcriff,  313,  14. 

9.  Poundage,  Sheriff's,  xVpportionment,  1072.  ((/.) 
13.  Poundage,  232,  (c.)  1040. 

16.  Poundage,  Elegit,  Habere  facias,  1039,  1088,  9. 

17.  Poundage,  Capias  ad  satisfaciendum,  1039. 

5,  c.  13.  Jeofails,  108,  (c.)  923,  1161. 

6,  c.  16,  §  1.  Action  against  Township,  Trees,  &c.  122.  [d.) 
c.  18.  Joint  Stock  Companies,  Nuisance,  547. 

c.  21,  §  53.   Stealing  blank  Writs,  54.  (d.) 
54.  Date  of  Warrant,  158. 

7,  c.  13,  §  1,  2.  Bankrupt,  Certificate,  205.  {a.) 

8,  c.  25,  §  1,  2.  Recognizances,  1085.  {c.) 

3.  Poimda;[;c,  Statute  Staple,  Lc.  1088,  9. 

4.  Recognizances,  10i^8. 

6.  Judgments,  938,  (/.)  1086.  (c.) 

9,  c.  22.  Black  act,  122,  (e.) 

12,  c.  29,  §  1,  2.  Process,  Arrest,  Bail,  112,  154,  (/.)  159,  1()4,  5; 
167,  171,  179,  224,  239,  241,  407,  8;  419,  491. 

3.  Habeas  Corpus,  406. 

4.  Attorneys,  89. 

c.  31.   Trials  at  Nisi  Prius,  752. 
George  II. 

1,  Stat.  2,  c.  14,  §  15.  Arrest  of  Seamen,  198,  9.  200. 

2,  c.  22,  §  13.  Set  off,  663,  66(5. 

c.  23,  §  1,  3,  5,  6,  10,  12,  13,  15,  17,  18,  20,  21.    Attorneys, 

61,  2,  3,  67,  (/.)  71,  &c.  159,  319. 


xxiv  TABLE  OF  STATUTES. 

CIeokge  II.  continued. 

2,  c.  23,  §  28.  Costs,  28,  325,  G ;  330,  31,  2,  3;  336. 

24.  Attorneys  practising,  without  being  admitted,  61,  2, 

71,  kc. 

26,  7.  Attorneys,  Coroner's  Clerks,  &c.  62,  3. 
c.  24.  Bribery,  518. 
c.  36,  §  8.  Ships'  Articles,  Seamen's  Wages,  592. 

3,  c.  25,  §  8,  11,  18,  19.  Jury,  778,  785,  855.  [a.) 

14.  View,  856.  (/.) 

15.  Special  Jury,  789.  (/.) 
c.  26.  Penal  Actions,  Venue,  430. 

4,  c.    7,  §  2,  3.  Qualification  of  Jurors,  857.  {b.) 
c.  26.  Jeofails,  928. 

c.  28,  §  1.  Tenant  holding  over.  Double  Value,  172,  3. 

2.  Ejectment,  Service  of  Declaration,  1197.  Demand  of 
Kent,  1200.  Actual  Entry,  1201,  1204.  Affidavit  of 
service,  1217. 

Motion  and  rule  for  judgment,  1218,  19, 

4.  Ejectment,  Staying  Proceedings,  490,  1231,  1134,  5. 

5,  c.  18,  §  2.  Attorneys,  Justices,  84. 

c.  27,  §  1,  2,  3,  4,  5.  Process,  Arrest,  Bail,  93,  103,  112,  164, 

240,  241,  2  ;  359,  419. 
c.  30,  §  3.  Bankrupts,  Enlarging  time  for  surrender,  200. 

5.  Bankrupts,  Privilege  from  Arrest,  200,  201,  1049. 

6.  Bankrupts,   Bringing  up,  or  attending,   in  custody, 

202.  {b.) 

7.  Bankrupts,   Discharge,  Pleading,    204,  (e.)  212,  id. 

{b.)  292,  {d.)  648.  {e.) 
9.  Bankrupts,  Pleading,  Future  Effects,  204,  648,  1010, 

1109,  1111.  {b.) 
13,  Bankrupts,  Certificate,  Discharge,  212,  id.  (6.)  292. 

{d.  e.) 
18.  Bankrupts,  Habeas  Corpus,  Commitment,  287.  (c.) 
23.  Bankrupts,  Bond  to  Chancellor,  585, 
25.  Bankrupts,   Petitioning    Creditor,  Assignees,   Costs, 

330,  (A.)  331. 
28.  Bankrupts,  Set  off,  666,  id.  (k.) 
46.  Bankrupts,   Petitioning   Creditor,   Assignees,   Costs, 

330,  (A.)  331, 

6,  c.  27,  §  2.  Attorneys,  72.  {g.) 

7,  c.    8.  Stock  Jobbing,  698,  767. 

c.  20,  §  1.  Ejectment  by  Mortgagee,  490,  1231,  1235,  6. 

8,  c.    6,  §  1.  18.  Registering  Judgments,  &c.,  941,  (e.)  1086. 
c.  16,  §  4.  Hundredors,  122,  (a.)  126. 

c.  20,  §  6.  Destroying  Turnpikes,  &:c.,  122,  {d.) 
c.  24,  §  4,  5.  Set  off,  663,  667.  (/.) 

10,  c.  32,  §  4.  Cutting  Hop  binds,  122.  {d.) 

11,  c,  19,  §  1,  &  3,  Fraudulent  Removal  of  Goods,  645,  910. 

12.  Notice   of  Declaration,  Ejectment,  Landlords,  987, 

1227,  8;  1229, 

13.  Ejectment,  Landlords,  1227,  &c. 

14.  Action  for  Use  and  Occupation,  668.  (e.) 


TABLE  OF  STATUTES.  XXV 

George  II.  continued. 

11,  c.  19,  §  18.  Double  Rent,  G45. 

19.  Costs,  Certificate,  953. 

21,  22.  General  Issue,  Costs,  G53,  {h.)  888,  977,  988. 

28.  Replevin  JJon.l,  7,  1038,  9. 

c.  22,  §  5.  llundredors,  122.  {d.) 

12,  c.  lo,  §  3,  4,  5,  G,  7,  8,  9,  12.  Attorneys,  Prisoners,  Gl,  71,  84, 

5;  159,327,  8. 

c.  26,  §  9.  Goldsmith's  Company,  Penalties,  Execution,  1244. 

c.  28,  §  1.   Gaming  House,  519.  («.) 

c.  29.  County  Rate,  127. 

13,  c.  19,  §  G.   Horse  racinr^,  Compoundinf];  penal  Actions,  G04. 
c.  21.  Destroying  Collieries,  cS:c.,  122.  ((/.) 

14,  c.    6.  Stealing  and  destroying  Sheep,  &,c.  122.  [d.) 
c.  10.  Costs,  954,  9G0.  (c.) 

c.  17,  §  1,  2,  3.  Judgment  as  in  case  of  Nonsuit,  491,  758,  7G2, 
770,  4,  5.  Notice  of  Trial,  Countermand,  57G,  755,  ka. 

18,  c.  20.  Notice  of  Action,  Justices,  29. 
c.  34,  §  1.  Gaming  House,  518,  19. 

19,  c.  34,  §  G.  Officers  of  Customs,  Execution  against  llundredors, 

126. 
16.  Customs  and  Excise,  Costs,  969.  (a.) 
c.  37,  §  6.  Policies  of  Assurance,  591. 

7.  Bringing  Money  into  Court,  620. 

20,  c.  19,  §  1.  Wages  of  Labourers,  528.  (/.) 
c.  24,  §  6.  Prize  Money,  529. 

c.  37,  §  2.  Rule  to  Return  Writs,  30G. 

21,  c.     3.  Process,  Affidavit,  Arrest,  Bail,  164. 

22,  c.  24.  Hundredors,  122.  (a.) 

c.  46,  §  2,  to  §  15.  Attorneys,  Sessions,  Clerk  of  the  Peace,  61, 

65,  67,  8;  74,  5;  84. 

34.  Execution  against  llundredors,  122.  ((/.) 

35.  Bail  Bonds,  Assignment,  Counties  palatine,  298.  [d.) 
c.  47.  Suggestions,  Costs,  957,  958,  {a.)  id.  (/.)  959. 

23,  c.  26,  §  15.  Attorneys,  Solicitors,  72,  3. 

c.  27.  Court  of  Requests,  Costs,  516,  957,  958,  {g.)  960.  {i.) 
c.  30.  The  like,  992,  3 ;  957,  958,  (A.)  960.  (w.) 
c.  33.  The  like,  957,  988. 

24,  c.  16.  The  like,  957. 

c.  18,  §  1,  2,  3.  Jury,  778,  {a.)  792. 

5.  Trials  at  Nisi  Prius,  752. 
c.  42.  Attorneys,  Costs,  80,  957. 

c.  44,  §  1.  Notice  of  Action,  28,  9 ;  35. 

2.  Justices,  Tender  of  Amends,  646.  (a.) 
4.  Bringing  Money  into  Court,  621. 

6.  Demand  of  Copy  of  Warrant,  33,  4,  5. 

8.  Limitation  of  Actions,  Justices,  Constables,  &c.,  19. 
c.  48.  Michaelmas  Term,  Teste  and  Return,   106,  7  ;  119,  (l.\ 

129,  {k.)  346.  {€.) 

25,  c.  34.  Court  of  Requests,  Birmingham,  Costa,  957,  8. 
c.  36.  Disorderly  Houses,  557,  597. 

c.  43.  Court  of  Re({uests,  Liverpool,  Costs,  992,  957. 


XXVI 


TABLE  OF  STATUTES. 


George  II.  continued. 

26,  c.  21,  §  8.  Arrest  on  remedial  Statute,  172. 

27,  c.  17.  Marshal,  52,  3. 

c.  20,  §  2.  Overseers,  Poors'  Rate,  Distress,  28. 

29,  c.    4,  §  14.  Arrest  of  Soldiers,  200. 

c.  36.  Action  against  Township,  Trees,  &c.,  122.  {<!.) 

39,  c.     3,  §  87.  Attorney,  Commissioner  of  Land  Tax,  84. 

c.    8,  §  20.  Arrest  of  Soldiers,  200. 


c.  19,  §  75.  Attorneys,  Costs,  61, 


325. 


31,  c.  24.  Court  of  Requests,  Yarmouth,  957. 

32,  c.    0.  Costs,  957. 

c.  28,  §  1,  2,  4,  11,  12.  Sheriff's  Officers,   Extortion,  229,  30; 

231,  2 ;  372,  528,  698,  712. 
13,  14,  15,  16,  17,  20.  Execution,  Prisoners,  374,   &c. 

379,  382,  &c,  1112. 
24.  Insolvent  Debtors,  Lords'  Act.  376. 
George  III. 

1,  c.  23.  Judges,  39. 

2,  c.  19,  §  5.  Costs,  987. 

c.  38.  Court  of  Requests,  Kingston  upon  Hull,  957. 

4,  c.  33.  Bankrupts,  Privilege  of  Parliament,  116,  (5.)  117,  205. 

5,  c.  105.  Turnpike  Act,  Limitation  of  Actions,  21. 

6,  c.  50,  §  2.  Isle  of  Man,  Affidavits,  179.  (o.) 
9,  c.  29,  Demolishing  Mills,  &c.  122.  [d.) 

10,  c.  50,  Distringas,  Issues,  Appearance,  111,  119,  192,  313. 

12,  c.  21.  Mandamus,  Costs,  950,  51. 

13,  c.  51,  §  1,  2.  Wales,  151,  320,  969.  {i.) 

c.  63,  §  44.  East  Indies,  Mandamus,  486,  813. 

13,  c.  78,  §  47.  Highway  Act,  Setting  aside  Proceedings,  528. 

79.  Highway  Act,  Bringing  Money  into  Court,  621.  (7i.) 
82.  Limitation  of  Actions,  21. 
c.  84,  §  19.  Turnpike  Act,  Staying  Proceedings,  528. 

81.   Turnpike  Act,  Bringing  Money  into  Court,  621.  [h.) 
85.  Turnpike  Act,  Limitation  of  Actions,  21. 

14,  c.  78,  §  100.  Building  Act,    Limitation  of  Actions,    Notice    of 

Action,  Costs,  21,  32,  988. 

16,  c.  34.  Insuring  Lottery  Tickets,  528. 

17,  c.  26.  Annuities,  520,"  21. 

18,  c.  36,  §  24.  Court  of  Requests,  General  Issue,  Costs,  960.  (w.) 

19,  c.  68,  §  24.  Attorneys,    Court   of  Requests,    Tower    Hamlets, 

Costs,  76,  (a.)  992,  (3.)  957,  958.  {h.) 
c.  70,  §  1,  2.  Inferior  Courts,  Arrest,  Bail,  164,  239,  (i.)  407,  8. 

4.  Inferior  Courts,  Execution,  401,  995,  1106.  {g.) 

5.  Inferior  Courts,  Error,  1101,  1149,  50;  1188.  (a.) 

6.  Inferior  Courts,  Habeas  Corpus,  407,  408. 
23,  c.  28,  §  2.  Ireland,  Error,  1140. 

c.  70,  §  29.  Excise  Officers,  Damages,  Costs,  892,  {h.)  969.  {a.) 
30,  31,  32.  Excise  Officers,  Notice  of  Action,  Tender  of 

Amends,  30,  (A.)  646.  (a.) 

33.  Excise  Officers,  Bringing  Money  into  Court,  621.  id.) 

34.  Excise  Officers,  Limitation  of  Actions,  20.  id.) 

Venue,  431,  {b.)  General  Issue,  653,  ih.)  Costs,  988. 


TABLE  OF  STATUTES.  XXVU 

George  III.  continued. 

24,  c.  25.  East  IndicR,  Mandamus,  Witnesses,  813.  [g.) 

sess.  2,  c.  47,  §   35,  39.   Custoin-huusc   Ofiicers,   Jjimitation   of 

Actions,  20.  (</.)  Notice  of  Action,  30.  [h.) 

Venue,  431.  (<•.)  Brin;j;in^  Money  into  Court, 

621.  (e.)  Tender  of  Amends,  040.  (a.) 

25,  c.  35,  §  1.  Extent,  Sale  of  Lands,  Costs,  1045,  1008,  9 ;  1070, 

1082. 
c.  80,  §    1,  5,  7,  8,  0.  Certificates  of  Attorneys,  75,  6 ;  77,  8, 

9;  96. 
13.  Memorandum  of  Warrant,  90,  149. 
29.  Tcnaltics,  78. 

26,  c.  40,  §  31.  Customs,  Damages,  Costs,  892.  [h.) 
c.  44.  Execution,  Prisoners,  374,  382,  3. 

c.  63,  §  1,  2.  Letter  of  Attorney,  Wages,  Prize  Money,  529.  (?'.) 
c.  77,  §  13.  Customs  and  Excise,  519. 

27,  c.    1.  Lottery  Act,  Arrest,  173. 

28,  c.  37,  §  23.  Customs  and  Excise,  Limitation  of  Actions,  Venue, 

General  Issue,  Costs,  20,  431,  {c.)  653,  988. 

24.  Customs  and  Excise,  Damages,  Costs,  892,  908. 

25,  20,  27.  Customs  and  Excise,    Notice  of   Action, 

Tender  of  Amends,  30,  040.  {a.) 
28.   Customs  and  Excise,  Bringing  Money  into  Court, 

021,  (..) 

31,  c.  32,  §  22.  Roman  Catholics,  71. 

32,  c.  33,  §  22.  Arrest  of  Seamen,  198,  {e.)  199,  200. 

c.  34,  §  1,  2.  Letter  of  Attorney,  Wages,  Prize  Money,  529.  (^.) 

8.  Petty  Officers  in  Navy,  198.  (/. ) 

c.  58.  Quo  Warranto,  Pleading  double.  Costs,  655,  952. 

33,  c.    4,  Aliens,  292.  {k.) 

c.    5,  §  3,  4,  5.  Insolvent  Debtors,  375,  0,  7;  379,  382,  &c. 
c.  54,  §  11.  Friendly  Societies,  Actions,  8. 
c.  08.  Execution,    Wales,    Counties    Palatine,    Recognizances, 
Damages,  Costs,  401,  (h.)  995,  1100,  {g.)  1188. 

34,  c.  14,  §  1  to  §  8.   Stamp  Duty,  02,  70,  72.  (/. ) 

c.  58.  Recognizance,  County  Palatine,  Execution,  400,  7;  1188. 

c.  09.  Insolvent  Debtors,  388,  544,  1112. 

35,  c.  55,  §  10,  Stamp  Duties,  Receipts,  520.  {a.) 
30,  c.    9.  iluiidredors,  122.  {d.) 

c.  104,  §  38.  Lotteries,  519,  20. 

37,  c.  33,  §  03.  Arrest  of  Soldiers,  199.  {a.) 

c.  45,  §  2.  Bank  Act,  Staying  Proceedings,  187,  520. 

9.  Bank  Act,  Affidavit  to  hold  to  Bail,  187. 
c.  00.  Articles  of  Clerkship,  stamps,  04.  (//.) 

c.  80,  §  3,  4.  Prisoners,  Allowance,  380,  81. 

c.  90,  §  26,  &c.  Attorneys'  Certificates,  75,  &c.  90. 

c.  91,  §    1.  Bank  Act,  Staying  Proceedings,  520. 

8.  Bank  Act,  Affidavit  to  hold  to  Bail,  Deposit  of  Bank 

Notes,  187. 
c.  93.  Attorneys'  Certificates,  Indemnity,  64.  (//.) 
c.  112.   Insolvent  Debtors,  212.  (/r.) 

38,  c.    1,  §    1.  Bank  Act,  Staying  Proceedings,  520. 


XXVIU 


TABLE  OF  STATUTES. 


George  III.  continued. 

38,  c.    1,  §    8.  Bank  Act,  Affidavit  to  hold  to  Bail,  Deposit  of  Bank 

Notes,  187. 
c.  50,  §    0.  Aliens,  Privilege  from  Arrest,  215. 
c.  52,  §    1.  County  Palatine,  Trial,  723,  4. 

12.  Indictment,  Recognizance,  724.  (a.) 

39,  c.  50.  Lords'  Act,  374,  383. 

c.  Ixix.  §  184,  5.  Limitation  and  notice  of  Action,  West  India 

Dock  Company,  8,  9,  31,  2. 
39  k  40,  c.  xlvii.  §  150,  51.  Limitation  and  Notice  of  Action,  Lon- 
don Dock  Company,  8,  9,  20,  31,  2. 
c.  67.  art.  4.  Peers,  Privilege  from  Arrest,  192. 
c.  72.  Attorneys'  Certificates,  Indemnity,  64.  {h.) 
c.  civ.  §  10,  11,  13.  Court  of  Requests,  Attorneys,  80,  954,  5 ; 

957,  958.  {e.) 
c.  105.  Original  "Writ,  County  Palatine,  107. 

41,  c.    24.  Demolishing  Mills,  &c.,  122.  {d.) 

c.     64.  Execution,  Judgments,  Prisoners,  1030.  (a.) 

c.    70.  Insolvent  Debtors,  212.  {k.) 

c.  106.  Aliens,  Privilege  from  Arrest,  215,  16. 

42,  c.    40.  Bank  Act,  Affidavit  to  hold  to  Bail,  187. 
c.    85,  §  1,  2,  3.  Mandamus,  Witnesses,  813.  [g.) 

6.  Persons  exercising  public  Employments,  Venue,  431, 

653,  (6.)  988. 
92,  §  23.  Aliens,  Privilege  from  Arrest,  215.  (c.) 
c.  C.   Turnpike  Act,  Limitation  of  Actions,  21. 

43,  c.  18,  §    2.  Bank  Act,  Affidavit  to  hold  to  Bail,  Staying  Proceed- 

ings, 187,  188,  520. 
c.  46,  §    1.  Arrest,  Costs,  178. 

2.  Arrest,  Bail,  Costs,  Deposit,  Motions,  Sheriff,  227, 

&c.,  244,  {c.)  308,  315,  487,  8;  1040. 

3.  Arrest,  Costs,  Execution,  Motions,  174,  489,  982,  3. 

4.  Costs,  Motions,  969. 

5.  Execution,  Poundage,  997,  1040. 

6.  Bail,  Supersedeas,  279. 

c.  84,  §  12.  Non-residence,  Penalties,  519. 
c.  99,  §  37.  Execution,  King's  Taxes,  1016,  17. 
41.  Collectors  of  Taxes,  Costs,  1082. 
70.  Limitation   of  Actions,  Notice  of  Action,  Venue, 

Tender  of  Amends,  Pleading, 
Treble  Costs,  20,  21,  32, 
3  ;  646,  (a.)  653, 
(6.)  988. 
Habeas  Corpus,  Courts  Martial,  809. 
Port  of  Bristol,  Interest,  Damages,  873. 
Justices,  Damages,  Costs,  30,  892,  3. 
§  1,  28.  Aliens,  Privilege  from  Arrest,  215,  {c.)  293. 

44,  c.     13.   Seamen,  Penal  Action,  Sheriffs,  198.  (e.) 
§  21.  Arrest,  Volunteer  Drill  Serjeants,  &c.,  199. 
Attorneys'  Certificates,  Indemnity,  64.  (li.) 
§  10.   Statnp  Duties,  Staying  Proceedings,  78,  520. 

14.  Stamp  Duties,  Certificates,  Penalties,  77. 


c. 

140. 

c. 

cxl. 

c. 

141. 

c. 

155, 

c. 

13. 

c. 

54, 

c. 

59. 

c. 

98, 

TABLE  OF  STATUTES.  Xxix 

George  III.  continued. 

44,  c.    08.  SchcJ.  (A.)  Stamp  Duties,  Attorneys'  Certificates,  65, 

08,  (6.)  71,  7-2,  (/.)  70,  [b.) 
90,  (e.)  540.  {I.) 
c.  102.   ITa])eas  Corpus  ad  testificanduiri,  800,  10. 
c.  108.   Insolvent  Debtors,  212,  {k.)  1112.  (/>.) 

45,  c.       3.  Insovent  Debtors,  212.  (/r.) 

c.  Ixvii.   Court  of  Requests,  Removal,  City  of  Bath,  &c.  402,  057. 
c.    92,  §  3,  4.  Witnesses,  810.  {a.) 
c.  124,  §  1.  Bankrupts,  Privilege  of  Parliament,  117. 
3.  Appearance,  110,  120,  21 ;  245,  410. 

46,  c.     37.  Witnesses  refusing  to  answer,  700,  (e.)  1050.  (e.) 

c.  xxxvii.  §  22.   Court  of  Requests,  Removal,  Grimsby,  &c.  402. 
c.  Ixvi.  §  22.  Court  of  Requests,  Removal,  Isle  of  Wight,  id.  057. 

050,  00. 
c.  Ixxxvii.  Court  of  Requests,  Southwark,  &c.  002,  3,  4 ;  057, 

058,  (a.)  050. 
c.  Ixxxviii.  Court  of  Requests,  Brixton,  Costs,  057. 
c.  108.  Insolvent  Debtors,  212.  {k.) 

c.  cxiv.  §  26.  Court  of  Requests,  Removal,  Stockport,  402. 
c.  cxxxv.  §  24.  Court  of  Requests,  Removal,  Beverly,  id. 
c.  135.  §  1,  2.  Bankrupts,  Arrest,  204,  (e.)  id.  (g.)  067. 

47,  sess.  1,  c.  4.  Court  of  Requests,  Blackheath,  Brondey,  BecTien- 

ham,  &c.  057. 
c.  xiv.  Court  of  Requests,  Birmingham,  Costs,  id.  058. 
c.  XXXV.  Court  of  Requests,  Removal,  Costs,  Sandwich,  Rams- 

.  gate,  &c.  402,  057. 
c.  xxxvi.  §  26.  Court  of  Requests,  Removal,  Ilales  Owen  &c., 

402,  3. 
c.  xxxvii.  §  23.  Court  of  Requests,  Removal,  Lincoln,  id. 
sess.  2,  c.  i.  §  24.  The  like,  id. 

c.  vii.  §  24.  Court  of  Requests,   Removal,   Costs,  Isle  of 

Thanet,  id.  957. 
c.  40.  Members  of  Parliament,  Suits  in  Equity,  117.  {c.) 
c.  xl.  Court  of  Requests,  Removal,  Costs,  Gravesend,  kc. 

403,  957. 
c.  74.  Traders,  Real  Estates,  Assets,  937,  1031.  (b.) 
c.  Ixxviii.  §  31.   Court  of  Re(piests,  Removal,  Lincoln,  402. 
c.  Ixxix.  §  26.  Court  of  Requests,  Removal,  Ipswich,  &c. 

403. 

48,  c.  xi.  Port  of  Bristol,  Interest,  Damages,  873. 

c.  xliii.  §  23.  Court  of  Requests,  Removal,  Manchester,  403,  [h.) 

057. 
c.  1.  §  30.  Court  of  Requests,  Removal,  Codsheath,  403. 
c.  li.  Court  of  Requests,  Costs,  Rochester,  &c.  957. 
c.  xcviii.  §  31.  Court  of  Requests,  Execution,  Ashton-under-Lyne, 

^  &c.  005.  {g.) 
c.  ciii.   Court  of  Requests,  Costs,  Sheffield,  &c.  057. 
C.  cix.   Court  of  Roijuests,  Costs,  Kingston-upon-IIull,  id. 
c.  ex.   Court  of  Requests,  Removal,  Wolverhampton,  403. 
c.  123.  Insolvent  Debtors,  Small  Debts,  380,  &c.,  480,  1112. 


XXX 


TABLE  OF  STATUTES. 


c. 

151. 

c. 

6. 

c. 

27, 

c. 

28. 

c. 

115. 

c. 

121, 

George  III.  continued. 

48,  c.  141.  ^0.  V.  Rule  2.  Sheriff,  Notice  of  Action,  Property-tax, 

32. 
c.  149.  Sched.  Part.  I.  Stamp  Duties,  65,  {c.)  G8,  (a.)  71,  (e.)  72, 

(/•)  76. 
11.  §  III.  Stamp  Duties,  96,  (e.)  452,  496, 
ic.)  546,  828,  1206. 
Appeals,  Scotland,  1140.  {g.) 

49,  c.      6.  Prisoners,  Lords'  Act,  Costs  in  Equity,  375. 
§  8.  Insolvent's  Certificate,  Newfoundland,  211,  648. 
Coroner's  Clerks,  Attorneys,  62,  8. 
Insolvent  Debtors,  212.  {k.) 
§  2.  Execution,  Bankrupt,  208,  1009.  {g.) 

6.  Bankrupt,  Assignee,  1111.  [d.) 

8.  Bankrupt,  Sureties,  Pleading,  209,  (a.)  291,  648. 

9.  Bankrupt,  Certificate,  Arrest,  205.  (a.) 
10.  Bankrupt,  Notice,  Evidence,  Costs,  613,  668,  9. 

13.  Bankrupt,  Examination,  202.  (h.) 

14.  Bankrupt,  Arrest,  Bail,  203,  4;  291,  1030. 
c.  121,  §  17.  Bankrupt,  Annuity,  209.  {b.) 

50,  c.      4.  Attorney's  Certificates,  Indemnity,  64.  (/i.) 
c.  xlvii.  Treble  Costs,  Distress,  Replevin,  977,  988. 

51,  c.  124,  §  1.   Original  Writs,  Process,   Arrest,  Bail,  Costs,  103, 

{h.)  165,  {c.)  178,  {h.)  239.  {h.) 

2.  Distringas,  Proceedings  by  Original,  113,  &c.  155, 

245,  419.  (a.)  454. 

3.  Inferior  Courts,  Arrest,  Bail,  406,  7,  8 ;  1149,  50. 
c.  125.  Insolvent  Debtors,  208,  9 ;  212,  [k.)  359,  401. 
c.  127.  Bank  Notes,  187.  (/.) 

52,  c.     13.  Insolvent  Debtors,  375.  {d.) 
c.     26.  Articles  of  Clerkship,  Indemnity,  64.  (A.) 
c.    34.  Insolvent  Debtors,  Lords'  Act,  376,  379. 
c.    50.  Bank  Notes,  187.  (/.) 

c.  113.  Treble  Costs,  Birmingham  paving  Act,  988. 
c.  130.  Demolishing  Manufactories,  &c.  122,  {d.) 
c.  160.  Prisoners,  Allowance,  372. 
c.  165.  Insolvent  Debtors,  212.  {k.) 

53,  c.       5.  Bank  Notes,  187.  (/. ) 
c.       6.  Insolvent  Debtors,  212.  {k.) 
c.    21.  Prisoners,  Allowance,  372. 
c.  102.  Insolvent  Debtors,  213,  [h.)  id.  (w.)  247,  {t.)  375.  {d.) 


c.  108.  Extent  in  Aid,  Costs,  Stamp  Duties,  1082. 

c.  113.  Prisoners,  Allowance,  372. 

c.  127,  §  1.  Excommunication,  373,  (c.) 

7.   Church  Rate,  19. 
c.  141.  Annuities,  490,  522,  3,  591. 
c.  ccxvi.  Insra-ance  Companies,  Action,  8,  9. 
54,  c.       5.  Articles  of  Clerkship,  Indemnity,  64.  (A.) 
c.       6.  Non-residence  Penalties,  519. 
c.    23.   Insolvent  Debtors,  388,  396.  {a.) 
c.    28.  Insolvent  Debtors,  7,  212,  {k.)  1112.  {h.) 


388,  9. 


TABLE  OF  STATUTES.  XXxi 

George  III.  continued. 

54,  c.    44.  Non-residence,  Penalties,  519.  (</.) 
c.    52.  Bank  Notes,  187.  (/.) 

c.     54.  Non-residence,  I'enaltiep,  519.  {d.) 

c.  137.  Scotch  Bankrupt  Act,  7. 

c.  144,  §  13,  14.  Attorneys,  Certificates,  75. 

c.  155,  §  1.  Aliens,  Privilege  from  Arrest,  215.  (c.) 

c.  170,  §  8.   Actions  on  Bastardy  Bonds,  7,  8. 

55,  c.     17.  Articles  of  Clerkship,  Indemnity,  04.  (//.) 
c.    42.  Bill  of  Excei)tions,  803.  {b.) 

c.    50.  Gaol  Fees,  372. 

c.    00.  Letter  of  Attorney,  Wages,  Prize  Money,  529.  {{) 
c.  104,  §  1,  Aliens,  Privilege  from  Arrest,  215.  (c.) 
c.  157.  Affidavits,  Witnesses,  179,  {o.)  810.  {a.) 
c.  184.  Sched.  Part.  I.  Stamp  Duties,  08,  {a.)  71,  72,  (/.)  70, 

490,  (c.)  593, 1085,  1206. 
II.   §  III.   Stamp  duties,  see  Index,   tit. 

Stamps,  96.  (e.) 

56,  c.    33.  Articles  of  Clerkship,  Indemnity,  64.  (7i.) 
c.    50.  Execution,  Farming  Stock,  1002. 

c.     51.  Turnpike  Act,  Limitation  of  Actions,  21. 

c.    68.  Gold  Coin,  Tender,  187. 

c.    76.  Court  of  Requests,  Bristol,  Costs,  957. 

c.    86,  §  19.  Aliens,  Privilege  from  Arrest,  215.  {c.) 

c.  100.  Habeas  Corpus,  347. 

c.  102.  Insolvent  Debtors,  213,  (w.)  388. 

c.  110.  Gaol  Fees,  372. 

c.  125.  Destroying  Fire  Engines,  &c.  122.  (d.) 

c.  138.  Pillory,  Perjury,  275.  {h.) 

57,  c.    11.  Adding  and  justifying  special  Bail,  Bail  Court,  262. 

Insolvent  Debtors,  378. 
c.     14.  Articles  of  Clerkship,  Indemnity,  04.  (//.) 
c.    19,  §  38.  Destroying  Fixtures,  &c.  122.  {d.) 
c.    99,  §  5,  &c.  Non-residence,  519.  [d.) 
40.  Notice  of  Action,  32,  3. 
43.  Bringing  Money  into  Court,  020. 
45.  Security  for  Costs,  535.    Double  Costs,  988. 
47.  Execution,  1020. 
c.  101.  Continuation  of  51  Geo.  IIL  c.  124,  pp.  103,  {h)  113,  {b.) 

105,  (f.)  178,  (//)  239.  {k.) 
c.  117,  §  1,  2,  3.  Extent  in  Aid,  Fiat,  Levy,  1059,  1003,  1004, 

&c. 
4,  5.  Extent  in  Aid,  Simple  Contract  Debts,  &c.  1060, 

61. 
6.  Extent  in  Aid,  Relief  on,  375,  (a.)  1065,  6. 
c.  130,  §  8.  Savings  Banks,  Actions,  8.  {b.) 

58,  c.       5.  Articles  of  Clerkship,  Indemnity,  04,  (//.)  65.  {a.) 

c.     30.   Costs,  Inferior  Courts,  Assault  and  Battery,  Slanderous 

Words,  902,  967. 
c.    96.  Aliens,  Privilege  from  Arrest,  215.  {c.) 

59,  c.     11.  Articles  of  Cleikship,  Indemnity,  64.  (/*.) 

c.    12,  §  17.  Churchwardens  and  Ovcrbcers,  Actions,  &c.  7. 


jjXjjj-  TABLE  OF  STATUTES. 

George  III.  continued. 

59,  c.    23.  Cash  payments,  187,  520.  {h.) 
c.    49.  The  like,  187,  8 ;  520.  {b.) 
c.    64.  Warden  of  Fleet,  Escape,  324. 
c.  128,  §  7.  Friendly  Societies,  Actions,  8. 
c.  129,  §  1.  Insolvent  Debtors,  388. 
60  &  1  Geo.  IV.  c.  10.  Articles  of  Clerkship,  Indemnity,  64.  {h.) 
George  IV. 

1,  c.  21.  Trials  at  Nisi  Prius,  Middlesex,  752.  (5.) 
c.  55,  §  1.  The  like,  752. 

2.  Trials  at  Nisi  Prius,  London  and  Middlesex,  id.  753. 

3.  Insolvent  Debtors,  378. 

1,  c.  55,  §  4.  Oaths,  Advocates,  Attorneys,  42,  70,  71. 

5,  6.  Summonses  and  Orders,  Counties  Palatine,  510, 

697. 
c.  87,  §  1.  Ejectment,  Bail,  &c.,  489,  1207,  1209,  1217,  1221, 

&c.  1230. 

2.  Ejectment,  Evidence,  Damages,  Mesne  Profits,  1238, 

1239. 

3.  Ejectment,  Error,  Execution,  Recognizance,  1244,5; 

.1253. 

4.  Action,  Ejectment,  Recognizance,  1222,  3. 

5.  Ejectment,  Great  Sessions,  Wales,  399. 

6.  Ejectment,  Double  Costs,  988. 

7.  Ejectment,  Saving  Clause,  1222. 

c.  105.  Aliens,  Privilege  from  Arrest,  215.  {c.) 

c.  119.  (Insolvent  Debtors'  Act,)  247,  {t.)  388,  9 ;  1112.— §  4, 

pp.  375,  {d.)  390.  (rt,  6.)— §  5,  p.  372.  (^.)— §  6,  p. 

391.  («.)—§  7,  p.  390.  {h.)—  §  10,  p.  393.  («.)—  § 

14,  p.  390.  (5..)-§  16,  pp.  375,  {d.)  392.  {dj,  g.)- 

§  19,  p.  373.  («..)-§  22,  p.  392.  {c.)—%  25,  pp.  395, 

{d.)  396.  (a.)— §  26,  pp.  213,  (m.)  214.  (c.)— §  28, 

pp.  393,  {d.)  396.  («.)—§  29,  pp.  395,  {d.)  396,  (a.) 

1112.  (6.)— §  30,  pp.  395,  ((7.)  1112.  (6.)— §  38,  p. 

1024.— §  40,  pp.  395,  {h.)  1066.  (^.)— §  41,  p.  1066. 

(c.)— §  42,  3,  p.  395.  («.)-§  44,  p.  394.  [h.) 

1  &  2,  c.     5.  Articles  of  Clerkship,  Indemnity,  64.  iji.) 

c.  16.  Court  of  King's  Bench,  Sittings  out  of  Term,  39,  40. 
c.  26.  Bank  Act,  Resumption  of  Cash  Payments,  187.  (/.) 
c.  46.  Assizes,  Jury,  787.  (c,  c7,  e.) 

c.  48.  Attorneys  and  Solicitors,  Members  of  Universities,  63, 

69. 
3,  c.  10.   Opening  Commissions  upon  Circuits,  65,  id.  {a.)  41. 
c.  12.  Articles  of  Clerkship,  Indemnity,  Certificates,  64,  5.  (Ji.) 
c.  13,  §  149.  Mutiny  Act,  Treble  Costs,  988.  [l) 
c.  16.  Attorneys  and  Solicitors,  Members  of  Universities,  63. 
c.  33.  Proceedings  against  Hundredors,  &c.,  122.  {d.) 
c.  39.  Warrant  of  Attorney,   Cognovit  Actionem,  Bankruptcy, 

Satisfaction,  555,  561,  1041.  {d.) 
c.  69.  Fees,  Officers  of  Courts,  &c.  88.  [c.) 
c.  81,  §  2.  Bankruptcy,  Witnesses,  Costs,  807.  {d.) 

11.  Actions  by  Assignees  of  Bankrupts,  Partners,  7.  (i?.) 


TABLE  OF  STATUTES.  XXxiii 

George  IV.  continued. 

3,  c.    87.  Court  of  Exchequer,  Trial  of  Issues,  752.  (6.) 
c.    92.  Annuities,  Memorials,  490,  526,  id.  {d.) 

c.    97.  Aliens,  Privilege  from  Arrest,  215.  (c.) 

c.  102.  Court  of  King's  Bench,  Sittings  out  of  Term,  40. 

c.  123.  Insolvent  Debtors,  213,  (m.)  214,  388. 

§  8.  The  like.  Prisoners  within  the  Walls,  389.  {g.) 

11.  The  like,  Prisoners,  Supersedeas,   7,  {c.)  213,  {m.) 

371.  {g.) 

12.  The  like.  Married  Women,  394.  {a.) 
C.  126.  (General  Turnpike  Act:)  519.  (6.) 

§    74.  Actions,  8,  9. 
144,  Bringing  Money  into  Court,  G21.  (/*,) 
147.  Limitation  of  Actions,  21. 

4,  c.    1.  Articles  of  Clerkship,  Indemnity,  G4,  5,  [h.)  G5.  (a.) 
c.  95.  General  Turnpike  Act,  519.  (6.) 

c.  cxxiii.  §  12,  &c.  Court  of  Requests,  Southwark,  Costs,  958,  [a.) 

id.  (/.)  959,  (/<:.)  9G0.  (/.) 

5,  c.    6.  Articles  of  Clerkship,  Indemnity,  Certificates,  64,  5.  (/t.) 
c.  18,  §  6.  Constables,  Warrants,  Jurisdiction,  34.  {e.) 

c.  37.  Aliens,  Privilege  from  Arrest,  215.  (c.) 

c.  41.  Stamp  Duties,  96,  322,  (m.)  452,  454,  (e.)  496. 

c.  61.  Insolvent  Debtors,  388. 

§  12.  Prisoners  within  the  Walls,  389.  [g.) 
16.  Insolvent  Debtors,  Warrant  of  Attorney,  Cognovit 

555,  561. 
c.    73.  Copartnership,  Bankers,  Ireland,  Actions,  9. 
c.  106.  §  1.  Wales,  Great  Sessions,  Witnesses,  806.  (/.) 
2,  3,  4,  5.  New  Trial,  905,  6. 

6.  Returns  of  Writs  of  Execution,  998.  {I.) 

7.  Rules  to  return  Writs,  307. 

8.  Rules  grantable  in  Vacation,  486,  7 ;  (w.)  598.  {l.\ 

9.  10.  Commissions  for  taking  Affidavits,  &c.  491,  2.  {l.) 

11.  Rules  and  Orders,  510. 

12.  Motions  and  Petitions,  &c.  id. 

13.  Writs,  129. 

14.  Testatum  Executions,  1022. 

15.  Enforcing  Rules,  Orders  and  Decrees,  401,  {b.)  995. 

16.  Removing  officers  of  Great  Sessions,  232,  3.  (c.) 
19,  20,  21,  2.  Trifling  Actions,  Writs,  Nonsuit,  Costs, 

151,  320,  969,  70 
23.  Certiorari,  Notice,  399. 

28.  Taking  Affidavits  by  Commissioners,  491,  2.  (?.) 

29.  Qualification  of  Jurymen,  782. 

6,  c.  16.  (Bankrupt  Act:) 

§  9.  Traders,  Privilege  of  Parliament,  116,  17. 

10.  Appearance,  id. 

11.  Act  of  Bankruptcy,  117. 

14.  Petitioning  Creditor,  Costs,  330,  31. 

31.  Actions,  Demand  of  Copy  of  Warrant,  35,  6. 

35.  Witnesses,  Expenses,  807. 
Vol.  I. — c 


ji^XXiw  TABLE  OF  STATUTES. 

George  IV.  continued. 

Q,  c.  16,  §  39.  Habeas  Corpus,  287.  (c.) 

41.  Notice  of  Action,  33. 

42.  Notice  of  Action,  Evidence,  33. 

43.  Tender  of  Amends,  621. 
Bringing  money  into  Court,  646.  [a.) 

44.  Limitation  of  Actions,  General  Issue,  Double  Costs, 

21,  33,  (a.)  653,  (6.)  988. 
47.  Proof  of  Debts,  204. 

50.  Set  off,  666.  {L) 

51.  Proof  of  Debts,  204,  5. 

52.  Sureties  for  payment  of  Annuities,  209,  291. 

53.  Bottomry  or  Respondentia  Bonds,   and  Policies  of 

Assurance,  205.  (7t.) 

54.  Annuity  Creditors,  209. 

55.  The  like,  Sureties,  id. 

56.  Contingent  Debts,  205. 

57.  Interest  on  Promissory  Notes,  &c.  209,  10 ;  873. 

58.  Costs  on  Judgments,  &c.  210. 

59.  Proving  Debts,  Election,  202,  3;  291.  {e.) 
63.  Actions  by  Assignees,  7. 

67.  Abatement,  Death  or  Removal  of  Assignees,  934. 

74.  Distress  for  Rent,  1015. 

81.  Executions,  &c.  1009,  10. 

89.  Actions  by  Assignees,  7.  (c.) 

90.  Notice   of   disputing    Petitioning   Creditor's   Debt, 

Evidence,  668,  9. 
92.  Depositions,  Evidence,  669. 
105.  Assignee,  Bankrupt,  Liability  of  future  Effects,  1111, 

12. 
108.  Execution  on  Judgment  by  Default,  &c.  570,  936, 

(e.)  1009.  (7i.) 

112.  Time  allowed  for  surrendering,  201. 

113.  Enlarging  Time  for  Surrender,  200.  (A.) 

117.  Privilege  from  Arrest,  201,  2. 

118.  Adjournment  of  last  Examination,  202. 

119.  Bringing  up,  or  attending  Bankrupt  in  Custody,  id. 
121.  Discharge  by  Certificate,  204. 

126.  Privilege  from  Arrest,  id.  212,  id.  (/.)  292. 

127.  Liability  of  future  Effects,  648,  (/.)  1111. 

131.  Liability  of  Bankrupt,  on  subsequent  Promise,  211. 
135.  Rights  and  Remedies,  under  subsisting  Commission. 

nil! 

c.    22.  Jurors,  Scotland,  782,  {b.) 
c.    42.  Bankers,  Partnership,  Ireland,  Actions,  9. 
c.    45.  Articles  of  Clerkship,  Indemnity,  64,  5.  (7t.) 
c.    46.  Articles  of  Clerkship,  Certificates,  65.  (a.) 
c.    50.  (Jury  Act:) 

§  1.  Qualification  of  Jurors,  Wales,  &c.  782,  3,  4. 

2.  Exemptions  from  serving  on  Jm-ies,  784,  5. 

3.  Disqualifications  of  Aliens,  &c.  783. 
12.  Jurors'  Book,  785. 


TABLE  OF  STATUTES. 


XXXV 


George  IV.  continued. 

6,  c.  50,  §  13.  Form  of  Venire  Facias,  778. 

14.  licturn  of  Juries,  785. 

15.  l*anel  to  be  annexed  to  Return,  id. 

16.  Venire  de  Novo,  780. 

17.  Return  of  Jurors,  in  Counties  Palatine,  78G. 

18.  The  like,  in  AVales,  id. 

19.  Copy  of  Panel,  to  be  kept  in  Sheriff's  Office,  id.  787. 

22.  Two  sets  of  Jurors,  at  Assizes,  id.  850. 

23.  Jury  process,  VicAv,  795,  790,  7. 

24.  Jury,  Views,  856. 

25.  Summoning  Jurors,  793,  4. 

26.  Balloting  for,  and  swearing  Common  Juries,  854,  5. 

27.  8,  9.  Challenge  of  jury,  852,  3,  4. 

30.  Striking  special  Juries,  789. 

31.  Qualification  of  special  Jurors,  &c.  790. 

32.  3.  Mode  of  nominating  them,  id.  791,  856. 

34.  Costs  of  special  Jury,  792. 

35.  Fees  to  special  Juries,  id. 

36.  Mode  of  striking  them,  in  Countj-  of  City  or  ToAvn, 

except  London,  792. 

37.  Talesmen,  751,  {c.)  857,  8. 

38.  Fining  Jurors  for  Non-attendance,  856. 
40.  Register,  Certificate,  id.  857. 

42.  Re-service  of  Jurors,  857. 

43.  Misconduct  of  Officer,  in  summoning  Jury,  794. 
47.  Juries  do  medietatc  linguce,  783. 

50.  Qualification  of  Jurors,  in  Liberties,  &c.  783. 

51.  Fining  Jurors,  for  Non-attendance,  856. 

52.  Qualification  of  Jurors,  on   Inquest,  &c.  582,  (cZ.) 

783,  4. 

53.  Fining  Jurors  for  Non-attendance,  id. 
58.  Double  Costs,  988. 

60.  Writ  of  Attaint,  574,  (/.)  896,  7,  (o.)  905. 
c.    82.  Sale  of  Offices,  in  K.  B.  Salaries  of  Judges,  &c.  39,  (g.) 

43,  4,  5,  6. 
c.    83.  Sale  of  Offices,  in  C.  P.  Salaries  of  Judges,  &c.  39,  (g.) 

45,  6;  48,  9. 
c.    84.  Salaries  of  Master  of  Rolls,  Vice  Chancellor,  and  Barons 

of  Exchequer,  &c.  39.  (g.) 
c.    85.   Salaries  of  Judges,  in  India,  &c.  id. 
c.    89.  Purchase  of  Offices,  Sealer  of  Writs,   Gustos  Brevium 

53,4. 

c.    95.  Serjeants,  42. 
c.    96.  Bail  in  Error,  1153,  4. 

c.  105.  Repeal  of  Acts  relating  to  Customs,  &c.  20,  [d.)  30,  (h  ) 

431,  {c.)  621,  (c.)  646,  {a.)  892,  (6.)  969.  (a.) 

c.  108.  Customs,    Smuggling,    Proceedings    against  Officers  of 

Army,  Na^•y,  or  Marines.  <S:c. 
•  §  89.  Claiming  goods  seized,  1076. 

92.  Damages,  Costs,  892,  {h.)  969.  [a.) 

93.  Notice  of  Action,  30. 


xxxvi  TABLE  OF  STATUTES. 

George  IV.  continued. 

c.  108,  §  95.  Tender  of  Amends.  646.  {a.) 

96.  Bringing  Money  into  Court,  621.  (e.) 

97.  Limitation  of  Actions,  20.     Notice  of  Action,  33. 

Venue,  431.  [e.)     General  Issue,  653.  (5.)  Treble 

Costs,  988. 
99.  Assignment  of  Bail  Bond  to  King,  298. 

100.  Proceedings  for  Penalties,  519.  {g.) 

101.  Nolle  Prosequi,  id. 

102.  Onus  probandi  of  payment  of  Duties,  &c.'on  Claimer, 

1076. 
c.  121.  Insolvent  Debtors,  389.  {g.) 
c.  123.  Costs  of  Private  Bills,  Taxation,  330. 
c.  131.  Joint  Stock  Societies,  Scotland,  Actions,  9. 
7,  c.      8.  Jurors,  Scotland,  782.  (h.) 
c.    17.  Sheriff,  Durham,  314. 
c.    37.  Juries,  East  Indies,  782.  (5.) 

c.    44.  Articles  of  Clerkship,  &c.,  57,  64,  5,  (A.)  65,  {d.)  78.  {e.) 
c.    57.  Insolvent  Debtors,  246,  [t.)  388,  9,  &c. 

§  10.  Petition  for  Discharge,  213,  (w.)  375.  {d.) 

11.  Assignment  to  provisional  Assignee,  390,  395. 

12.  Prisoners  within  the  Walls,  389,  90. 

15.  Prisoners,  Discharge,  Supersedeas,  &c.,  371. 
17.  Allowance  to  Prisoners,  372,  3. 

19.  Assignment  by  provisional  Assignee,  389. 

20.  Sale  of  Property,  &c.,  390.  {b.) 
24.  Actions  by  Assignees,  7. 

26.  Abatement  of  Suit,  934,  5. 

28.  Clergymen,  Sequestration,  Addend,  to  p.  1024.  [g.) 
31.  Distress  not  available  for  more  than  a  Year's  Rent, 

1015. 
33,  4.  Warrant  of  Attorney,  Cognovit,  555,  561. 
38.  Removal  of  Assignees,  and  Appointment  of  new 

ones,  390.  (6.) 
40.  Schedule  of  Debts,  &c.,  390,  91. 
41    to  45.  Proceedings  on  Petition,  &c.,  391,  2. 
46.  Adjudication  of  Discharge,  213,  14  ;  392. 
50,  51.  To  what  Debts  it  extends,  213,  (w.)  375,  {d.) 

392,  3. 
52.  Prisoners  within  the  Walls,  389,  90. 

55.  Arrest,  214. 

56.  Allowance  to  Prisoners,  373. 

57.  Warrant  of  Attorney  by  Prisoners,  395,  6. 

58.  9.  Proceedings  thereon,  395,  6  ;  112.  (6.) 

60.  Effect  of  Discharge,  Arrest,  214,  215,  1112.  {c.) 

61.  Effect  of  Discharge,  Pleading,  393,  &c.,  1112.  {c.) 

62.  Warrant  of  Attorney,  Satisfaction,  396. 

63.  Error  in  Schedule,  395. 

64.  When  not  entitled  to  Relief,  id. 

66.  Prisoners  removed  by  Habeas  Corpus,  394. 

72.  Married  Women,  id. 

73.  Persons  of  unsound  Mind,  id. 


TABLE  OF  STATUTES.  XXXvii 

George  IV.  continued. 

1,  c.    57,  §  74,  5.  Crown  Debtors,  &c.,  395,  lOGG,  7.  ' 

c.     75.  Annuities,  Memorials,  526. 
7  &  8,  c.    4.  Mutiny  Act,  198,  9  ;  243,  (/.)  653,  (h.)  807,  988.  {I.) 
c.    5.  Marino  Act,  198,  199,  [a]  243.  (/.)    Addend,  to  p. 

807.  (^^) 
c.  27.  Repeal  of  Statutes  of  Hue  and  Cry,  &c.,  122,  126. 
c.  29.  §  75.  Limitation  of  Actions,  Notice  of  Action,  Avenue, 
General  Issue,  Larceny,  21,  33,  431,  021,  {h.) 

646,  (a.)  970. 
c.  30,  §  41.  The  like,  id. 

c.  31.  Proceedings  against  Hundredors,  21,  27,  37, 102, 112, 

122,  &c.,  145,  193. 
c.  45.  Articles  of  Clerkship,  Indemnity,  64,  5,  (/t.) 
c.  64.  Costs  of  Private  Bills,  Taxation,  330. 
c.  71,  §    1.  Original  Writs,  Process,  Arrest,  Bail,  Costs,  103, 

165,  178,  239,  359,  419.  («.) 
2,  3,  4.  Bail,  Deposit,  Costs,  Motions,  243,  4,  5 ; 

419.  (a.) 

5.  Distringas,  Proceedings  by  Original,  113, 155, 6, 

7  ;  243,  245,  454,  {i.)  486. 

6.  Inferior  Courts,  Arrest,  Bail,  401,  406,  7 ;  1149, 

50. 

7.  Arrest,  Wales,  Counties  Palatine,  171. 

8,  9.  Process,  Arrest,  Indorsement,  160. 
10.    Scotland,  Ireland,  178. 

9,  c.  3.  (Marine  Act.) 

§    16.  Witnesses  on  Courts  Martial,  Privilege  from  Arrest, 
Attachment.     Addend,  to  pp.  198,  807.  {I'.) 

70.  Volunteer  Marines,  Privilege  from  Arrest.  Addend. 

to  p.  199.  {a.) 

71.  Appearance.  Addend,  to  p.  243.  (/.) 
c.  4.  (Mutiny  Act.) 

§    28.  Witnesses  on  Courts  Martial,  Privilege  from  Arrest, 
Attachment.  Addend,  to  pp.  198,  807. 

129.  Volunteer  Soldiers,  Privilege  from  Arrest,  Addend. 

to  p.  199. 

130.  Appearance,  Addend,  to  p.  243.  (/.) 

155.  General  Issue,  Treble  Costs,  Addend,  to  pp.  653,  {h.) 

908.  {I.) 
c.  14,  §  1.  Statutes  of  Limitations,  Acknowledgment,  Joint  Con- 
tractors, Addend,  to  p.  27.' 

2.  Pleas  in  Abatement,  Addend,  to  p.  636. 

3.  Indorsements  of  Payment,  Addend,  to  p.  19. 

6.  Confirmation  of  Promise  by  Infants,  Addend,  to  p. 

650. 
c.  15.  Variance,  Amendment,  Postea,  Addend,  to  pp.  434,  697, 

712,  900. 


CHRONOLOGICAL  TABLE  OF 

GENERAL  RULES,  ORDERS  AND  NOTICES, 

REFERRED  TO  IN  THE  FOLLOWING  WORK. 


In  King's  Bench ; 
of  James  I. 

2,  T.  1604,  reg.  1.  Filing  Pleas,  566,  (L)  672.  {g.) 

2.  Marking  Postea,  900. 

3,  H.  1605.  Motions,  Kules,  506. 

5,  H.  1607.  Bringing  Money  into  Court,  619,  {a.)  622. 

6,  E.  1608.  Return  of  Latitat,  &c.,  161. 

7,  M.  1609.  Notice  of  Bail,  253. 

13,  E.  1615.  Record  of  Nisi  Prius,  Marshal's  fees,  818.  (5.) 
17,  E.  1619.  Docketing  Judgments,  939. 

19,  H.  1621.  Wales,  Judicial  Writs,  1022.  (d.) 
Charles  I. 

8,  H.  1632.  Declaration,  Variance,  450.  (p.) 
11,  E.  1635.  Certiorari,  Error,  1172.  (/.) 

14,  H.  1638.  Habeas  Corpus,  JPrisoners,  351.  (a.) 

15,  M.  1639.  Filacers,  Signing  Writs,  43.  (/. ) 

17,  M.  1641.  Demurrer  Books,  &c.,  738,  739,  1176. 

20,  T.  1644.  Clerk  of  the  Errors,  1144.  (e.) 

21,  T.  1645.  Sheriff  of  Chester,  Return  of  Writs,  151.  {p.) 
M. Notice  of  Bail,  253. 

H. Sheriffs,  and  their  Deputies,  58. 

23,  E.  1647.  Under-sheriffs,  id.  (A.)  736. 

H. Filing  Bail-piece,  255.  (e.) 

Commonwealth. 

1649,  H.  reg.  2.  Entering  issue,  777. 

1650,  H.  reg.  3.  Filing  Bail-piece,  277.  (/.) 

1651,  M.  Bail,  Habeas  Corpus,  Notice  of  Trial,  408,  (e.)  761. 

(w.) 

1654,  M.  §  1.  Attorneys,  Bail,   Under-sheriffs,  &c..   Sheriff's 

Deputies,  58,  {h.)  60,  (/.)  74,  (a.)  82,  84, 

(/.)  86,  {i.)  247,  (/.)  Ejectment,  1201. 

2.  Sheriffs,  Bailiffs,  Warrant  to  Arrest,  58,  217. 


TABLE  OF  RULES  AND  ORDERS.  XXxix 

In  King's  Bench,  continued. 

of  Commonwealth,  continued. 

1654,  M.  §    4.  Attorneys,  GO. 

5.  Venue,  408,  (/.)  001,  (7^)  003,  {h.)  008.  {rj.) 

6.  Outlawry,  Bail,  Undertaking  to  appear,  133, 

(a.)  227. 

•  7,  8.   Bail,   Habeas    Corpus,   Procedendo,   253, 

350,  (a.)  404,  {g.\  407,  8,  9,  10. 

9.  Bail,  Habeas  Corpus,  Venue,  Attorneys,  172, 

239,  320,  (/c.)  413,  (/.)  606.  {g.) 

10.  Appearance,  Attorneys,   Undertaking  to   ap- 

pear, 80,  {d.)  94,  241.  (6.) 

11.  Habeas  Corpus,  Prisoners,  342,  (a.)  348,  354. 

12.  Declaration  by  Original,  433.  (/.) 

13.  Amendment,  707.  (i.) 

14.  Rolls,  730. 

15.  Declaration,  Imparlance,  422. 

17.  Demurrers,  Amendment,  094,  696. 

18.  Notice  of  Trial,  Costs,  758. 

20.  Special  Verdicts,  897. 

21.  Venire  de  novo,  894,  922,  {h.) 

22.  Habeas  Corpus,  Costs,  414. 

1656,  E.  Attorneys,  86. 

T.  reg.  1.  Sealing  and  Signing  Writs,  54,  149. 
2.  Clerk  of  the  Treasury,  43,  4. 

1657,  E.  reg.  1.  Docketing  Judgments,  939,  40. 

2.  Common  Bail,  243. 

3.  Entering  Issue,  777.  {h.) 
H.  Entry  of  Pleadings,  &;c.,  730. 

1658,  E.  Special  Causes,  504.  (/.) 

1659,  E.  Scaling  and  Signing  Writs,  54,  999. 
Charles  II. 

13  T.  1661.  Special  Bail,  255. 

M. Scaling  Writs,  54.  (c.) 

14  E.  1002.  Attorneys,  Attending  Court  on  Motions,  86. 

T.  rcfT.  1.  Ejectment,  Process,  Common  Bail,  239, 

1224. 
reg.  2.  Appearance  of  Attorneys,  80.     Attend- 
ance at  Judge's  Chambers,  509.  (?i.) 

14  &  15  II.  reg.  1.  Attorneys,  Attendance  on  Master,  80. 

2.  Trial  at  Bar,  751. 

15  E.  1003,  reg.  1.  Sealing  and  Signing  Writs,  54. 

2.  Warrant  of  Attorney,  548. 

3.  Clerks,  Secondary,  730.  {d.) 

4.  Sheriff's  Deputies,  Warrant,  58,  217. 
T.  §  1.  Ejectment,  Particulars,  1220. 

2.  Sealing  Record  of  Nisi  Prius,  770.  (/.) 

M. §  1.  Additions  in  Aflidavits,  179,  493. 

2.  Ac  etiam,  Arrest,  150,  175,  193. 

3.  Clerk  of  Declarations,  322. 

15  &  16  H. §  1.  Clerks,  Secondary,  730.  {d.) 


xl  TABLE  OP  RULES  AND  ORDERS. 

In  King's  Bench,  continued. 

of  CiiAiiLES  II.  continued. 

15  &  IG,  H.  1663,  §  2.  Issues,   Trial,  Entering  Causes,  764, 

(6.)  776,  (/.)  816. 

16  E.  1644,  reg.  1.  Prisoners,  369. 

2.  Error,  1155. 

T.  Filing  Pleas,  566,  (?.)*672. 

16,  M.  Bail,  Habeas  Corpus,  253,  256,  409. 

18,  E.  1666.  Signing  Pleas,  &c.  567,  672,  721,  738,  1176. 

19,  E.  1667.  Clerk  of  Declarations,  322.  (e.) 

20,  T.  1668.  Clerks,  Secondary,  730.  (d.) 

20  &  21,  H.  1668.  Issues,  Trial,  764,  {b.)  776.  (/.) 

22,  T.  1670.  Special  Bail,  280. 

24  &  25,  H.  1672.  Sealing  Writs,  55. 

28,  M.  1676.  Escape,  Prisoners,  349. 

29,  E.  1677.  Bail,  Habeas  Corpus,  408.  (e.) 

80  &  31,  H.  1678.  Filacers,  Signing  Writs,  43,  4. 

31,  E.  1679.  Filacers,  Signing  Writs,  id. 

31,  T.  1679.  Sealing  Record  of  Nisi  Prius,  776. 

32,  E.  1680.  Sealing  Writs,  54.  (e.) 

33,  E.  1681.  Copies  of  Error,  &c.  1176. 

M.  Common  Bail,  Ejectment,  239,  1224. 

36,  E.  1684.  Error^ll44,  1145,  (/.)  1155. 
James  II. 

1,  T.  1685.  Record  of  Nisi  Prius,  Rolls,  730,  776,  777.  (b.) 

2,  E.   Demurrer  Books,  &c.  505,  738,  1176. 

2  &    3   H.  1686.  Bail,  Habeas  Corpus,  407. 

3  &   4  H.  1687,  reg.  1  Pauper,  97. 

4,  E.  1688.  Warrants  of  Attorney,  Issue  Roll,  94,  734. 
William  &  Mary  : 

1.  H.  1689.  Conimon  Bail,  Judgment  on  Warrant  of  Attor- 

ney, &c.  239. 

2,  M.  1690.  Filing  Pleas,  566,  (l)  672. 

4,  T.  1692,  reg.  1.  Appearance,  Process,  238. 

2.  Common  Bail,  239. 

3.  Sealing  Writs,  54. 

5,  E.  1693,  reg.  1.  Bringing  in  Rolls,  730,  940.  (5.) 

3,  §  1.  Prisoners,  344. 

2.  Same  title,  id. 

3.  4,  5.  Same  title,  346. 

6.  Same  title,  366. 

7.  Same  title,  344. 
M.    Bail  in  Error,  1156. 

H.    Habeas  Corpus,  Prisoners,  351. 

6,  D.  1694.  Fines,  105. 
William  HI. 

8,  T.  1696,  reg.  1.  Alias  Scire  Facias,  1124,  5. 

2.  Special  Juries,  750,  788,  793. 

3,  §  1.  Bail,  Habeas  Corpus,  251,  408. 

2,  3.  Bail,  Affidavit,  252. 

4.  Bail,  Commissioners,  258. 

5.  Bail,  Exception,  id.  263. 

9,  E.  1697.  Bringing  in  Rolls.  730. 


TABLE  OF  RULES  AND  ORDERS.  xli 

In  King's  Bench,  continued. 

of  William  III.  continued. 

9,  T.  1GU7.  rrisoners,  Common  Ball.  3G9. 
M.  Bringing  in  Rolls.  730. 

10,  T.   Bringing  in  Rolls,  id. 

11.  1698.  Bail,  Habeas  Corpus,  408. 

11,  E.  1GG9,  rcg.  1.  Entering  Demurrer,  735. 

2.  Special  Bail,    Continuance   Day,    248, 

277.  {g.) 

12,  T.  1700.  Declaration,  Issue  Money,  4ol,  452,  {c.)  457, 

726. 
Anne: 

1,  T.  1702,  reg.  1.  Bail,  Render,  284,  542.  (c.) 

2.  Notice  of  Render,  Prisoners,  288,  354. 

3,  T.  1704.  Bail,  Render,  285. 
M. Attorneys,  61. 

4,  M.  1705.  Notice  of  Trial,  758. 

5,  E.  1706.  Imparlance,  462. 

M. reg.  1.  Entering  Issue,   Record  of  Nisi  Prius, 

Bringing  in  Rolls,  730,  734,  776,  777. 

2.  Warrants  of  Attorney,  452. 

3.  Time  for  Pleading,  95. 

6,  T.  1707.  Prisoners,  Recaption,  346. 

8,  M.  1709,  reg.  1.  Special  Bail,  248,  255. 

2.  Exception  to  Bail,  256. 

2,  T.  1716.  Prisoners,  343,  354,  360,  {h.)  363,  {g.)  366,  («.) 

7,  E.  1721.  Scaling  Record  of  Nisi  Prius,  776. 

8,  H.  1721.  Notice  of  Inquiry,  578. 
11,  T.  1724.  Declaration,  452.  (a.) 

M.  Attorneys,  Attendance  at  Judge's   Chambers, 

509. 
George  II. 

1,  T.  1727.  Declaration,   Rule  to  plead.  Demand  of  Plea, 

452,  (a.)  456,  474,  476,  576. 

2,  T.  1728.  Declaration,  452,  id.  {c)  456. 

H. reg.  1.  Time  for  Pleading,  464.  {i.) 

E.  1729.  Exception  to  Bail  by  Original,  294.  (c.) 

3,  M.  Prisoners,  52,  {d.)  372. 

4,  Dec.  17,  1730.  Prisoners,  id. 

E.  1731.  Warrants  of  Attorney,  549. 

5,  E.  1732,  reg.  1,  2.  Bail,  255,  6 ;  260,  280. 

3.  Scire  Facias,  1125. 
5  &  6  T, Time  for  Pleading,  465. 

Notice  to  Plead,  473. 
10,  M.  1736,  rcg.  1.  Bail-piece,  Declaration  by  the  bye,  243, 

424. 

2.  Declaration  dc  bene  esse,  Time  for  Plead- 

ing, 422,  453,456,  7; 
465,  {g.)  473. 

3.  Copy  of  Declaration,  456. 
10  &  11,  T.  1737.  Entering  Causes,  818. 


Xlii  TABLE  OF   RULES  AND  ORDERS. 

In  King's  Bench,  continued. 
of  George  II.  continued. 

14,  M.  1740,  reg.  1.  Attorneys,  Bail,  247.  (/.) 

2.   Sheriff's  Officer,  Bail,  247. 
H.  1741.  Entry  and  Trial  of  Causes,  818. 

15,  E.  1742,  reg.  1.  Ac  etiam,  37,  151,  450,  1099. 

2.  Affidavits,  Commissioners,  179. 

3.  Declaration,  Prisoners,  358. 

20,  H.  1746.  Attachment  of  Privilege,  319. 
30,  M.  1756,  Enlarged  Kules,  505. 

Entering  and  arguing  Special  Causes,  504. 

32  &   33,  T.  1759.  High  Bar  Money,  509. 

George  III. 

3,  H.  1763.  Attorneys,  Residence,  72. 

6,  H.  1766.  Enlarged  Rules,  505. 

T.  Rule  to  return  Writ,  and  bring  in  Body,  307, 

310. 

7,  M, Penal  Actions,  Compounding,  557. 

8,  H.  1768.  Abode  of  Attorneys,  Service  of  notices,  &c., 

72.  (a.) 

E.  Bail,  Render,  Commitment,  286. 

15,  H.  1775.  Enlarged  Rules,  505. 

17,  M.  1776.  Enlarged  Rules,  id. 

T.  1777.  Attachment,  169,  307. 

19,  T.  1779.  Oyer  of  Original  Writ,  588. 

King's  Bench  Prison,  Prisoners,  Supersedeas, 

52,  {d.)  368,  372. 

21,  T.  1781.  King's  Bench  Prison,  52,  {d.)  372. 

22,  T.  1782.  Declaration,  Time  for  Pleading,  453,  456,  465. 

23,  M. Original  Writ,  Costs,  103. 

H.  1783.  Writ  of  Inquiry,  580. 

26,  H.  1786.  Prisoners,  343,  354,  360,  61 ;  366,  370. 

28,  E.  1788.  Justifying  Bail,  262. 

29,  M. Counsel,  Affidavits,  508. 

30,  E.  1790.  Short  Notice  of  Trial,  472. 

Rules  of  King's  Bench  Prison,  373.  (5.) 

Day  Rules,  374. 

Bail-pieces,  240. 

T.  Writs,  Custos  Brevium,  308. 

Trial  by  Special  Jury,  793,  {h.)  817. 

31,  M. Ejectment,  Rule  for  Judgment,  1221. 

31,  M.  1790.  Bringing  Money  into  Court,  626. 
E.  1791.  Affidavits  of  Illiterate  Persons,  495. 
T.  Sheriff,  Rule  to  bring  in  Body,  313. 

Attorneys,  QQ,  69. 

32,  M. Sheriff,  Returning  Writs,  Attachment,  308. 

II.  1792.  Attendance  on  Master,  86,  336. 

Entering  Causes,  818.  {b.) 

33,  E.  1793.  Re-sealing  Distringas,  and  Record  of  Nisi  Prius, 

776,  781,  918.  {a.) 

Compounding  Penal  Actions,  557. 

T.  Bail,  282. 


TABLE  OF  RULES  AND  ORDERS.  xliii 

In  King's  Bench,  continued. 
of  George  III.  continued. 

33,  T.  17U3.  Attorneys,  G9. 

34^  M. Interrogatories  on  Attachment,  54,  [c.)  4»1. 

Seal  Ollice,  54. 

II.  17'.I4.  Peremptories,  482. 

Entering  Causes,  81G. 

35,  11.  1795.  Issue  Money,  363,  (h.)  727,  739. 

E.  Rules  of  King's  Bench  Prison,  373.  (6.) 

T.  Midsummer  day,  153.  [a.) 

Attendance  on  Judge's  Summons,  470. 

Justifying  Bail,  202. 

36^  M. Filing  Aflidavits,  501. 

Justifying  Bail,  272. 

Issue  Money,  727.  [c.) 

Rule  to  set  aside  Award,  498. 

11.  170G.  Affidavits  on  Motions,  49G. 

Enlarged  Rules,  506. 

E.  Insolvent  Debtors,  380. 

T.  Rules  of  King's  Bench  Prison,  373.  {h.) 

37   M. Affidavits  by  illiterate  Persons,  or  several  Depo- 

'  nents,  495. 

Costs  on  Motions,  503. 

Day  Rules,  374. 

H.  1797.  Insolvent  Debtors,  378. 

T.  Intitling  Affidavits,  180. 

38,  M. Special  Cases,  492,  504,  899. 

H.  1798.  Demurrer  Books,  505,  738,  {g.)  1176.  [e.) 

40,  T.  1799.  Paper  Books,  504,  738,  1176. 
M. NcAV  Trials,  914. 

41,  M.  1800.  Service  of  Rules,  &c.,  499,  672. 
E.  1801.  Prisoners,  Committitur,  364. 

Peremptories,  506. 

42,  M. Warrant  of  Attorney,  Defeazance,  545,  555. 

'  T.  1802.  Annuity,  527. 

44,  H.  1804.  Trial  by  Special  Jury,  793,  ih.)  817. 

45,  H.  1805.  Day  Rules,  374. 

46,  II.  1806.  Justifying  Bail,  262.  {h.) 

48,  II.  1808.  Arrest,  Bail,  Trover,  Detinue,  172,  18b. 

49,  T.  1809.  Affidavits,  Changing  Venue,  609. 
51,  M.  1810.  Bail,  251,  263. 

E.  1811.  Notice  of  Trial,  755. 

54,  T.  1814.  Seal  Office  Hours,  54. 

56,  T.  1816.  Prisoners,  Supersedeas,  367. 

57,  M. Prisoners,  Supersedeas,  id.     King's  Bench  Pn- 

•     son,  52.  {d.) 
II.  1817.  King's  Bench  Prison,  Prisoners,  Rules,  52,  {d.) 

373,  4. 

58,  II. King's  Bench  Prison,  52,  {d.)  372. 

T.  1818.  Kin-^'s    Bench    Prison,    Prisoners,    Spirituous 

Liquors,  52,  {d.)  372. 


Xliv  TABLE  OF  RULES  AND  ORDERS. 

In  King's  Bench,  continued. 
of  George  III.,  continued. 

59,  M.  1818.  Bail  Bond,  Sheriff,  Attachment,  Affidavit   of 

Merits,  302,  316. 
H.  1819.  King's  Bench  Prison,  Prisoners,  52,  {d.)  372. 

Order  for  Particulars,  Pleading  issuably,  597. 

Judge's  Orders,  Time  for  Pleading,  &c.     Par- 

ticulars, 471,  598. 
T.    Bail,  Service  of  Notice  of  justifying,  262. 

1,  M.1820.  Ejectment,  Consent  Rule,  1203,  1226,  1231. 

2,  E.  1821.  Ejectment,  Appearance,  1208,  1219,  1220,  21. 

Rule  to  set  aside  Award,  845. 

M.    Attendance  at  Judge's  Chambers,  509. 

King's  Bench  Prison,  Marshal,  52. 

2  &  3,  H.  1822.  Bail,  Notices  of  Justification,  Costs,  271. 

Indorsement  on  Process,  159. 

Signing  Judgment  on  Cognovit,  561. 

Executions,  999. 

Rules  of  King's  Bench  Prison,  Fees,  52, 374. 

3,  E. Insolvent  Debtors,  Prisoners,  Supersedeas,  371. 

3  &  4  H.  1823.  Commissioners  for  taking  Affidavits,  491. 

4,  E.  The  like,  491,  2.  {I.) 

5,  T.  1824.  Summoning  special  Juries,  Notice,  793. 

New  Trial,  Affidavit,  914. 

6,  M,  1825.  Resealing  Distringas,  and  Record  of  Nisi  Prius, 

776,  781,  2;  918,  (a.) 

7,  T.  1826.  Expenses  of  View,  797. 

M.  King's  Bench  Prison,  52.  {d.) 

7  &  8,  H.  1827.  Quo  Warranto,  Pleadings,  657. 

King's  Bench  Prison,  52.  [d.) 

8,  E. Mesne  Process,  Defendant's  Names,  148,  9. 


In  Common  Pleas ; 
of  Henry  VI. 

35,  T.  1457,  §  1.  Prothonotaries,  47. 

4.  Warrants  of  Attorney,  96.  (6.) 

5.  Prothonotaries'  Fees,  47,  88.  {c.) 

6.  Custos  Brevium's  Fees,  53,  (e.)  88.  (c.) 

7.  Clerk  of  Treasury's  Fees,  52,  {h.)  88.  {c.) 

8.  Filacer's  Fees,  50,  {a.)  88.  [c.) 
Elizabeth. 

6  &  7  M.  1564,  §  1,  2.  Fees  of  Attorneys  and  Officers,  88.  (c.) 

3.  Rolls,  729,  732. 

4.  Attorneys,  74.  (a.) 

5.  Error,  1149,  {c.) 
9,  E.  1567.  Attorneys,  88.  {h.) 

15,  M.  1573,  §  1.  Attorneys,  Attendance,  86. 

4.  Sheriff's  Deputies,  58.  {h.) 

5,  6.  Fees  of  Attorneys  and  Officers,  88.  (c.) 
8.  Attorneys,  74.  (a.) 


TABLE  OF  RULES  AND  ORDERS.  xlv 

In  Common  Pleas,  continued. 
of  Elizabeth,  continued. 

15,  M.  1573,  §  10.  Attorneys,  GO.  {e.) 

11,  12, 13.  Fees  of  attorneys  and  Officers,  88.  {c.) 
15.  Venue,  601.  (A.) 
15  &  16,  ]M. Filacers,  Process,  50. 

23,  E.  1581.  Error,  1149. 

24,  T.  1582,  §  1.  Bail,  239. 

4.  Outlawry,  139. 

6.  Attorneys,  74.  [a.) 

8.  Attorney,  Bail,  247. 

9.  Attorneys,  60,  {e.)  82.  (l.) 

James  I. 

2   T.  1604.  Informations  on  Penal  Statutes,   Composition, 

557. 

11,  E.  1613.  Entering  Judgments,  569. 

12,  E.  1614,  §  1.  Carrying  Rolls  into  Country,  731.  (c.) 

2.  Rolls,  Entering  Clerks,  47,  728,  9,  30,  31. 

3.  Execution,  999. 

4.  Attorneys,  86,  (^'.) 

M.  Informations  on  Penal  Statutes,  Composition, 

557,  8. 
14,  M.  1616,  reg.  1,  2.  Filacers,  Process,  Appearance,  Bail, 

Scire  Facias,  50,  239. 

H.  reg.  2,  §  1.  Attorneys'  Fees,  60.  {e.) 

2.  Number  of  Attorneys,  88.  (c.) 
4.  Bail,  Process,  238. 
17,  M.  1619.  Fees,  88.  {c.) 

20,  II.  1622.  Informations  on  Penal  Statutes,  Composition, 

557. 

Charles  I. 

2,  II.  1626,  §  1.  Trespass  quare  clausum  fregit,  104. 

2.  Outlawry,  Bail,  142.  {h.) 

3.  Same  titles,  136.  {a.) 

4.  Reversal  of  Outlawry,  143.  (e.) 

5.  Outlawry,  Supersedeas,  135.  (l.) 
8,  H.  1632,  §  3.  Attorneys,  60.  (/.) 

8.  Rolls,  Entering  Clerks,  47,  728,  9,  30. 

COMMONWEALTn. 

T.  1649.  Filacers,  Original  Writs,  49,  54,  104.  (g.) 
M.  reg.  1.  Protlionotaries  Rolls,  Clerk  of  the  Es- 
soins, 47,  728,  &c. 
2.  Bail,  Habeas  Corpus,  407,  8. 
M.    1654,    §   1.  Under-sheriffs,  &c.  Sheriff's  Deputies,  58, 
84.  Attorneys,  60,  74,  82,  86.  Bail, 
247.    Ejectment,  1201. 

2.  Sheriff's  Bailiffs,  58.  Warrant  to  Arrest, 

217. 

3.  Jury  of  Attorneys,  88. 

4.  Attorneys,  60. 

5.  Rolls,  Entering  Clerks,  47,  730. 


Xlvi  TABLE  OF  RULES  AND  ORDERS. 

In  Common  Picas,  continued. 

of  Commonwealth,  continued. 

M.  1054,  §  G.  Exemplifications,  47,  52.  Scaling  Writs,  54, 

5.  [e.)  Executions,  999. 

7.  Bringing  in  Rolls,  47,  728,  730,  31,  2. 

8.  Changing  Venue,  468,  601,  603,  GOB. 

9.  Outlawry,  133,  135.  Bail,  227. 

10.  Habeas  Corpus,  Prisoners,  Bail,  349,  350, 

358,  365,  407. 

11.  Bail,  Habeas  Corpus,  253,  404,  408,  9.  Pro- 

cedendo, 410. 

12.  Arrest,  Bail,  Render,  172,  193,  238,  239, 

284,  542.  Attorneys,  320.  Habeas  Corpus, 
407,  8.  9.  Venue,  413,  606. 

13.  Attorneys,  Undertaking  to  appear.  Attach- 
ment, 86,  94,  241.  Outlawry,  142.  Filacers, 

Appearance,  238.  Prisoners,  358. 

14.  Imparlances,  Declaration,  Nonpros,  422, 462. 

15.  Secondaries,  49.  {a.)  Rules  to  declare.  Non- 

pros, Prisoners,  354,  421.  Oyer,  588. 

16.  Declaration,  433. 

17.  Amendment,  707,  id.  (/.) 

20.  Demurrers,  Amendment,  694,  696. 

21.  Notice  of  Inquiry,  576.  Entering  Issue,  727, 

734,  764,  777.  Notice  of  Trial  and  Coun- 
termand, 755,  6.  Costs,  757.  Trial  by  pro- 
viso, &c.  761.  Record  of  Nisi  Prius, 
777,  [c.)  817.  (c?.) 

23.  Special  Verdicts,  897. 

24.  Venire  de  novo,  894,  922. 

25.  Habeas  Corpus,  Costs,  414. 

26.  Attorneys,  Oath,  70. 
Charles  II. 

13  &  14,  H.  1661.  Bail,  Habeas  Corpus,  404,  {g.)  408,  9, 10. 

14  &  15,  H.  1662.  reg.  1.  Sheriff's  Deputies,  58.  Blank  War- 

rants, 217. 

2.  Attorneys,   74,   86.    Warrants  of 

Attorney,  96,  {h.)  132,  (?.)  569. 

3.  Prisoners,  354,  {k.)  358,  9  ;  363. 

4.  Warrants  of  Attorney,  548. 

15  &  16,  H.  1663.  Sheriff's   Deputies,   Outlawry,   Bail,   58, 

135.  {I.) 
17,  M.  1665.  Outlawry,  Costs,  Sheriff's  Bail,  134,  (/.)  135, 

(/.)  142,  Ui.)  143.  (/.) 
21,  T.  1669.  reg.  1.  Attorneys,  Entries,  729.  (5.) 

2.  Rolls,  47,  729.  '(h.)  Attorneys,  Bill,  323. 

Imparlance,  462. 
24,  E.  1672.  reg.  1.  Supersedeas,  Outlawry,  50,  134.  (/.) 
2.  Filacer's  Appearance,  50,  238. 

27,  E.  1675.  Demurrer  Books,  739,  (e.  k.)  1176. 

28,  T.  1676.  Error,  1155,  1161. 


TABLE  OF  RULES  AND  ORDERS.  xlvii 

In  Common  Pleas,  continued. 
of  Charles  II.  continued. 

28,  M.  1G7G.  Error,  1145,  (/.)  1155,  1159,  llGl. 

29,  T.  1G77.  reg.  1.  Attorneys,  Gl.  (6.) 

2.  Entries  on  Kolls,   730.  (/.)   Record  of 

Nisi  Prius,  77G. 

3.  Attorneys,  Writ  of  Privile<re,  320.  {<).) 

4.  Clerk  of  the  Treasury,  52.  Record  oi  .Nisi 

Prius,  776.  (/.) 

5.  Sifj^ning  and   entering   Judgments,   52, 
5G7,  930,  (J.)  938.  (r/.)  Bringing  in  Rolls, 

47,  731,  938.  Posteas,  &c.  901.  {c.) 

30,  M.1G78.  Original  Writs,  104. 

32,  T.  1G80.  Ejectment,  1218. 

33,  T.  1G81.  Outlawry,  Costs,  Declaration,  143,  423. 

34,  E.  1682.  reg.  1.  Posteas,  Qui  tam  Actions,  901. 

3.  Prothonotaries,    Clerk   of   the   Essoins, 
Rolls,  47,  729,  30;  732  (e.) 
36,  M.  1684.  Attorneys,  60,  61. 
James  II. 

1,  E.  1685.  reg.  2.  Record  of  Nisi  Prius,  Ne  Recipiatur,  817. 

2,  E.  1686.  Posteas,  901. 

T. Outlawry,  Bail,  Costs,  134,  (/.)  135,  {l)  143. 

2  &  3,  II. Record  of  Nisi  Prius,  51,  2 ;  96,  776.  Pluries. 

Capias,  51,  2  ;  132.  Warrants  of  Attorney, 
96,  132,  569,  776. 
William  &  Mary  : 

1,  T.  1689.  reg.  1.  Outlawry,  Costs,  144. 

2.  Filacers,  Bail,  50,  251. 

2,  T.  1690.  reg.  1.  Filacers,  Rule  to  bring  in  Body,  50,  310. 

2.  Filing  Affidavits,  497. 

5.  10  Mar.  1692.  Bail  by  Commissioners,  251,  258. 
E.  1693.  reg.  1.  Enteringlssues,  733.  Record  of  Nisi  Prius, 

777. 
5.  E.  1693.  reg.  2.  Bringing  in  Rolls,  47,  728,  732.  Docket- 
ing Judgments,  51,  940.  {h.) 

3.  Prisoners,  343,  4,  5 ;  346,  368. 
William  III. 

9  T.  1G97.  Attorneys,  Writ  of  Privilege,  Sealing  Writs,  54. 

320. 
13  E.  1701.  Certiorari,  Isle  of  Ely,  398.  {m.) 
Anne  : 

4  M.  1705.  Attorneys  61. 

9  II.  1710.  reg.  1.  Trials  at  Bar,  Notice,  750. 

2.  Declaration,  466.  {d.) 

3.  The  like,  422,  458. 

4.  Bail  Bond,  299.  (a.) 
George  I. 

2.  M.  1713.  Clerk  of  the  Essoins,  Bringing  in  Rolls,  47,  728, 

732.  (h.  c.)  Docketing  Judgments,  51. 
T.  1716.  Notice  of  Trial,  754. 

3,  M. Countermand  of  Notice  of  Trial,  757,  id.  (/.) 


jjjyj--  TABLE  OF  RULES  AND  ORDERS. 

In  Common  Pleas,  continued. 
of  George  I.  continued. 

6,  H.  1719,  reg.  1.  Notice  of  Inquiry,  578. 

2.  Attorney's  Undertaking,  Bail  by  Com- 
missioners, 241,  252. 
8,  H.  1721.  Rule  to  Return  Writ,  307. 
E.  1722.  Prisoners,  354,  5 ;  361,  2,  368. 

10,  T.  1724.  Notice  of  Inquiry,  Demurrer,  578. 

11,  H,  Entering  Issue,  734. 

12,  M.  1725.  Bail,  Outlawry,  141. 

T.  1726.  Special  Arguments,  505,  739. 

13,  M.  Bail  by  Commissioners,  252. 

E.    &  T.  1727.  Prisoners,  53.  (/.) 

George  II. 

1.  M.  Declaration,  452. 

8,  M.  1729,  reg.  1.  Trials  at  Bar,  750. 

2.  Declaration  da  bene  esse,  453,  (<?.)  456, 

466. 

19  Jan.       Prisoners,  53,  372. 

H.  The  like,  id. 

E.  1730.  Declaration,  457,  466,  473. 

3   &  4,   T.  Bail,  256. 

5,  M.  1731.  Warrants  of  Attorney,  Judgment  Paper,  51,  96, 

569. 
6,M.  1732,  reg.  1.  Bail  by  Commissioners,  252. 

2.  Exception  to  Bail,  255. 

3.  Demurrer  Books,  739,  1176. 

4.  Signing  Judgments,  930. 

5.  Attorneys,  Bail,  247. 

6.  Bail  in  Error,  1157. 

7.  Sheriff's  Officer,  Bail,  247. 
8.  H.  1734,  reg.  1.  Prisoners,  359. 

2.  Arrest,  Prisoners,  177,  367. 
10,  E.  1737.  Service  of  Notices,  &c..  261,  499,  500. 

10  &  11,  T.  Entering  Writ  and  Record,  818. 

•       11,  H.  1738,  reg.  1.  Filing  Affidavits,  497. 

2.  Attachment  of  Privilege,  320. 

3.  Attorney,  Forejudger,  323. 
13,  T.  1739,  reg.  1.  Costs  of  Inquiry,  580, 

2.  Posteas,  Inquisitions,  52,  569,  901. 
E.  1740,  reg.  1.  Affidavits,  Commissioners,  179,  242, 494. 
2.  Term's  Notice,  577,  756. 

14  H.   Entering  Causes,  818. 

14  &  15,  T.  1741.  Warrants  of  Attorney,  549. 

16,  M.  1742.  Changing  Venue,  608. 

17,  H.  1743.  Summons  and  Order,  509.  {n.) 
George  III. 

7.  H.  1767.  Rule  to  Return  Writ,  and  bring  in  Body,  307, 

310. 

8,  T.  1768.  Time  for  Pleading,  453,  456,  466. 

18,  M.  1777.  Bail,  266. 

21,  E.  Bail,  Outlawry,  Supersedeas,  134. 


TABLE  OF  RULES  AND  ORDERS.  xUx 

In  Common  Pleas,  continued. 
of  George  III.,  continued. 

22,  II.  1782.  Bail,  Warrant  on  Testatum  Capias,  Venue,  154, 

250,  294. 

23.  II.  1783.  Filacer's  OfBce,  40.  {h.)    AVrit  of  Inquiry,  580. 
E.   Attendance  on  Summons.  470. 

30,  T.  1790.  Bail  Bond,  249,  299. 

31,  T.  1791.  Attorneys,  m,  G9. 

32,  II.  1792.  Notice  of  Trial,  Entering  Causes,  755,  817. 

35,  II.  1795.  Prisoners,    366.     Declaration,  453.     Time  for 

Pleading,  466.    Issue  Money,  727,  739. 

36,  E.  1796.  Bail  Recognizance,  251. 
37^  M.  Bail,  266. 

H.  1797.  The  like,  268. 

T.   Attorneys,  70. 

38.  T.  1798.  Distringas,  Issues,  Rule  to  bring  in  Body,  At- 
tachment, 111,  312. 

42,  H.  1802.  Days  for  Arguments,  505.  {h.) 

43,  M.  Warrant  of  Attorney,  Dcfeazance,  545,  555. 

46,  M.  1805.  Insolvent  debtors,  378.  (/.) 

47,  M.  1806.  The  like,  id.     Days  for  Arguments,  378,  505, 

739. 

48,  H.  1808,  reg.  1.  Arrest,  Bail,  Trover,  Detinue,  172, 186. 

2.  Special  Ai-guments,  Exceptions,  505,  (/.) 

739,  1176.  {e.) 

E.  Ejectment,  Rule  for  Judgment,  1221. 

49^  M.  Paper  Books,  505,  739. 

H.  1809.  Original  Writ,  Summons,  Distringas,  Notice, 

113. 

E.  Notice  of  Bail,  Declaration  de  bene  esse,  253, 

454. 

51,  M.  1810.  Bail,   Recognizance,  251.     Bail,  Justification, 

263. 

52,  T.  1812.  Trial,  Special  Jury,  817. 
63,  T.  1813.  New  Trials,  913. 

54,  T.  1814.  Seal  Office  Hours,  54. 

57,  E.  1817.  Supersedeas,  Prisoners,  369,  70. 

59,  T.  1819.  Bail,  Service  of  Notice  of  justifying,  261. 

Warrant  of  Attorney,  Affidavit,  554. 

60,  M.  Bail,  Service  of  Notice  of  justifying,  261. 

60  &  1    Geo.  IV.  11. 1820.  Amendment  of  Fines  and  Recove- 
ries, &c.  499,  706. 
George  IV. 

1   &   2    II.  1821.  Ejectment,  Consent  Rule,  1203,  1226, 

1231,  id.  (/.) 

2,  E.  Ejectment,  Appearance,  1208,  1219,  1221,  2. 

T.  Particulars  of  Demand,  596. 

3,  M.  1822.  Insolvent  Debtors,  Prisoners,  Supersedeas,  371. 

6  &  7  II.  1826.  Discharge  of  Prisoners  superscdeable,  368. 

7,  M.   Bail,  Notice  of  Justification,  259,  265. 

7  &  8  II.  1827.  Affidavit,  Fine,  or  Recovery,  494.  (a.) 

8,  E.  1827.  The  like,  494. 
Vol.  I. — D 


1  TABLE  OF  RULES  AND  ORDERS. 

In  Common  Picas,  continued. 
of  George  IV.  continued. 

8,  E.  1827.  Fleet  Prison,  53.  (/.) 
8  &  9  H.  1828.  Demurrer  Books. 


In  Exchequer; 

34  &  35,  M.  1592.  Debt  to  King,  Assignment,  1067. 
James  I. 

19,  H.  1622.  Subpoena  ad  respondendum,  156.  (Jc.) 
Charles  I. 

15,  H.  1639,  §  1.  Debt  to  King,  Assignment,  1067. 

2.  Extent  in  Aid,  1062. 

3.  Same  Title,  1058.  (m.) 

4.  Debt  to  King,  Assignment,  1067. 

5.  Extent  in  Aid,  1062. 

6.  Same  title,  id. 

7.  Scire  facias,  1091. 

8.  Extent  in  Aid,  Bonds  to  Farmers,  &c.  1062. 
Charles  II. 

36,  M.  1684.  Subpoena  ad  respondendum,  156.  [h.) 
James  II. 

E.  2,  to  E.  3,  1685,  6.  Rejoining  and  joining  in  Demurrer, 

1079.  Notice  of  Trial,  1080.  Rule 
for  Judgment,  1081. 
William  &  Mary  : 

3,  M.  1691.  Extents  in  Aid,  1062. 
5,  E.  1693.  Proceedings  against  Prisoners,  343,  4,  5,  6. 
Anne: 

11,  E.  1712.  Extents,  Property  in  Trust,  1048. 
George  II. 

26  &  27,  T.  1753,  §  1.  Special  Bail,  Exception,  Justification, 

257. 

2.  Allowance  of  Writ  of  Error,  Execu- 

tion,  1144,   1146.    Bail  in  Error, 

Exception,  Justification,  1156,  (5.) 

1157,  (a.)  1157,  8. 

3.  Prisoners,  Detainer,  358. 

4.  Notice  of  Trial  and  Inquiry,  Demurrer, 

578,  696,  754. 

5.  Term's  Notice  of  Trial,  and  Inquiry, 

577,  756. 

6.  Distringas,   Issues,   155.      Time   for 

Pleading,  467. 

7.  Ejectment,  Appearance,  1220,  21. 

8.  Imparlance,  Time  for  Pleading,  468. 

{h.) 

9.  Declaration,  454.  [d.)  Time  for  Plead- 

ing, 467. 

10.  Declaration  de   bene   esse.  Time  for 

Pleading,  454.  (/.) 


TABLE  OF  RULES  AND  ORDERS.  U 

In  Exchequer,  continued. 
of  George  II.  continued. 

26  &  27,  T.  1753,  §  11.  Proceedings  against  Prisoners,  Super- 

Bodeas,  354,  356,  362,  371. 
33,  E.  17G0.  Bail,  Justification,  263.  (</.) 

Bail  in  Error,  Justification,  1156. 

George  III. 

5,  M.  1764.  Bringing  Money  into  Court,  610. 

Declaration,  454.   id.  /.)  Time   for  Pleading, 

467,  8. 
16,  II.  1776.  Declaration,  Time  for  Pleading,  468. 

Rules  to  Reply,  &c.  676. 

. Notice  of  Trial,  and  Countermand,  757. 

26,  T.  1786.  Declaration,   454.    (d.  /.)  Time  for  Pleading, 

467,  8. 
29,  T.  1789.  Entering   Causes,  in  London  and  Middlesex, 

'  817. 

32,  H.'1792.  Record  of  Nisi  Prius,  818. 

38,  H.'*1798.  Liability  of  Bail,  281. 

39,  II.  1799.  Ejectments,  Appearance,  1220,  21. 

Notices  of  Trial,  and  Inquiry,  577,  754. 

40,  H.  1800.  Affidavits  of  illiterate  Persons,  495. 

43,  M.  1802.  AYarrant  of  Attorney,  Defeasance,  545,  554. 
45,  E.  1805.  Precipes  for  Subpoenas,  Attachments,  157. 

48,  H.  1808.  Bail,  Trover,  Detinue,  172,  186. 

49,  E.  1809.  Sittings  in  London  and  Middlesex,  753. 
51,  M.  1810.  Bail,  Justification,  251,  263. 

53,  M.  1812.  Declaration  do  bene  esse.  Time  for  Pleading, 

454,  5. 
56,  E.  1816.  Justifying  Bail,  263.  (6.) 

Notices  of  Trial,  755. 

59,  T.  1819.  Bail,  Service  of  Notice  of  Justifying,  261. 

60  &  1.  Geo.  IV.  H.  1830.  Declaration,    Pleading    Stamps, 

254. 
Declaration,  Notice,   Judgment, 

455. 

George  IV. 

1,  T.  1820.  Affidavit  by  illiterate  Persons,  or  two  or  more 

Deponents,  495. 
1  &  2,  II.  1821.  Filing  Affidavits,  497. 

Shcriffii,  Return  of  AVrits,  &c.  1057. 

2,  E. Reading  Office  Copies  of  Affidavits,  497,(/.)  1203, 

1231.  (/.) 

Ejectment,  Appearance,  1208,  1219,  1220,  21. 

Ejectment,  Consent  Rule,  1226. 

3,  T.  1822.  Extent  in  Aid,  Affidavit  of  Danger,  1063. 

M. Insolvent  Debtors,  Prisoners,  Supersedeas,  371. 

5,  E.  1824.  Judgment  as  in  case  of  Nonsuit,  765. 


lii  TABLE  OF  RULES  AND  ORDERS. 

NOTICES, 

In  King's  Bench ; 
of  George  II. 

2,  H.  1728.  Ac  etiam,  150.  (5.) 

Signing  Judgment,  474. 

G,  M.  1732.  Eiile  to  return  Writ,  and  bring  in  Body,  307, 

310. 
9,  M.  1735.  Filing  Affidavits,  497,  501. 
11  &  12,  T.  1738.  Kolls,  728,  734. 
17,  M.  1743.  Entry  and  Trial  of  Causes,  816,  (e.)  818. 
3d  April,  1747.  Sealing  blank  Writs,  54. 
In  Common  Pleas ; 
of  George  I. 

8,  H.  1721.  Record  of  Nisi  Prius,  Ne  recipiatur,  817. 
Ctt^^otipt^  TT 

1,  M.  1727.  Demand  of  Declaration,  &c.  459,  475,  588. 

2,  M.  1728.  Enlarging  Rules,  Irregularity,  503,  513. 

Attorneys,  Admission,  69.  (c.) 

7,  H.  1733.  Notices  to  appear,  167. 

8,  H.  1734.  Bail,  251. 

13,  T.  1739.  Notice  of  Bill  against  Attorney,  323.  (A.) 
George  III. 

2,  E.  1762.  Record  of  Nisi  Prius,  Trial,  817. 
George  IV. 

3,  M.  1822.  Attendance  at  Judge's  Chambers,  510. 
In  Exchequer; 

of  George  III. 

54,  M.  1813.  Sittings  in  London  and  Middlesex,  753. 

28th  April,  1817.  Sittings  in  outer  Court,  id.  {d.) 
George  IV. 

3,  M.  1822.  Attendance  at  Judge's  Chambers,  509,  10. 


CHRONOLOGICAL  TABLE  OF 

THE  PRINCIPAL  REPORTS  OF  PRKTED  CASES, 


REFERRED  TO  IN  THE  FOLLOWING  WORK. 


IN  THE  KING'S  BENCH,  &c. 


Modern  Reports,  from  the  Restoration  of  Car.  II.  to  the  end  of  Geo.  I. 

0.  Bridgman,  from  M.  12  to  M.  19  Car.  II. 

Shower,  from  E.  30  Car.  II.  to  M.  7  W.  III. 

Skinner,  from  M.  33  Car.  II.  to  M.  9  W.  III. 

Comberbach,  from  M.  1  Jac.  II.  to  T.  10  W.  III. 

Carthew,  from  3  Jac.  II.  to  12  W.  III. 

Salkeld,  from  1  W.  &  M.  to  10  Ann. 

Cases  tempore  Holt,  from  E.  1  W.  &  M.  to  H.  8  Ann. 

Lord  Raymond,  from  E.  6  W.  &  M.  to  T.  5  &  6  Geo.  II. 

i<'ortescue  temj').  W.  III.  and  Ann. 

Comyns,  from  H.  7  W.  III.  to  E.  13  Geo.  II. 

Gilbert,  K.  B.  12  &  13  Ann. 

♦Strange,  from  T.  2  Geo.  I.  to  T.  20  &  21  Geo.  II. 

Barnardiston,  K.  B.  from  T.  12  Geo.  I.  to  T.  7  Geo.  II. 

Fitz-Gibbon,  from  M.  1  to  T.  5  Geo.  II. 

Kelynge,  from  H.  5  to  M.  8  Geo.  II. 

Cases  tempore  Ilardwicke,  from  M.  7  to  E.  11  Geo.  II. 

Andrews,  11,  12  Geo.  II. 

*1  Wilson,  from  II.  16  to  H.  20  Geo.  II. 

*Sayer,  from  M.  25  to  T.  29  &  30  Geo.  II. 

*Lord  Kcnvon,  from  E.  26  to  T.  32  Geo.  II. 

*Sir  Wm.  Blackstonc,  from  M.  20  Geo.  II.  to  T.  10  Geo.  III. 

*Burrow,  from  M.  30  Geo.  II.  to  E.  12  Geo.  III. 

Lofft,  from  E.  12  to  M.  14  Geo.  III. 

*Cowper,  from  H.  14  to  T.  18  Geo.  III. 

N.  B.  All  the  practical  cases  in  Strange  8  and  other  reports,  having  an 
asterisk  prefixed  to  them,  being  nearly  one  hundred  volumes  in  the  whole, 
and  most  of  those  in  the  other  reports,  particularly  in  Salkeld  and  Lord 
Raymond,  are  referred  to  in  the  following  work. 


liv  TABLE  OF  REPORTS  OF  PRINTED  CASES. 

*Douglas,  from  M.  to  19  to  T.  21  Geo.  III. 

*Durnford  &  East,  from  M.  26  to  T.  40  Geo.  III. 

*East,  from  M.  41  to  M.  53  Geo.  III. 

*Smitli,  from  M.  44  to  T.  46  Geo.  III. 

*Maule  &  Selwyn,  from  H.  53  to  H.  57  Geo.  III. 

*Barnewall  &  Alderson,  from  M.  58  Geo.  III.  to  T.  3  Geo.  IV. 

* Cresswell,  from  M.  3  to  M.  8  Geo.  IV. 

*Cliitty,  Vol.  I.  from  H.  59  to  M.  60  Geo.  III. 

* Vol.  II.  from  M.  10  to  T.  37  Geo.  III.  and  from  T.  52  Geo.  III. 

to  T.,  Geo.  IV. 
*Dowling  &  Ryland,  from  H.  2  &  3  to  M.  7  Geo.  IV. 
♦Manning  &  Ryland,  T.  &  M.  8  Geo.  IV. 

IN  THE  COMMON  PLEAS. 

Cases  of  Practice,  C.  P.  from  E.  5  Ann.  to  M.  13  Geo.  II. 
Practical  Register,  C.  P.  temp.  Ann.  Geo.  I.  and  Geo.  II. 
Barnes,  from  M.  5,  to  end  of  Geo.  II. 
*Willes,  from  E.  10,  to  T.  31  &  32  Geo.  II. 
*2  &  3  Wilson,  from  H.  26  Geo.  II.  to  E.  14  Geo.  III. 
*Sir  Wm.  Blackstone,  from  M.  11  to  M.  20  Geo.  III. 
*Henry  Blackstone,  from  E.  28  to  H.  36  Geo.  III. 
*Bosanquet  &  Puller,  from  E.  37  to  H.  44  Geo.  III. 

*New  Reports  of,  from  E.  44  to  T.  47  Geo.  III. 
*Taunton,  from  M.  48  to  H.  59  Geo.  III. 
♦Marshall,  from  M.  54  to  M.  57  Geo.  III. 
*J.  B.  Moore,  from  H.  57  Geo.  III.  to  E.  6  Geo.  IV. 
*Moore  &  Payne,  M.  8  &  H.  8  &  9  Geo.  IV. 
♦Broderip  &  Bingham,  from  E.  59  Geo.  III.  to  E.  3  Geo.  IV. 
♦Bingham,  from  T.  3  to  H.  8  &  9  Geo.  IV. 

IN  THE  EXCHEQUER. 

Bunbury,  from  1  Geo.  I.  to  14  Geo.  II. 
Parker,  from  E.  16  Geo.  II.  to  H.  7  Geo.  III. 
Anstruther,  from  E.  32  to  T.  37  Geo.  III. 
♦Forrest,  from  M.  to  T.  41  Geo.  III. 
♦Wightwick,  from  H.  50  to  M.  51  Geo.  III. 

♦Price,  from  E.  54  Geo.  III.  to  E.  3  Geo.  IV. ;  from  T.  3  to  H.  3  &  4  Geo. 

IV. ;  and  from  H.  4  &  5  to  T.  5  Geo.  IV. 
♦M'Cleland,  from  H.  4  &  5  to  M.  5  Geo.  IV. 
♦M'Cleland  &  Younge,  from  M.  5  to  M.  6  Geo.  IV. 
♦Younge  &  Jervis,  from  M.  7  to  M.  8  Geo.  IV. 

AT  NISI  PRIUS. 

♦Peake,  K.  B.  from  E.  30  to  M.  35  Geo.  III. 
♦Espinasse,  K.  B.  &  C.  P.  from  E.  33  to  M.  48  Geo.  III. 
♦Campbell,  K.  B.  &  C.  P.  &c.  from  M.  48  to  H.  56  Geo.  III. 
♦Starkie,  K.  B.  &  C.  P.  &c.  from  M.  54  Geo.  III.  to  M.  3  Geo.  IV. 
♦Holt,  C.  P.  &c.  from  T.  55  to  M.  58  Geo.  III. 
♦Gow,  C.  P.  &c.  from  M.  to  E.  59  Geo.  III. 

♦Carrington  &  Payne,  K.  B.  &  C.  P.  &c.  from  M.  4  to  M.  6  Geo.  IV. 
♦Ryan  &  Moody,  K.  B.  &  C.  P.  &c.  from  M.  4  to  T.  7  Geo.  IV. 
♦Moody  k  Malkin,  K.  B.  &  C.  P.  &c.  from  M.  7  to  M.  8  Geo.  IV. 


ALrilABETICAL 

TABLE  OF  ORIGINAL  CASES 

REFERRED  TO  IN  THE  FOLLOWING  WORK ; 


THE  TERMS  IN  WHICH  THEY  WERE  DECIDED,  THE  SUBJECT 
MATTER  OF  TIIEM,  AND  BY  WHOM  THEY  WERE  COMMUNI- 
CATED* 

Page. 

Abbis  v.  Barnard,  M.  35  Geo.  III. — Judgment.     Insolvent  Act. 

A.     934 

Adamson  v.  Gibson,  11.  27  Geo.  III. — Attachment.      Contempt. 

W.     170 

Amos  V.  Martin,  T.  36  Geo.  III. — Prisoners.    Detainer.     A.  -     365 

Anonymous,  E.  18  Geo.  III.— Oyer.     II.  ...     V2\) 

T.  18  Geo.  III.— Bail.     R. 247 

E.  19  Geo.  III. — Second  Arrest.     Nonsuit.     II.         -  -     175 

M.  20  Geo.  III.— Capias  utlagatum.     K.        -  -  -     136 

Same  Term. — Depositions.     H.  -  -  -  -     812 

I-I.  20  Geo.  III.— Habeas  Corpus  ad  testificandum.     R.  -     809 

Same  Term. — Staying  Proceedings  on  Bail  Bond.     II.  -     303 

M.  21  Geo.  III.— Bail.  Justification.     II.  k  II.  -  260,270 

Same  Term. — Notice  to  Plead.     Imparlance.     II.       -  -     467 

11.  21  Geo.  III.— Oyer.     II.  ....     586 

E.  21  Geo.  III.— Service  of  Process.     II.       -  -  -     151 

Same  Term. — Declaration  by  the  bye.     H.     -  -  425,473 

T.  21.  Geo.  III.— Taxing  bill  of  Costs.     11.  -  -  -     333 

*  N.B. — The  cases  marked  A.  Avere  communicated  by  Mr.  Ahhott^ 
those  marked  II.  by  Mr.  Justice  Ilolroi/d,  those  marked  M.  &  S.  by 
Messrs.  Maule  <|'  Schi'ijn^  those  marked  II.  by  the  late  INIr.  Serjeant 
Ruiuiington,  those  marked  T.  by  Mr.  W.  E.  Taunton^  and  those  marked 
W.  by  the  late  ]Mr.  George  Wihon  ;  and  all  the  cases  were  determined  in 
K.  B.  except  such  as  arc  particularly  mentioned  to  be  in  C.  P.  or  Ex- 
chequer. 


lyj  TABLE  OF  ORIGINAL  CASES. 

Anonymous,  Same  Term. — Bail.  Render.     H.        -  -  -  283 
T.  21  Geo.  III.— Sheriff's  Return.     H.           -  -  -  308 
Same  Term. — Staying  Proceedings  in  debt  under  40.s.     II.     -  516 
Same  Term. — Staying  Proceedings  in  debt  on  Judgment.  H.  532 
Same  Term. — Ejectment.     Error.     Recognizance.  H.  -  1252 
M.  22  Geo.  III. — Summons.     Stay  of  Proceedings.  H.  -  470 
Same  Term. — Prisoners.     II.               _             .  _  .  361 
II.  22  Geo.  III.— Outlawry.     Bail,  &c.     H.  -  -  -  142 
Same  Term. — Compounding  Penal  Action.     II.  -  -  556 
E.  22  Geo.  III.— Notice  of  Bail.     II.              ...  254 
Same  Term. — Imparlance.       Time   for   Pleading    in   Abate- 
ment.    H.  464,639 
Same  Term. — Bringing  Penalty  into  Court.     H.  -  -  541 
T.  22  Geo.  III.— Bail.     Perjury.     H.             -  -  -  277 
M.  23  Geo.  III.— Bail.     Attachment.     H.      -  -  -  222 
H.  23  Geo.  III.— Distringas.     W.      -            -  -  -  813 
E.  23  Geo.  III.— Suggestion.     Trial.     W.      -  -  -  728 
M.  24  Geo.  III.— Costs.     Attachment.     R.    -  -  480,991 
Same  Term. — Justifying  Bail.     Prisoner.     H.  -  -  259 
E.  24  Geo.  III.— Bail.     Render.     W.             -  -  -  256 
Same  Term. — Notice  to  Plead.     Imparlance.     H.  -  -  478 
Same  Term. — Interrogatories.     Costs.     H.     -  -  -  818 
T.  24  Geo.  III.— Bail.     Justification.     W.     -  -  -  278 
Same  Term. — Setting  aside  Judgment.     W.    -  -  -  568 
M.  25  Geo.  III.— Bail.     Justification.     W.     -  -  -  273 
H.  25  Geo.  III. — Bail  in  Error.     Justification.     H.  -  -  1155 
E.  25  Geo.  III.  Excheq.— Plea  in  Abatement.     H.  -  -  638 
T.  25  Geo.  III. — Computing  Principal  and  Interest,  &c.  H.  570 
Same  Term. — Changing  Venue.     H.  -             -  -  -  604 
Same  Term. — Error.     Supersedeas.     H.         -  -  -  1141 
H.  26  Geo.  III.— Notice  of  Render.     W.        -  -  -  2^8 
M.  28  Geo.  III.— Summons.     Stay  of  Proceedings.  W.  -  470 
Same  Term. — Arrest.    Bail.     H.        -             -  -  -  178 
M.  29  Geo.  III.— Special  Bail.     H.   -            -  -  -  245 
Same  Term. — Bringing  Money  into  Court.     H.  -  -  622 
H.  29  Geo.  III.— Bail.     Execution.     Error.     H.  -  -  1129 
T.  29  Geo.  III.— Irregularity.     W.    -             -  -  -  160 
H.  30  Geo.  III. — Judgment  as  in  case  of  Nonsuit.  II.  -  764 
T.  34  Geo.  III.— Taxing  Attorney's  Bill.     A.  -  -  332 
E.  35  Geo.  III.— Attachment.     A.     -            -  -  -  836 
T.  36  Geo.  III.— Affidavit  to  hold  to  Bail.     A.  -  -  181 
M.  37  Geo.  III.— Changing  Venue.     A.         -  -  -  606 
H.  37  Geo.  III.— Rule.     Irregularity.     Costs.     A.  -  -  503 
Same  Term.— Affidavit  of  Merits.     A.            -  -  -  568 
Same  Term. — Assessing  Damages.     A.            -  -  -  571 
Same  Term. — Changing  Venue.     A.    -            -  -  -  607 
T.  37  Geo.  III.— Costs.     Executors.     A.        -  -  -  979 
M.  38  Geo.  III.— Service  of  Ejectment.     A.  -  -  1217 
Same  Term.— Putting  off  Trial.     A.  -             -  -  -  771 
H.  38  Geo.  III.— Attachment.     Award.     A.  -  -  -  837 
E.  39  Geo.  III.— Service  of  Copy  of  Bill.     A.  -  -  322 
H.  40  Geo.  III.— Error.     Costs.     T.              -  -  -  1181 


TABLE  OF  ORIGINAL  CASES.  Ivij 

Anonymous,  E.  40  Goo.  III.— Bail.     Render.     T.              -  275, 281 

T.  40  Geo.  III.— AfTidavit  to  hold  to  Bail.     T.            -  -     184 

Same  Term.— Master's  Report.     T.    -             -             -  -     408 

M.  41  Geo.  III.— Ameiidiaent.     Misnomer.     T.          -  -     101 

Same  Term.— Affidavit  to  hold  to  Bail.     T.     -             -  -     183 

Same  Term. — Stayin<j;  Proceeding's,  pending  Error.     T.  -     /j-U 

Same  Term. — Costs  of  former  Action.     T.      -             -  -     539 

H.  41  Goo.  III.— Affidavit  to  hold  to  Bail.     T.           -  -     185 

Same  Term. — Affidavit.     Warrant  of  Attorney.     T.  -  -     554 

Same  Term.— Construction  of  Stat.  8  &  9  W.  III.  c.  11.  T.     584 

Same  Term. — Scire  Facias.     Execution.     Insolvent  Act.  T.  1112 

T.  41  Geo.  III.— Affidavit  to  hold  to  Bail.     T.            -  -     179 

Same  Term. — Staying  Proceedings  in  Ejectment.     T.  -  1236 

IVl  42  Geo.  III.— Bail.     Justification.     T.     -            -  -     246 

Same  Term.— The  like.     T.    -             -             -             -  247,267 

Same  Term.— Rule  to  Return  Writ.     T.          -             -  -     306 

Same  Term. — Imparlance.     Several  Defendants.     T.  -     467 

Same  Term. — Cognovit.     Stamp.     T.              -             -  -     560 

Same  Term. — Costs.     Executor.     T.  ...     079 

Same  Term. — Execution.     Evidence.     T.       -            -  -  1022 

Same  Term. — Return  of  non  est  inventus.     T.             -  -  1098 

T.  42  Geo.  III.— Affidavit  to  hold  to  Bail.     T.            -  -     186 

M.  43  Geo.  III.— Variance  from  Process.     T.             -  -     294 

Same  Term. — Variance.     Irregularity.     T.     -             -  -     450 

Same  Term.— Entering  Issue.     T.      -             -             -  -     733 

H.  43  Geo.  III.— Bill  of  Middlesex.     T.        -            -  -     150 

T.  43  Geo.  III.— Entering  Issue.     T.             -            -  -     733 

M.  44  Geo.  III.— Notice  of  Bail.     T.             -             -  -     253 

Same  Term. — Appearance.     Judgment.     T.   -             -  -     567 

E.  44  Geo.  III.— Demand  of  Plea.     T.           -             -  -     476 

E.  44  Geo.  III.— Execution.     Error.     T.       -             -  -  1147 

T.  44  Geo.  III. — Executor.    Discontinuance.     T.       -  -     979 

M.  45  Geo.  III.— Attachment.     Set  off.     T.  -             -  -     480 

E.  45  Geo.  III.— Signing  Judgment.     T.        -             -  -     930 

T.  45  Geo.  III.— Notice  of  Justification.    T.  -             -  -     260 

Same  Term.— Warrant  of  Attorney.     T.          -             -  -     552 

M.  46  Geo.  III.— Time  for  Pleading.     T.      -             -  -     465 

M.  48  Geo.  III. — Amendment.     Prisoners.     -             -  -     161 

H.  48  Geo.  III. — Nolle  prosequi.        -             -             -  -     571 

E.  55  Geo.  III.— Bail  in  Error.     Justification.             -  -     273 

11.  56  Geo.  III. — Ejectment  Execution.           -             -  -  1245 

E.  59  Geo.  III.  C.  P.— Notice  of  Bail.            -             -  -     254 

Aris  V.  Dickies,  II.  43  Geo.  III. — Executing  Inquiry.     T.  -     576 

y.  Taylor,  T.  35  Geo.  III.— Changing  Venue.     A.     -  -     605 

Ashby  ats.  — ,  T.  22  Geo.  III. — Tender.     Subsequent  Demand. 

Damages.  11.     622 

Ashton  V.  King  &  another,  M.  21  Geo.  HI.— Bail.    Render.  R.     282 

Atherton  v.  I'richard,  E.  43  Geo.  III. — Libcrum  (Tenementum.  T.     691 
Atkinson,  qui  tani,  v.  Harvey,  T.  28  Geo.  III. — Trial  in  adjoining 

County.  W.     723 

V.  Saunderson,  E.  25  Geo.  III. — Condition  of  Bail  Bond. 

W.     225 


lyiJi  TABLE  OF  ORIGINAL  CASES. 

Aysheford  v.  Charlotte,  H.  25  Geo.  III.— Witnesses.   Perjury.  W.     907 

B. 

Baker  v.  Baker,  executrix,  11.  35  Geo.  III. — Judgment  nunc  pro 

tunc.     A.  933,  9S9 
Balein  v.  Kent,  E.  20  Geo.  III.— Changing  Venue.     R.     -  -     P04 

Barnard  v.  Moss,  II.  28  Geo.  III.  C.  P.— Oyer.     R.  -  -    433 

Barnes,  assignee,  &c.  v.  Maton,  M.  23  Geo.  III. — Second  Arrest. 

Bankruptcy.     W.  &  H.     176 
Barry  v.  Alexander,  M.  25  Geo.  III. — Discovery  on  Motion.    W.  591,  2 

V.  Nugent,  in  Error.  M.  23  Geo.  III. — Bill  of  Exceptions. 

W,    865 
Bartlett  v.  Leighton,  Oxford  Spring  Ass.  1828. — Affidavit.  Plea  puis 

darrein  continuance.     851 
Bartrum  &  others  v.  Howell,  T.  31  Geo.  III. — Staying  Proceedings. 

Bail.     Costs.     W.     542 
Bates,  qui  tarn,  v.  Jenkinson,  E.  24  Geo.  III. — Evidence.    Return- 
ing Writ.     Continuances.     W.  162, 3 

V.  Maddison,  M.  23  Geo.  III. — Service  of  Process. 

H.  169 
Batt  V.  Deschamps,  T.  24  Geo.  III.  C.  P. — Executors  and  Adminis- 
trators. Costs.  H.  980 
Beardmore  v.  Boulton,  H.  30  Geo.  III.  Excheq. — Carriers.  Bring- 
ing money  into  Court.  H.  620 
Beck  V.  Lewin,  T.  56  Geo.  III. — Attorney.  Privilege.  Arrest.  80,  81,  83 
Bedford  &  Gatfield,  H.  26  Geo.  III.— Pleading  Double.     R.  -     658 

Bell  V.  Trevera,  M.  23  Geo.  III.— Writ  of  Inquiry  Notice.  W.  -  576 
Bellis  V.  Beale,  M.  38  Geo.  III. — Comnounding  Penal  Action.  A.  557 
Benfield  v.  Petrie,  M.  22  Geo.  III.— Ncav  Trial  Witnesses.  Per- 
jury. W.  907 
Bennett  v.  Hunt,  T.  15  Geo.  III.— New  Trial.  Writ  of  Error.  -  913 
Benson  v.  King,  H.  25  Geo.  III. — Process.    Continuance.   Waiver. 

W.  162,471 
Bingley  v.  Mattison,  E.  24  Geo.  III.— Notice  of  Trial.   New  Trial. 

W.  &  H.  917 
Birdv.Gunston,E.  24Geo.IIL — Notice  of  Action.  Justices.  W.  -  29 
Bishop  V.  Fry,  T.  2  Geo.  IV.  C.  P.— Error.  Supersedeas.  -  531, 1147 
Blakely  v,  Vincent,  T.  35  Geo.  III. — Warrant  of  Attorney.     Scire 

Facias.  A.  553, 1105 
Blakemore  v.  Ronea,  M.  36  Geo.  III. — Prisoners.  Lords'  Act.  A.  382 
Bligh  V.  Minister  &  others,  T.  28  Geo.  III. — Infant.    Common  Bail. 

W.       99 
Boddington  &  others  ats. ,  M.  20  Geo.  III. — Changing  Venue. 

Bond  V.  Gooch,  E.  23  Geo.  III. — Staying  Proceedings.     W. 
Bonner  v.  Charlton,  E.  43  Geo.  III. — Award.     Execution.     T. 
Bosanquet  v.  Simpson,  E.  42  George.  III. — Bail.     T. 
Bovara  v.  Besesti,  M.  24  Geo.  III. — Affidavit  to  hold  to  Bail. 
Bowser  v.  Price,  E.  20  Geo.  III. — Declaration.      Nonpros. 

junction. 
Boyce  v.  Rust,  T.  22  Geo.  III. — Bail  in  wrong  Court.     H. 


R. 

610 

_ 

538 

. 

997 

- 

235 

W. 

166 

In- 

R. 

460 

- 

250 

TABLE  OF  ORIGINAL  CASES.  lix 

Boyd  V.  Gordon,  II.  30  Geo.  III. — Imparlance.  II.  -  -  467 
Boyne  v.  Mills,  M.  25  Geo.  III. — Declaration.  Misnomer.  Vari- 
ance. W.  449 
Briggs,  ex  parte,  M.  22  Geo.  III. — Attornycs.  Clerks.  II.  -  08 
Broadbent  v.  "Woodhead,  17U4.— Costs.  Certificate.  II.  -  -  953 
Brown  v.  Newnliam  k  others,  E.  25  Geo.  III. — Consolidation.  Terms 

of.     W.  615 

V.  Phepoe,  II.  24  Geo.  III.— Affidavit  to  hold  to  Bail.    W.  100, 182 

Brunsdon  &  others,  assignees,  &c.  v.  Austin,  T.  34  Geo.  III. — 

Staying  Proceedings.  545 
Bryan  v.  "Williamson,  M.  38  Geo.  III.  C.  P. — Bringing  money  into 

Court.  625 

Brymer  &  Atkins,  H.  22  Geo.  III.  C.  P.— Costs.     Prohibition.     -  049 

Buckle  V.  Ilollis,  T.  4  Geo.  IV.— New  Trial.           -             -             -  917 

Burns  v.  Palmer,  M.  44  Geo.  III.— Award.     Costa.     T.    -             -  983 
Butcher  v.  Holland,  H.  25  Geo.  III. — Arrest.     Judgment.     Costs. 

11.  178 

Butler  V.  Bailey,  E.  25  Geo.  III.— Pledges.     W.   -             -             -  446 

V.  Grubb,  II.  23  Geo.  III.— Court  of  Conscience.     ^V.           -  831 

Butt  V.  Moore  &  another,  bail  of  lleadc,  M.  28  Geo.  III. — Arrest. 

Bail.     W.  k.  II.  173 

C. 

Caffin  &  another  v.  Idle,  M.  3  Geo.  IV. — Warrant  of  Attorney. 

Witness.     Attachment.  554 

Callaway  v.  Seymour,  E.  42  Geo.  III.— Sheriff 's  Bail.    Render.    T.  220 
Capper  v.  Stewart,  H.  28  Geo.  III. — Plea  puis  darrein  Continu- 
ance.    W.  847,  8;  851 
Carmichael  v.  Chandler,  T.  24  Geo.  III. — Bail  Bond.    Declaration. 

H.  299,  305,  453 
Carruthurs  v.  Parkin,  11.   41   Geo.   III. — Arrest.      Sequestration, 

Scotland.     T.  202 

Carstairs  v.  Stein,  T.  44  Geo.  III.— New  Trial.     M.  &  S.  -            -  913 
Carter  v.  Roberts,  M.  28  Geo.  III. — Staying  Proceedings,  pending 

Error.     ^V.  530 

V.  Yates,  T.  27  Geo.  III.— Concluding  Replication.     ^Y.     -  092 

Cawthorne  v.  Thompson  k  another,  T.  24  Geo.  III.— Costs.     W.  991 

Cazenove  ats. T.  44  Geo.  III.— Security  for  Costs.     T.         -  537 

Chalk  V.  Deacon  &  wife,  T.  2  Geo.  IV.  C.  P.— Feme-covert.     Ar- 
rest. 194,  1026 

Chippendale's  Case,  E.  19  Geo.  III. — Attorneys,  Privilege.     R.  82 

Chrishop  V.  Coulthard,  E.  25  Geo.  III.— The  like.     AV.     -             -  Id. 
Cleghoru  v.  Ireland,  E.  28  Geo.  III. — Staying  Proceedings,  pending 

Error.     W.  531 
Cleveland  v.  Dickenson  &  another,  bail  of  Tomkius,  E.  41  Geo. 

III.— Bail.  Bankrupt.  T.  290 
Cockson  V.  Drinkwatcr,  T.  23  Geo.  III. — Execution.  Several  Is- 
sues. W.  980 
Cohen  V.  Bell,  T.  44  Geo.  III.— Security  for  Costs.  T.  -  -  530 
Coleman  v.  City  of  London,  M.  21  Geo.  III.— Trial  at  Bar.  R.  -  749 
Colson  V.  Carhordy,  T.  22  Geo.  III.— Bail.    Justification.    W.  &  H.  271 


Ijj  TABLE  OF  ORIGINAL  CASES. 

Combrimc  v.  ,  T.  42  &  M.  43  Geo.  III.— Prisoners.     Scire 

Facias.     T.  366 

Constable  v.  Edwards,  E.  40  Geo.  III.— Service  of  Copy  of  Bill.    T.  322 

Cooke  V.  Stocks,  M.  36  Geo.  III.— Stamping  Deeds.     A.  -             -  48T 
Cookson  V.  Foster,  T.  23  Geo.  III.— Second  Arrest.     W.  -  176,  343,  357 

Cooper  V.  Rowe  &  another,  T.  51  Geo.  III.  Exclieq. — Execution.  -  995 

Corbyn  v.  Dawson,  E.  36  Geo.  III.  C.  P.— Putting  off  Trial.     A.  773 

Cowan  V.  Berry,  E.  38  Geo.  III. — Striking  out  Counts.     A.           -  617 

Cripps  &  Wiggin,  T.  28  Geo.  III. — Prisoners.     Supersedeas.     W.  370 

Crooke  v.  Curry,  1789.— Notice  of  Action.     H.     -             -             -  30 

Crookson  v.  Lord  Lonsdale,  H.  29  Ge3.  III. — Essoin.     H.             -  109 
Cunningham  v.  Chambers,  E.  45  Geo.   III. — Attachment.      Bail 

bond.     T.  297 
Curtis  V.  Taylor,  E.  35  Geo.  III. — Judge's  Order.   Attachment.   A.  511 
V.  Lord  Grandison,  M.  37  Geo.  III. — Presumption  of  Pay- 
ment.    Scire  Facias.     H.  18 
Cutler  V.  Powell,  H.  35  Geo.  III.— Special  Cases.     A.       -            -  504 


D. 

Dambon  v.  Jacob,  T.  27  Geo.  III. — Staying  Proceedings.     Mort- 
gage.    W.  1235 
Davey  v.  Hollingsworth  &  another,  T.  24  Geo.  III. — Execution. 

Amendment.  R.  999 
Davie  V.  Franklin,  H.  26  Geo.  III.— Assignment  of  Error.  W.  1169,1173 
Davies  &  Brown,  M.  27  Geo.  III. — Prisoners.     Supersedeas.     W.     367 

V.  Lewis,  T.  27  Geo.  III. — Hearsay  Evidence.     Venire  de 

novo.     W.     923 

— qui  tarn,  v.  Solomon,  T.  25  Geo.  III.' — Staying  Proceed- 

'  ings.  W.  &  H.  535 
Davy  V.  Hoskins,  M.  23  Geo.  III.  C.  P.— Notice  of  Action.  H.  -  31 
Daubeny  v.  Hogarth,  E.  27  Geo.  III. — Several  Breaches.  W.  -  584 
Dawson  v.  Shuter,  T.  26  Geo.  III.— Bail.  Surrender.  Costs.  W.  542 
Delatre  &  Mango,  M.  20  Geo.  III.— Time  for  Pleading.     R.  -     465 

Denman  v.  Golding,  M.  59  Geo.  III. — Service  of  Rule  for  Attach- 
ment.    838 
Doe  V.  Johnson  &  another,  H.  24  Geo.  III. — Notice  on  Process.  "VV.     167 

V.  Law,  H.  25  Geo.  III.— Staying  Proceedings.     W.  &  H.       -  1233 

ex  dem.    Angell  v.  Angell,  T.  36  Geo.  III.— Trial  at  Bar.   A.  747, 8 

Davie  v.  Haddon,  M.  25  Geo.  III.— New  Trial.     Costs. 

W.  915 
Robinson  v.  Roe,  T.  35  Geo.  III. —  Service  of  Eject- 
ment. A.  1215 
Douglas  V.  Child,  E.  33  Geo.  IIL  C.  P.— Signing  Demurrers.  R.  696 
Drew  V.  Jeffries,  H.  26  Geo.  III. — Arrest.  Bankrupt.  -  -  211 
Duncan  v.  Thomasin,  M.  38  Geo.  III. — AlBidavit  for  putting  off 

Trial.     A.     773 
Durant  v.  Serocold,  E.  24  Geo.  IIL — Variance.      Setting  aside 

Proceedings.     W.  &  H.     451 


TABLE  OF  ORIGINAL  CASES.  Ixi 


E. 


East  India  Company  v.  Lord  Maiden,  E.  32  Geo.  III. — Manda- 
mus. A.  814 
Edio  V.  Glover,  II.  27  Geo.  III.— Venue.  W.  -  -  -  G05 
Edmunds  v.  Cox,  E.  24  Geo.  III.— Arbitration.  Death.  11.  -  822 
Edwards  v.  Carter,  M.  3G  Geo.  III. — Prisoners.  Lords'  Act.  A.  381 
Elan  V.  Rees,  II.  24  Geo.  III.— Security  for  Costs.     W.     -  -  534 

Ethcrington  v. ,  M.  45  Geo.  III. — Affidavit  to  hold  to  Bail.  T.  182 

Eyre  v.  Bull,  E.  25  Geo.  III.— Liability  of  Sheriff,  •  ^V.    -  -  315 

F. 

Fairclaim  v.  Thrustout,  E.  24  Geo.  III. — Staying  Proceedings.  W.  1233 
Falkland's  (Lord)  Case,  E.  36  Geo.  III.— Peers.  Attachment.  A.  192 
Fennell  v.  Gardner,  E.  8  Geo.  IV.— Bail.  -  -  -  -  271 
Field  V.  Lodge,  E.  24  Geo.  III.— Bail.  W.  -  -  -  lOOU 
Fisher  v.  Coates,  E.  8  Geo.  IV. — Bankruptcy.  Costs.  Attach- 
ment. 211 
V.  Hancock,  H.  36  Geo.  III. — Judgment  as  in  case  of  Non- 
suit. A.  767 
Fitzgerald  v.  Smith,  T.  36  Geo.  III.— The  like.  A.  -  -  764 
Fitzpatrick  v.  Kelly,  M.  22  Geo.  III.— Arrest.  Franchise.  W.  -  217 
Fleetwood  v.  Cross,  11.  26  Geo.  III. — Affidavit  to  change  Venue. 

W.  609,10 
Flight  V.  Stanley,  M.  44  Geo.  III.— Distringas.  County  palatine.  T.  312 
Flint  V.  De  Loyant,  M.  42  Geo.  III. — Servant  of  Public  Minister. 

Arrest.     T.     191 
Foley  V.  Lord  Peterborough,  II.  25   Geo.  III. — Venue.      Crim. 

Con. 
Folkes  V.  Chad  &  others,  M.  22  Geo.  IIL— New  Trial.     W. 
Fonncreau  v.  Fonnereau. — Changing  Venue.     Suggestion. 
Ford  V.  Yates,  E.  22  Geo.  III.— New  Trial.     Perjury.     H. 
Forster  v.  Hyde,  M.  41  Geo.  III.— Sheriff's  Bail.     T. 
Fowler  &  Dyer,  M.  20  Geo.  III.— Demand  of  Oyer.     R.  - 
Franklin  v.  Holmes,  T.  21  Geo.  III. — Amendment.  Prohibition. 
French  v.  Moore,  M.  45  Geo.  III. — Outlawry.     Appearance. 
Fry  V.  Montgomery  &  others,  M.  26  Geo.  III. — Affidavit  to  hold  to 

Bail.     W.     188 

G. 

Gage  &  another  v.  Parsons,  M.  36  Geo.  III. — Amendment.     T.     -  365 

Gagnier  v.  Stonehouse,  M.  24  Geo.  III.— New  Trial.     Costs.     W.  915 

Garnans  v.  Ileskcth,  E.  22  Geo.  III.— Pleader.     Executor.     W.   -  980 

Gillct  V.  Mawman,  T.  47  Geo.  III.  C.  P.— Subpoena.          -             -  806 

V.  Ridley,  E.  20  Geo.  III.  C.  P.— Issuable  Plea.     R.           -  471 

Golding  V.  Vaughan,  E.  22  Geo.  III. — Action  by  or  against  Sur- 
viving Partners.     H.  6 
Good  V.  Wilkes,  11.  56  Geo.  III.— Arbitration.      -            -             -  827 
T.  57  Geo.  III.— Arrest.     Attachment    -            -  1030 


w. 

605 

- 

913 

_ 

606 

- 

907 

227 

,305 

- 

588 

XL 

697 

T. 

140 

j^^-j  TABLE  OF  ORIGIiSrAL  CASES. 

Goodtitlc  V.  Mayo,  II.  29  Geo.  III.— Pauper.     Ejectment.     H.     -       99 
Goodwin  v.  Montague,  E.  23  Geo.  III. — Rule  to  bring  in  body,  &c. 

W.  311,  316 
Goss  V.  Harrison,  T.  44  Geo.  III.— Bail  Bond.     T.  -  -     304 

Gosse  V.  Macauley  &  others,  T.  42  Geo.  III. — Judgment  as  In  case 

Nonsuit.     T.     762 
Grant  v.  Foley,  T.  23  Geo.  III.— Setting  aside  Annuity.     W.         -     52T 
Green  &  Robinson,  H.  23  Geo.  III. — Declaration.  Misnomer.    Vari- 
ance.    W.     449 

V.  Simmester,  H.  27  Geo.  III. — Imparlance,  Demurrer.     W.     464 

Groome  v.  Symonds,  H.  35  Geo.  III.— Taxing  Agent's  Bill.    A.    -     332 
Groves  v.  Durall,  H.  38  Geo.  III. — Changing  Venue.    Suggestion. 

A.     606 
Gwynne  v.  Toldervy,  one,  &c.  H.  54  Geo.  III. — Attorney.     Pri- 
vilege.      81 
H. 

Hague,  one,  &c.  v. ,  E.  45  Geo.  III. — Error.     T.  -  1145 

Hale  V.  Smallwood,  E.  35  Geo.  III.— Paper  Book.     A.      -  -     725 

Hall  V.  Warner,  T.  24  Geo.  III.— Costs.     Libel.     W.        -  -     962 

Hanson  ats. ,  T.  52  Geo.  III. — Notice  to  appear.     T.  -     167 

Harcourt  v.  Knapp,  H.  23  Geo.  III. — Bringing  money  into  Court. 

W.     541 
Harewood  v.  Matthews  &  another,  H.  56  Geo.  III. — Costs.     Nolle 

Prosequi.     981 
Harman  v.  Gilbert,  M.  36  Geo.  III.  C.  P. — Judgment  as  in  case  of 

Nonsuit.  A.  764 
Harrison  v.  Slater,  T.  44  Geo.  III.— Arbitration.  Costs.  T.  -  831 
Hartley  v.  Thomson,  E.  22  Geo.  III. — Judgment  as  in  case  of  Non- 
suit. W.  763 
Haviland  v.  Cole,  M.  24  Geo.  III. — Bringing  money  into  Court.  H.  627 
Haydon  v.  Federici,  E.  38  Geo.  III. — Affidavit  to  hold  to  Bail. 

Scotland.  Ireland.  A.  181 
Healey  v.  Medley,  M.  24  Geo.  III.— Bail.  Render.  W.  &  H.  283, 1128 
Hicks  V.  Strutt,  E.  27  Geo.  III.— Notice  of  Trial.  Remanet.  W.  758 
Hill  V.  Simpson,  bail  of  Jackson,  H.  26  Geo.  III. — Bankrupt.    Bail. 

Election.     W.     291 

V.  Stanton,  H.  55  Geo.  III.— Bail.     Recognizance.     248,  251,  278 

Hinckley  v.  Hutton,  H.  27  Geo.  III.— Bail  in  Error.     W.  -  1157 

Hoare  v.  Crozier,  E.  22  Geo.  III.— Damages.    W.  &  H.    -  -     896 

Hodgson  V.  Milles,  E.  26  Geo.  III. — Error.     Interlocutory  Judg- 
ment.    W.  1141 
HoUoway  v.  Whalley,  T.  41  Geo.  III. — Alias  Writ.     Irregularity. 

T.  147,  515 
Hooper  v.  Cobb,  T.  22  Geo.  III.— New  Trial.  Penal  Action.  H.  910 
Hoskins  V.  Ridgeway,  H.  23  Geo.  III.— Venue.     Libel.     W.         -     605 

Hough,  one,  &c.  ats. ,  T.  42  Geo.  III. — Service  of  Copy  of 

Bill.     T.     322 
Howston  V.  Howston,  T.  25  Geo.  III.— Writ  of  Error.     W.  -  1145 

Hubbard  v.  Horton,  H.  36  Geo.  III.— Demand  of  Costs.  A.  -  1243 
Hudson  V.  Needham,  T.  27  Geo.  III. — Changing  Venue.  W.  -  608 
Humphries  v.  Ditcher,  E.  21  Geo.  III.— Bail.     Render.     H.      286,  288 


TABLE  OF  ORIGIXAL  CASES.  Ixiii 

Hurt!  V.  Cock,  M.  36  Geo.  III.— Striking  out  Counts.  Costs.  A.  616 
Hussey  &  another  v.  Jordan,  T.  25  Geo.  III. — Attorney.    Court  of 

Conscience.     W.       80 
Hutton  V.  Bolton,  E.  22  Geo.  III. — Carriers.    Bringing  money  into 

Court.    R.  &  11.     620 
V.  Colboys,  E.  35  Geo.  III. — Pauper.     Staying  Proceed- 
ings.    A.       98 

I. 

Irwin,  qui  tarn,  v.  Sir  William  Manners,  E.  44  Geo.  III. — Staying 

Proceedings.     Bribery.     T.     .518 
Isaacs  V.  Windsor,  T.  24  Geo.  III.— Notice  of  Trial.     AV.  -     757 

J. 

Jacques  v.  Nixon,  E.  26  Geo.  III.— Affidavit  to  hold  to  Bail.  W.  189 
James  v.  Iloskins,  T.  25  Geo.  III. — Warrant  of  Attorney.  W.  -  547 
Jones  V.  Perry,  T.  21  Geo.  III.— Sheriff.     Indemnity.     H.  -  1018 

V.  Cox,  M.  36  Geo.  III. — Prisoner's  Allowance.     Lords'  Act. 

A.     380 

K. 

Kaye  v.  Patch,  T.  27  Geo.  III.— Pleading  Double.     W.    -             -  655 

Keble  v.  Markhara,  E.  20  Geo.  III.— Personating  Bail.     II.           -  275 

Kettle  V.  Woodfield,  T.  40  Geo.  III.— Staying  proceedings.     T.    -  304 

King  V.  Millet,  H.  22  Geo.  III.— Prisoners.  Scire  facias.  R.  -  366 
Kingsbury  v.   Vanbergh,  E.  22  Geo.   III. — Filing  or  delivering 

Avowry.    H.  672 

Kingsford  v.  Tracey,  II.  43  Geo.  III.— Bankrupt.     Execution    T.  1110 
Knight  V.  Ilennell,  M.  46  Geo.  III.— Affidavit.     Warrant  of  At- 
torney.   Scotland.    T.  553  (c.) 

L. 

Lamb  v.  Nutt,  T.  29  Geo.  III.— Staying  Proceedings.     W.  -     528 

Lampley  k  wife  v.  Sands,  II.  25  Geo.  III. — The  like.     Baron  and 

Feme.     R.     539 
Lando  v.  Corbett  &  others,  M.  26  Geo.  III. — Security  for  Costs. 

W.     534 
Lane  v.  Smith,  M.  46  Geo.  III.— Striking  out  Counts.     T.  -     617 

Langridge,  one,  &c.  v.  Flood,  II.  26  Geo.  III. — Bail.     Member  of 

the  House  of  Commons.    W.     290 
Lapworth,  assignee,  &c.  v.  Wilkes,  M.  46  Geo.  III. — Bringing  back 

Venue.    T.     613 
Lavender  v.  Kilner,  3Iai/,  1797.— Bail.    Exoneretur.     11.  -     294 

Law,  administrator,  v.  Wheat,  jNI.  23  Geo.  III. — Bill  against  At- 
torney.    W.     321 
Laycock  v.  TufTnell,  II.  27  Geo.  III.— Set  off.     Replevin.     W.     -     664 
Leader  v.  Uarris,  M.  37  Geo.  111. — Motion.    Stay  of  Proceedings. 

A.     498 


Ixiv  TABLE  OF  ORIGINAL  CASES. 

Legge  V.  Williams,  M.  23  Geo.  III.— Notice  of  Trial.     W.             -  755 

Liddcll  V.  Johnstone,  H.  38  Geo.  III. — Setting  aside  Award.  A.  844 
Lloyd  V.  IIowcll,  administratrix,  II.  37  Geo.  III. — Judgment  nunc 

pro  tunc.     A.  93 

V.  Maund,  T.  25  Geo.  III.— Taxation  of  Costs.    Wales.    W.  329 

V.  Skutt,  T.  23  Geo.  III.— Amendment.      Costs.     Error. 

W.     715,  720, 1140 

M. 

M'CuUocli  V.  Willocks,  M.   37  Geo.  III. — Setting  aside  Inquisi- 
tion. A.  582 
M'Dougall  V.  Claridge,  M.  48  Geo.  III.— Affidavit.    Plea  in  Abate- 
ment.    Privilege.  640 
Mackenzie  v.  Higgins,  H.  22  Geo.  III. — Statute  of  Limitations.    W.  568 
M'Lean  v.  Austin,  M.  36  Geo.  III. — Security  for  Costs.     Scot- 
land.    A.  534 
Maddox  v.  Abercrombj,  II.  41  Geo.  III. — Affidavit  to  hold  to 

Bail.     T.  187 

Malone  ats. ,  M.  22  Geo.  III.— Affidavits  Arrest.     H.            -  189 

Martineau  v.  Barnes  &  others,  H.  23  Geo.  III. — Consolidating  Ac- 
tions.    R.  616 
Mason  v.  Caswell,  T.  25  Geo.  III.— Attorneys'  Clerks.     Bail.    W.  247 
Massey  v.  Anderton,  H.  43  Geo.  III. — Bringing  back  Venue.     T.  610 
Mattison  v.  Atkinson,  E.  27  Geo.  III.— Oyer.     Copy.     W,            -  587 

Meggison  & ,  Assessing  Damages.               _             .             _  571 

Meggs  &  another,  assignees  of  Cochran,  v.  Ford,  E.  25  Geo.  III. — 

Declaration.     Variance.     W.  450 

Milles  V.  Lyne,  H.  25  Geo.  III.— Writ  of  Inquiry.    Evidence.    W.  581 

Monk  V.  Wade,  T.  29  Geo.  III.— Notice  of  Trial.     W.      -             -  758 
Monkland  v.  De  Grainge,  M.  41  Geo.  III.  —  Costs.     Executors. 

Trover.     T.  978 

Moss  V.  Thwaite,  H.  17  Geo.  III. — Staying  Proceedings.  Trover.  H.  545 
Mountain  v.  Wilkins,  M.  21  Geo.  III.— Bankrupts.     Bail.     R.  & 

H.  247,269 

Mullick  V.  Lushington,  M.  26  Geo.  III.— Mandamus.     A.               -  814 

Mussenden  &  O'Hara,  M.  25  Geo.  III. — Consolidating  Actions.   R.  614 

N. 

Napier's  (Lady)  Case,  T.  21  Geo.  III. — Scotch  Peeress.     Setting 

aside  Proceedings.     H.  118, 145 

Neale  v.  Porter,  T.  44  Geo.  III.— Award.     Costs.     T.       -             -  983 

Neatly  &  Eagleton,  E.  24  Geo.  III.— Execution.     Bankrupt.     R.  -  1010 

Nettleton  v.  Crosby,  H.  38  Geo.  III.— Setting  aside  Award.     A.  -  498 

Nevitt  V.  Lade,  E.  24  Geo.  III.— Staying  Proceedings.     W.           -  539 

'  p    /.; '    I    H.  37  Geo.  III.  —  Staying  Proceedings  on 

;.Trylo'r,j                                                      S-IS-^^-     ^'  488 

Noel  &  others  v.  Eyre,  T.  44  Geo.  III.— Entitling  Affidavits.  T.  -  500 
Norfolk  (Duke  of,)  v.  Anthony  &  and  another,  E.  42  Geo.  III. — 

Costs.     Executors.     T.  986 


TABLE  OF  ORIGINAL  OASES.  Ixy 

Nutt,  administratrix,  v.  Wright  Baronet,  E.  &  T.  25  Geo.  III. — 

Time  to  Plead.     W.     470 

0. 

O'llara  v.  Innes,  M.  27  Geo.  III. — Setting  aside  Proceedings.  R.  529 
Over-Kellet  Inclosure  Act,  Case  on,  11.  38  Geo.  III. — Setting  aside 

Award.     A.     844 

P. 

Palin  V.  Nicholson,  E.  38  Geo.  III. — Assessing  Damages.     A.        -  571 

Palmer  v.  Henderson,  E.  21  Geo.  III.  C.  P.— Double  Pleas.     R.    -  655 

&  Turner,  11.  20  Geo.  III.— Changing  Venue.    Set-off.    II.  G08 

Palter  &  Ellison,  II.  25  Geo.  III.— Testatum  fieri  facias.     R.         -  1022 
Parker  v.  England,  M.  45  Geo.  III. — Attorney's  Undertaking.    T.  224 
Parker  &  Wall,  M.  20  Geo.  III.— Rule  to  bring  in  Body.     Attach- 
ment.    W.  311 
Peterken  v.  Samson  &  another,  M.  25  Geo.  III. — Liability  of  Bail 

above.     W.  &  II.  280 

Petre  v.  Milles,  INI.  22  Geo.  III.— New  Trial.     W.              -            -  907 

V.  Lord  Porchester,  H.  E.  &  T.  23  Geo.  IIL— Judgment. 

Relation.     W.  935 
Petty  V.  Smith,  II.  8  &  9  Geo.  IV.  Exchcq.— Service  of  Venire 

Facias.  156 

Phillips  ats. ,  E.  42  Geo.  IIL— Direction  of  Process.     T.  151 

V.  Ilardinge,  T.  24  Geo.  IIL— Imparlance.     W.    -            -  467 

Philpot  V.  Muller  &  another,  T.  23  Geo.  III. — Non-pros  in  joint 

Action.     W.     459,  077,  728, 1027 
Pitcher  v.  Faucett,  T.  43  Geo.  III. — Prisoner.    Committitur-Piece. 

T.  304 
Pitches  V.  Davcy  &  others,  H.  44  Geo.  III. — Affidavit  to  hold  to 

Bail.  190 
Poidevin  v.  Harvey,  bail  of  Martelli,  M.  51  Geo.  III. — Proceedings 

on  Bail-bond.  297 

Pope  V.  Smith, — Costs.     Attachment.     Service  of  Rule.    -            -  1243 

Potter's  Case,  II.  26  Geo.  IIL— Striking  Attorney  off  Roll.     W.  -  89 

Powell  V.  Ellett,  T.  21  Geo.  IIL— Trespass.     Costs.           -            -  965 

V.  Phillips,  E.  30  Geo.  III. — Arbitration  Bond.     Submis- 

sions.    R.     821 

V.  Taylor,  M.  28  Geo.  IIL— Pleader.     W.  -  -  -  1129 

V.  Wilkins,  H.  37  Geo.  IIL— Changing  Venue.     A.  -     607 

Precious  v.  Bennett,  E.  25  Geo.  IIL— The  like.     W.         -  -     604 

Preston  v.  Bindley,  M.  24  Geo.  III. — Attorneys.     Bail.     Indem- 
nity.    W.     208 

Prichard  v.  Peacock,  E.  35  Geo.  III. — Suggestion.  Double  Costs.  A.  489 
Priddle's  Case,  E.  27  Geo.  IIL— Striking  Attorney  off  Roll.  W.  89 
Pryce  v.  Hodgson,  E.  25  Geo.  IIL— Instantcr.     W.  -  -     507 

Pugh  V.  Martin,  H.  24  Geo.  III. — Latitat.     Commencement  of  Ac- 
tion.    W.  140,719 
Putland  V.  Putland  &  another,  E.  57  Geo.  III. — Scire  facias.   Ele- 
git. 1104 
Vol.  l— e 


l^yi  TABLE  OF  ORIGINAL  CASES. 


R. 

Raikes  v.  Townsend  &  another,  M.  45  Geo.  III. — Judgment  non 

obstante  Veredicto.  T.  922 
Read  v.  Stone,  E.  36  Geo.  III. — Judgment  as  in  case  of  Nonsuit.  A.  763 
Rex  V.  Aylett,  T.  25  Geo.  III.— Attachment.  Bail.  W.  -  222.  {d.) 
V.  Johnson,  M.  22  Geo.  III. — Information.  Notice  of  Mo- 
tion. W.  491 
V.  Keene  &  others,  H.  26  Geo.  III. — Trial  at  Bar.  Judg- 
ment.    W.      749,  903,  928 

V.  Murray,  M.  26  Geo.  III.— Habeas  Corpus.     W.    -  -     809 

V.  Partridge,  T.  56  Geo.  III.— Extent.     Costs.         -  -     329 

V.  Pedley,  T.  23  Geo.  III. — Habeas  Corpus.     Changing  Cus- 
tody.    W.     28T 
V.  Priddle,  M.  27  Geo.  III. — Attachment.     Arrest.     Attor- 
ney.    W.     196 
V.  Sparrow  &  another,  H.  28  Geo.  III. — Motion  for  Informa- 
tion.    Election.     W.       10 
Reynolds  v.  Beerling,  M.  25  Geo.  III. — Set-off,  pending  Error.   W.     664 

V.  Cowper,  E.  22  Geo.  III. — Revenue  Officer.     Probable 

Cause.     W.     969 
Richards  v.  Hinton,  E.  22  Geo.  III. — Staying  Proceedings.     Sug- 
gestion.    Judgment.     W.     849,  935 
Robertson  v.  Arnold,  H.  58  Geo.  III. — Security  for  Costs.    Bank- 
rupt.    536 
Robinson,  assignee,  &c.  v.  Owen,  bail  of  Dunkin,  M.  36  Geo.  III. — 

Bail  Bond.     A.     297 
Rowe  V.  Power,  ex  dim.     Boys  &  another,  in  Error.     Dom.     Proc. 

8  March,  1803.— Error  Diminution.  1167 
Rowland  v.  Knapp,  H.  41  Geo.  III.  C.  P. — Bringing  back  Venue.      603 

S. 

St.  Leger  ats. ,  H.  37  Geo.  III. — Attachment  Subpoena.   A.  808 

Salisbury  v.  Whiteall,  H.  43  Geo.  III.— Second  Arrest.     T.           -  175 

Salter  v.  Greenway,  T.  22  Geo.  III.— Costs.     Prohibition.     W.     -  948 

Sambridge,  Ex  parte,  T.  25  Geo.  III. — Re-admitting  Attorney.    W.  90 

Sand  V.  Heysham,  H.  24  Geo.  III. — Attorneys.     Privilege.     W.   -  82 

Sanders  v.  Purse,  H.  35  Geo.  III. — Staying  Proceedings.     A.       -  536 

Saxby  v.  Lys,  M.  26  Geo.  III.— Changing  Venue.     W.     -            -  608 
Schinotti  v.  Bumstead  &  others,  H.  36  Geo.  III. — Inspecting  Books. 

A.  594 
Selby  &  others,  assignees,  &c.  v.  Serres,  E.  41  Geo.  III. — Bail 

Bond.     T.  584 
Semple  v.  Lord  Newhaven,  M.  24  Geo.  III. — Sheriff.     Indemnity. 

W.  &  H.  1017 
Sertes  v.  Hubbard,  E.  44  Geo.  III.— New  Trial.  Costs.  T.  -  916 
Shephard  v.  Macreth,  E.  35  Geo.  III.— Time  for  Pleading.  A.  -  465 
Sheriff  v.  Earquharson,  M.  37  Geo.  III. — Security  for  Costs.  Scot- 
land. A.  534 
Schoolbred  v.  Nutt,  M.  23  Geo.  III.— New  Trial.     Costs.    "W.      -  916 


TABLE  OF  ORIGINAL  CASES.  Jxyij 

Sillitoe  V.  Wallage  &  another,  bail  of  Cawthorne,  M.  43  Geo.  III. — 

Bail  T.     1098,  1124 
Sinclair  v.  Assignees  of  Rentoul,  M.  23  Geo.  III. — Affidavit.    Scot- 
land.    W.     553.  {c) 
Skeat  V.  Scrivens,  M.  31  Geo.  III. — Sheriff.     Distringas.     Attach- 
ment.    II.  313 
Slack  V.  Ilurd,  T.  31  Geo.  III.— Imparlance.     II.              -             -  467 
Slater  v.  Ilorne,  E.  34  Geo.  III.— Oyer.     A.          -             -             -  565 
Smith,  ex  dim.  Jordan  v.  Roe,  M.  22  Geo.  III. — Staying  Proceed- 
ings in  Ejectment.     W.  1232 

,  executor,  v.  Rhodes,  T.  26  Geo.  III. — Executor.     Costs. 

Nonsuit.     W.  978 

V.  "\Yhymall,  M.  26  Geo.  III. — Time  to  plead  in  Abatement. 

W.  639 

Spalding  v.  Mure,  T.  35  Geo.  III. — Mandamus.     A.          -            -  814 
Sparke  v.  Stokes,  one,  &c.  H.  24  Geo.  III. — Attorney.  Venue.   W. 

80,  607 

Speers  v.  Frederic,  T.  25  Geo.  III. — Statute  of  Limitations.     II.   -  14 

Spragg  V.  Young,  II.  35  Geo.  III. — Affidavit  to  hold  to  Bail.     A.  189 
Stafford  V.  Rowntree,  E.  24  Geo.  III. — Issuable  Plea.   Bankruptcy. 

W.  &  II.  471,  568 
Standard  v.  Baker,  M.  26  Geo.  III. — Habeas  Corpus  ad  testifican- 
dum. W.  809 
Stanly  v.  Preston,  T.  24  Geo.  III.— Changing  Venue.  W.  -  606 
Starkey  v.  Poole,  E.  25  Geo.  III.— Liability  of  Sheriff.  W.  -  315 
Stewart  v.  Freeman,  E.  47  Geo.  III. — Affidavit  to  hold  to  Bail.  -  190 
Still  V.  M'lver,  M.  36  Geo.  III.— Security  for  Costs.  Ireland.  A.  534 
Stockton  V.  Hodges,  T.  27  Geo.  III.— Putting  off  Trial.  W.  -  770 
Stokes  V.  Harris,  M.  45  Geo.  III. — Arbitration.  T.  -  -  835 
Stone  V.  Forsyth,  T.  22  Geo.  III.— Replevin.  Costs.  H.  -  660 
Sturt  V.  Moggeridge,  E.  43  Geo.  III.— Award.  T.  -  -  841 
Swann  v.  Boulton,  H.  35  Geo.  III. — Staying  proceedings,  pending 

Error.     A.  532 

Sydenham  v.  Rand,  T.  24  Geo.  III.— Subpoena.     W.         -            -  805 

T. 

Tailleur,  qui  tarn,  v.  Cocks,  T.  22  Geo.  III.— Penal  Actions.     W.  711 

Talbot  V.  Villeboys,  M.  23  Geo.  III.— Inspecting  Court  Rolls.    II.  594 

Taylor  v.  East  India  Company,  M.  33  Geo.  III. — Mandamus.     A.  814 

V.  Green,  II.  38  Geo.  III.— New  Trial.     Trifling  Action. 

A.  910 

V.  Ward,  E.  24  Geo.  III.— Sheriff's  Poundage.     W.  -1040 

Teasdale  v.  Atkins,  M.  21  Geo.  III. — Enlarging  Time  for  making 

Award.     II.  826 

Thomas  v.  Bayley's  bail,  E.  53  Geo.  III. — Bail  Surrender.     Costs.  542 

Thompson  v.  Billingsley,  T.  37  Geo.  III. — Attachment.    Costs.   A.  480 

V.  Stockdale,  H.  23  Geo.  III.— Full  and  Half  Defence. 

W.  &  R.  637 
Tomlinson  v.  Harrison,  M.  16  Geo.  III.     Changing  Venue.    Privi- 
lege.    H.  606 
Totty  V.  Nesbitt,  T.  24  Geo.  III.— Oyer.     \V.       -            -            -  587 


Jxviii  TABLE  OF  ORIGINAL  CASES. 

Triggs  V.  Triggs,  Trin.  Vac.  1815. — Arrest.    Feme  Covert.     "War- 
rant of  Attorney.  194 
Troughton  v.  Clark  &  another,  bail  of  Hammerton  &  another,  T. 

49  Geo.  III.— Bail.     Execution.  1132 

Tucker  v.  Morgan,  E.  35  Geo.  III. — Changing  Venue.     A.           -  606 
Turner  &  others,  assignees,  «&;c.  v.  Kingston,  H.  23  Geo.  III. — 

Unnecessary  Counts.     "W.  616 

V.  Taylor,  E.  23  Geo.  III.— Summary  Proceeding.     W.     -  530 

Turtle  V.  Lady  Worsley,  M.  29  Geo.  III.— Feme  Covert.     Adul- 
tery.    W.  637 
Turton  v.  Chambers,  M.  43  Geo.  III.— Court  of  Conscience.     T.  960 
Tweddale  v.  Fennell,  T.  56  Geo.  III.— Holydays.            -            -  67 

V. 

Valley  v.  Gardiner,  H.  24  Geo.  III.— Issuable  Plea.     W.  -  471,  2 

Vaughan,  ex  parte,  E.  45  Geo.  III. — Re-admitting  Attorney.    T.    79,  90 
Voght  V.  Elgin,  H.  38  Geo.  III.— Affidavit  to  hold  to  Bail.  -    166 

^• 

Ullock  V.  Hemsworth,  T.  6  Geo.  IV. — Costs  of  Counsel  on  Inquiry.     580 

W. 

Wade  V.  Huntley,' T.  28  Geo.  III.— Setting  aside  Award.     H.      -    841 
Walpole  V.  Alexander,  H.  22  Geo.  III. — Arrest.    Privilege.    Com- 
mon Bail.     W.  196,  216 
Ward  V.  Lowring,  M.  45  Geo.  III. — Taking  Money  out  of  Court. 

T.     628 
Waterlow  &  another,  v.  Galiegne,  E.  7  Geo.  IV. — Misnomer.    Set- 
ting aside  Proceedings.     448 
Waters  v.  Hales,  E.  37  Geo.  III. — Judgment.     Scire  Facias.     A.  1105 
Watson  V.  Gibson,  H.  30  Geo.  III.— Arbitration.    Costs.    -  -     831 

V.  Preston,  E.  25  Geo.  III.  C.  P. — Assessing  Damages.  H.     570 

Webb  V,  Mitchell,  M.  48  Geo.  III.— Entitling  Affidavits.     Bail 

Bond.  304 
Webster  v.  Wilkinson,  H.  26  Geo.  III.— Lords'  Act.  W.  -  382,  511 
Wenham  v.  Tristram,  H.  21  Geo.  III. — Paying  for  Issue.  R.  -  726 
White  V.  Givens,  T.  57  Geo.  III. — Pleading  issuably.     Abiding  by 

Plea.     674 

V.  Griffiths,  T.  35  Geo.  IIL— Staying  Proceedings.     A.      -     516 

Whitworth  v.  Richardson,  E.  23  Geo.  III. — Jurisdiction  by  Bill. 

W.  &  H.     117 
Wilby  V.  Warren,  M.  28  Geo.  IIL— Tender.  Bank  Notes.  Banker's 

Drafts.     H.     187 
Wilkinson  &  Jordan,  H.  23  Geo.  III. — Staying  Proceedings  on 

Annuity  bond.     R.     543 
Wilkinson  v.  Commissioners  of  Navy,  E.  25  Geo.  IIL — New  Trial. 

Costs.     H.     915 
Williams  v.  Jacques,  M.  24  Geo.  IIL— Bail  Bond.    W.    -  -    306 


TABLE  OF  ORIGINAL  CASES.  Ixix 

Williams  v.  Williams,  T.  2G  Geo.  III. — Notice.     Inquiry.     Wales. 

W.  573 

Willie  V.  Benwell,  T.  25  Geo.  III.— Death  of  Sheriff.     W.            -  314 
Willison  V.  Smith,  E.  22  Geo.  III. — Bankruptcy.     Feigned  Issue. 

W.  &  11.  292 

Wilson  V.  Campbell,  M.  20  Geo.  III.— Arrest  of  Fem.o  Covert.    II.  195 

Witter  V.  Cazalets,  M.  29  Geo.  III.— Inspection.     Time  to  Tlead.  592 
Wood  V.  Watkins,  II.  43  Geo.  III.— Certificate  of  Wilful  Trespass. 

T.  068 

Wright  &  another  v. ,  44  Geo.  III.— Teste  of  Process.     T.  129 

V.  Jones,  H,  45  Geo.  III. — Costs.     Discontinuance.    T.     -  979 

V.  Ley,  II.  15  Geo.  III. — Bail.     Justification.        -            -  2G0 

&  another  v.  Willes,  M.  21  Geo.  III. — Indorsement  on  Pro- 
cess.    Irregularity.     R.  100 
Wrightson  V.  Mason,  E.  27  Geo.  III.— Afiidavits.     W.      -            -  502 

Y. 

Yates  V.  Edmonds,  T.  35  Geo.  III. — Rule  to  Plead.     Amendment. 

A.  475,  708 

Yeo  V.  Allen,  H.  23  Geo.  III.— Bankruptcy.  Feigned  Issue.     W.  212 


INTRODUCTION. 


By  way  of  introduction  to  the  following  work,  it  may  not  be  improper  to 
take  a  cursory  view  of  the  proceedings  in  personal  actions,  in  the  courts  of 
King's  Bench  and  Common  Pleas ;  and  the  practice  by  which  they  are 
regulated,  from  the  commencement  of  the  suit,  to  the  obtaining  of  final 
judgment  and  execution ;  and  to  give  some  account  of  the  origin  and  pro- 
gress of  the  work,  and  the  changes  it  has  undergone  in  the  different 
editions. 

The  general  nature  of  an  action  is  thus  given  by  an  elegant  writer  on 
the  law  and  constitution  oi  England."^  "A  person,  (let  us  suppose,)  who 
has  a  cause  of  action,  either  in  a  right  detained,  or  an  injury  done,  is 
determined  to  bring  his  action ;  and,  by  his  attorney,  takes  out  process 
against  the  party  complained  of ;  in  consequence  of  which,  the  party  com- 
plained of  (whom  we  call  the  defendant,)  either  puts  in  common  or  special 
hail,  as  the  case  requires.  The  defendant  being  thus  secm-ed,  the  plaintiff 
declares,  in  proper  form,  the  nature  of  his  case.  The  defendant  answers 
this  declaration ;  and  the  charge  and  defence,  by  due  course  of  pleading, 
are  brought  to  one  or  more  plain,  simple  facts.  These  facts,  arising  out  of 
the  pleadings,  and  thence  called  issues,  come  next  to  be  tried  by  a  jury. 
The  jury  having  heard  the  evidence  upon  the  issue  before  them,  find  (we 
will  suppose,)  a  verdict  for  the  plaintiff.  On  that  verdict,  judgment  is 
afterwards  entered.  The  plaintiff's  costs  of  suit  are  then  taxed,  by  the 
oflficer  of  the  court ;  and  the  judgment  is  put  in  execution,  by  levying  on 
the  defendant's  effects,  the  damages  given  by  the  jury,  and  the  costs 
allowed  by  the  court ;  which  being  done,  there  is  an  end  of  the  suit,  and 
both  parties  are  once  more  out  of  court." 


*  Wynne's  Eunomus,  Dial.  II.  2  V.  p.  131. 


Ixxii  INTRODUCTION. 

The  principal  proceedings  in  an  action  are  first,  the  warrant  of  attorney, 
to  prosecute  or  defend ;  secondly,  the  j^rocess  used  for  bringing  the  de- 
fendant into  coui't ;  thirdly,  his  appearance  and  hail;  fourthly,  the  plead- 
ings, beginning  with  the  declaration ;  fifthly,  the  issue ;  sixthly,  the  trial, 
or  determination  of  the  issue ;  seventhly,  the  Judgment ;  and  eighthly,  the 
execution :  To  which  may  be  added  the  proceedings  in  scire  facias  to 
revive  the  judgment,  or  in  error  to  reverse  it ;  though  these  are  rather  to 
be  considered  as  distinct  actions,  or  proceedings,  arising  out  of,  than  as 
parts  of  the  original  suit.  The  above  proceedings  are  from  time  to  time 
entered  on  the  7'olls  of  the  court ;  which  thence  take  their  denomination 
of  the  warrant  of  attorney  roll,  the  process  roll,  the  recognizance  roll,  the 
imparlance,  plea,  or  issue  roll,  the  nisi  pi'ius  roll  or  record,  the  judgment 
roll,  (on  which  latter  is  entered  the  award  of  execution,)  the  scire  facias 
roll,  and  the  roll  of  proceedings  on  writs  of  error,  and  false  judgment. 

Subordinate  to  these  principal  proceedings,  there  are  others  of  an  aux- 
iliary nature,  which  occur  in  the  course  of  a  suit ;  such  as,  in  bailable 
actions,  the  arrest  and  bail-bond,  with  the  proceedings  thereon,  or  against 
the  sheriff,  to  compel  him  to  return  the  writ,  and  bring  in  the  body.  These 
happen  before  the  plaintiff  has  declared  absolutely.  After  declaration  and 
before  plea,  the  defendant,  in  order  to  prepare  for  his  defence,  is,  under 
circumstances,  allowed  to  crave  oyer  of  deeds,  &c.  or  copies  of  written 
instruments,  call  for  the  particulars  of  the  plaintiff's  demand,  or  claim 
inspection  of  public  books,  court  rolls,  &c. ;  or  he  may  move  the  court  to 
change  the  venue,  consolidate  actions,  strike  out  superfluous  counts,  or 
bring  money  into  court.  After  issue  and  before  trial,  the  plaintiff  should 
give  notice  of  trial,  sue  out  the  jury  process,  and  make  up  and  pass  the 
record  of  nisi  p>rius :  and  each  party  should  prepare  a  brief  for  counsel, 
and  subpoena  his  witnesses.  After  trial  and  before  judgment,  the  unsuc- 
cessful party  may  move  the  court  for  a  new  trial,  or  in  arrest  of  judgment; 
or  for  judgment  non  obstante  veredicto,  a  repleader,  or  venire  facias  de 
novo. 

The  variations  in  the  proceedings  are  occasioned,  first,  by  the  natm'e  of 
the  action,  and  the  parties  by  or  against  whom  it  is  brought ;  as  whether 
it  be  founded  in  contract  or  tort,  or  be  brought  by  or  against  one  or  more 
plaintiffs  or  defendants,  by  the  assignees  of  a  bankrupt  or  insolvent  debtor, 
or  by  or  against  baron  and  feme,  surviving  partners,  executors  or  adminis- 
trators, heirs  or  devisees,  &c. :  Secondly,  by  the  mode  of  commencing  the 
action ;  as  whether  it  be  commenced  originally  in  the  King's  Bench  or 
Common  Pleas,  or  removed  thither  from  an  inferior  court :  and,  in  the  for- 
mer case,  whether  it  be  commenced  by  original  writ,  bill  of  3Iiddlesex  or 
latitat,  capias  quare  clausum  fregit,  or  attachment  of  privilege,  or  by 
bill  exhibited  to  the  court,  and  brought  against  common  persons,  or  peers 
of  the  realm,  members  of  the  House  of  Commons,  corporations,  hundre- 


INTRODUCTION.  Ixxiil 

dors,  attorneys,  officers  of  the  court,  or  prisoners  in  the  actual  custody  of 
the  sheriff  or  marshal :  Thirdly,  Jjy  the  nature  of  the  process  used  for 
bringing  the  defendant  into  court ;  which  is  either  a  mere  summons,  an 
attachment  or  distringas  against  his  property,  or  a  capias  against  his  per- 
son ;  which  latter  process,  in  point  of  form,  is  common  or  special,  and  in 
effect  is  bailable  or  not  bailable  ;  and  upon  a  bailable  capias,  the  defendant 
is  either  taken,  or  stands  out  to  process  of  outlawry :  Fourthly,  by  the 
appearance  of  the  parties;  and  whether  they  prosecute  or  defend  the 
action  in  person  or  by  attorney,  or,  in  case  of  infimcy,  ])y  prochein  amy 
or  guardian :  Fifthly,  by  the  course  which  the  proceedings  take ;  and 
whether  the  action  be  prosecuted,  or  abate  by  the  death  of  the  parties ;  or 
the  plaintiff  voluntarily  abandon  it  by  a  discontinuance,  nolle  prosequi, 
stet  processus,  or  cassetur  hilla  vel  breve;  or  make  default,  and  suffer 
judgment  of  non  pros  for  not  declaring,  replying,  or  entering  the  issue, 
or  judgment  as  in  case  of  a  nonsuit  for  not  proceeding  to  trial ;  or  the  de- 
fendant compromise  or  compound  the  action,  confess  it  or  let  juilgment  go 
by  default. 

If  the  action  be  prosecuted,  the  variations  in  the  proceedings  are  occa- 
sioned. Sixthly,  by  the  natui'e  of  the  declaration,  and  subsef^uent  plead- 
ings; as  whether  the  declaration  be  common  or  special,  and  consist  of  one 
or  more  counts,  and  whether  it  be  in  chief  or  by  the  bye,  and  delivered  or 
filed  absolutely  or  de  bene  esse,  and  whether  the  defendant  plead  or  demur 
thereto  ;  and,  if  he  plead,  whether  it  be  to  the  jurisdiction  of  the  court,  in 
abatement,  or  in  bar ;  and  if  the  latter,  whether  he  plead  one  or  more  pleas, 
and  whether  they  be  general  or  special ;  and  if  special,  whether  the  repli- 
cation thereto  be  in  denial,  or  confession  and  avoidance,  or  by  way  of  estop- 
pel, or  new  assign  the  injury  complained  of ;  and  whether  there  be  any 
rejoinder,  surrejoinder,  rebutter,  or  surrebutter,  and  of  what  it  consists : 
Seventhly,  by  the  nature  of  the  issue,  joined  upon  the  pleadings ;  as  whether 
it  be  an  issue  in  fact  or  in  law ;  and  if  in  fact,  whether  it  be  triable  by  the 
court,  upon  nul  tiel  record  ;  by  a  jury,  upon  pleadings  concluding  to  the 
country;  or  by  the  bishop's  certificate,  upon  a  plea  of  ne  unqucs  accouple, 
&c. :  Eighthly,  by  the  mode  of  trial,  and  the  proceedings  in  the  course  of 
it ;  as  whether  it  be  at  bar  or  nisi  prius,  or  by  a  common  or  special  jury, 
or  the  defendant  at  the  trial  plead  ^;?f?8  darrein  continuance,  or  the  parties 
agree  to  withdraw  a  juror,  or  refer  the  cause  to  arbitration,  or  there  be  a 
nonsuit  or  verdict,  and  if  a  verdict,  whether  it  be  general  or  special,  or  there 
be  a  special  case,  bill  of  exceptions,  or  demurrer  to  evidence:  Ninthly,  by 
the  nature  oi  i)\G  judgment ;  which  is  either  for  the  plaintiff  or  defendant; 
for  the  former  by  confession,  non  sum  informatus,  or  nihil  dicit,  for  the 
latter  on  a  non  pros,  discontinuance,  nolle  prosequi,  cassetur  hilla  vel 
breve,  retraxit,  nonsuit,  or  as  in  case  of  a  nonsuit,  and  for  either  party  upon 
demurrer,  7iul  tiel  record,  verdict,  or  the  bishop's  certificate  :  Lastly,  by 


Ixxiv  INTRODUCTION. 

the  species  of  execution  ;  as  whether  it  be  hj  fieri  facias  against  the  de- 
fendant's goods,  by  capias  ad  satisfaciendum  against  his  person,  by  elegit 
against  his  goods  and  a  moiety  of  his  lands,  or  by  extendi  facias,  or  extent, 
against  his  body,  lands  and  goods,  or  in  some  cases  against  his  lands  and 
goods,  or  lands  only. 

The  practice  of  the  court,  by  which  the  proceedings  In  an  action  are 
governed,  is  founded  on  ancient  and  immemorial  usage,  (which  may  not 
improperly  be  termed  the  common  law  of  practice,)  regulated  from  time  to 
time  by  rules  and  orders,  acts  of  parliament,  and  judicial  decisions.  The 
practice  is  the  law  of  the  court,  and  as  such,  is  a  part  of  the  law  of  the 
land  ;*  and  it  has  been  so  strictly  adhered  to,  that  in  the  case  of  Bewdlei/,f 
a  practice  of  seven  years  only  was  allowed  to  prevail  against  the  express 
words  of  an  act  of  parliament.^  The  rules  and  orders  of  the  court  are 
either  such  as  are  made  for  the  regulation  of  its  general  practice,  or  such 
as  apply  only  to  the  proceedings  in  particular  causes.  The  general  rules 
are  confined  in  their  operation  to  the  court  in  which  they  are  made ;  and 
for  the  most  part  respect  the  mode  of  conducting  the  proceedings.  Hence 
we  find,  that  acts  of  parliament  are  sometimes  necessary,  to  introduce 
regulations  extending  to  all  the  courts,  or  creating  some  changes  or  alter- 
ation in  the  proceedings  themselves.  And  as  questions  arise  respecting 
the  regularity  of  the  proceedings,  the  courts  are  called  upon  to  settle,  by 
judicial  decisions,  the  course  of  their  own  practice,  or  to  fix  the  construc- 
tion of  the  rules  or  acts  of  parliament  which  have  been  made  respecting  it. 

Such  is  the  nature  o? practice  :  upon  which  it  is  observable,  that  as  the 
actions  and  proceedings  in  general  are  the  same,  in  all  the  superior  courts 
of  common  law,  there  must  necessarily  be  a  great  uniformity  in  the  practice 
of  each  ;  and  especially  when  it  is  considered,  that  the  courts  have  in  many 
instances  adopted  the  same  general  rules,  and  are  governed  by  the  same 
acts  of  parliament,  in  the  construction  of  which  their  decisions  are  for  the 
most  similar.  The  principal  difierences  arise  from  the  original  constitution 
of  each  particular  court,  its  jurisdiction  and  officers,  and  the  peculiar  rules 
laid  down  for  regulating  its  proceedings ;  and  they  consist  for  the  most 
part  in  the  nature  of  the  process  used  for  bringing  in  the  defendant,  &c. 
and  the  manner  in  which  it  is  returnable,  the  times  prescribed  or  allowed 
for  particular  purposes,  and  the  modes  of  transacting  business  by  the  court, 
or  its  officers.  § 


*  Jenk.  Cent.  295.  2  Co.  17.  4  Co.  93,  (6).  Hard.  98,  2  Ses.  Cas.  342.  1  "Wils.  162. 
4  Bur.  2572. 

t  1  P.  Wms.  207,  223. 

%  2  Str.  755  ;  and  see  3  Bur.  1755.  But  this  doctrine  does  not  seem  to  be  tenable.  See  1 
Blac.  Com.  76,  7.     1  Chit.  Rep.  299.  (a.) 

§  It  were  to  be  wished  that  many  of  these  dififerences  were  abolished,  in  order  to  render 
the  practice  more  simple  and  uniform. 


INTRODUCTION.  IxxV 

In  the  following  work,  it  Is  the  author's  Intention  to  treat  of  'personal 
actions,  and  the  various  means  of  commencing,  prosecuting,  and  defending 
them,  in  the  courts  of  King's  Bench  and  Common  Pleas,  and  occasionally 
in  the  court  of  Exchequer  of  Pleas :  And  with  that  view,  he  has  considered 
the  proceedings,  in  the  order  in  which  they  present  themselves,  and  follow 
one  another,  in  the  course  of  the  suit ;  and  has  endeavored  to  explain,  not 
only  the  principal  proceedings,  but  also  such  as  are  of  a  subordinate  nature, 
with  all  the  variations  attendant  upon  each,  by  a  methodical  arrangement  of 
the  several  acts  of  parliament,  rules  of  court,  and  judicial  decisions  respect- 
ing them.  In  stating  the  mode  of  commencing  tlie  suit,  he  has  attended 
to  the  jurisdiction  of  the  courts,  as  it  is  exercised  by  original  writ,  bill,  or 
attachment  of  privilege.  The  proceedings  against  peers  of  the  realm,  cor- 
porations and  hundredors,  are  classed  under  the  head  of  proceedings  by 
original  writ,  to  which  outlawry  is  considered  as  an  incident ;  and  the  pro- 
ceedings against  members  of  the  House  of  Commons,  on  the  statute  12  & 
13  W.  III.  c.  3,  as  well  as  against  attorneys  and  officers  of  the  court,  and, 
in  the  King's  Bench,  against  prisoners  in  the  actual  custody  of  the  sheriff 
or  marshal,  under  that  of  proceedings  by  hill. 

The  doctrine  o^  pleas  tindi  pleading,  and  of  demurrers,  amendments  and 
jeofails,  is  considered,  with  reference  to  the  different  actions,  so  far  as  ap- 
peared to  be  necessary  for  understanding  the  practice  of  the  courts  :  And 
the  reader  will  here  find  a  full  account  of  the  practice  on  motions,  and  the 
cases  in  which  the  courts  will  set  aside  or  stay  the  proceedings,  the  sub- 
ject of  arbitration,  and  the  law  of  damages  and  costs,  the  doctrine  of 
extents,  in  chief  and  in  aid,  with  the  proceedings  in  scire  facias,  and  error. 
The  proceedings  in  criminal  cases  in  general,  and  in  real  and  mixed  ac- 
tions, being  foreign  to  the  purpose  of  this  work,  are  only  incidentally  men- 
tioned in  the  course  of  it.  The  doctrine  of  attachments,  however,  is  con- 
sidered, as  it  arises  out  of,  and  is  connected  with,  the  proceedings  in  civil 
suits.  A  collection  will  be  found,  towards  the  end  of  the  first  volume,  of 
all  the  cases  determined  by  the  court  of  Common  Pleas,  on  the  amend- 
ment oi  fines  and  recoveries :  And  the  practice  in  the  action  of  ejectment 
is  fully  treated  of  in  the  last  chapter. 

This  work  was  originally  published  in  three  parts  :  The  first  part  made 
its  appearance  in  November,  1790;  and  was  received  by  the  profession,  in 
a  manner  highly  flattering  to  its  author.  This  part  contained  the  whole 
of  the  proceedings  in  personal  actions,  in  the  court  of  King's  Bench,  pre- 
vious to  the  plea ;  together  with  all  that  was  peculiar  to  the  proceedings 
by  and  against  attorneys  and  officers  of  tlie  court,  against  peers  of  the 
realm,  and  members  of  the  house  of  commons,  upon  the  writ  of  habeas 
corpus,  and  against  prisoners  in  the  actual  custody  of  the  sheriff,  or  mar- 
shal, &c.    In  the  second  part,  which  was  published  in  November,  1794,  the 


Ixxvi  INTRODUCTION. 

proceedings  at  largo  were  continued,  from  the  demand  of  plea,  to  final 
judgment  and  execution ;  and  the  third  part,  which  treated  of  the  proceed- 
ings in  scire  facias  and  error,  was  published  in  November,  1798. 

In  the  following  year,  a  second  edition  of  the  whole  work  was  called 
for:  in  which  some  parts  of  it  were  considerably  enlarged,  particularly 
those  which  treated  of  actions  and  declarations ;  of  the  doctrine  of  arrest: 
of  tlic  proceedings  against  the  sheriff,  to  compel  him  to  return  the  writ, 
and  bring  in  the  body :  of  attorneys,  and  the  mode  of  their  admission,  with 
their  duties,  privileges,  and  disabilities ;  of  the  practice  on  motions  ;  and 
the  judgment  and  execution  against  heirs  and  tertenants. 

In  the  third  edition,  which  was  published  in  October,  1803,  a  new  Chap- 
ter was  inserted,  on  the  removal  of  causes  from  inferior  courts ;  by  writ 
of  certiorari  a.nd  habeas  corjms,  from  such  as  were  of  record,  and  by  writ 
of  2^one,  recordari  facias  loquelam,  or  accedas  ad  curiam,  from  such  as 
were  not  of  record:  And  this  edition  was  not  confined  altogether  to  the 
practice  of  the  court  of  King's  Bench ;  but  contained  an  account  of  the 
means  of  commencing  actions  in  the  court  of  Common  Pleas ;  and  refer- 
ences were  occasionally  made  to  the  rules  of  that  court,  and  more  fre- 
quently to  the  cases  of  practice  determined  therein,  as  reported  by  Lord 
Chief  Justice  Willes,  and  other  subsequent  reporters. 

ThQ  fourth  edition  was  published  in  January,  1808.  In  this  was  com- 
prised the  substance  of  all  the  rules  and  orders  of  the  court  of  King's 
Bench,  on  the  subject  of  practice,  from  the  beginning  of  the  reign  of  James 
the  1st,  down  to  that  period ;  and  in  addition  to  those  of  the  Common 
Pleas,  which  were  before  referred  to,  from  the  printed  collection,  ending 
in  1743,  it  contained  all  the  subsequent  rules  of  that  court,  many  of  which 
were  never  before  published. 

Still,  however,  the  publication  related  principally  to  the  practice  of  the 
court  of  King's  Bench.  The  author  had  originally  intended  to  treat  of 
the  practice  of  both  courts:  but  was  deterred  from  the  execution  of  his 
design,  by  the  difficulty  of  the  undertaking,  and  a  fear  of  failure  from  at- 
tempting too  much.  Encouraged,  however,  by  the  success  he  met  with, 
he  afterwards  inserted  some  of  the  more  recent  rules  and  decisions  of  the 
court  of  Common  Pleas ;  and  in  the  fifth  edition,  published  in  November, 
1812,  he  endeavoured  to  incorporate  the  whole  of  its  practice  with  that  of 
the  King's  Bench.  For  this  purpose,  and  with  a  view  to  the  difierences 
between  the  practice  of  the  two  courts,  which  will  be  noticed  hereafter, 
particular  attention  was  paid  to  the  constitution  of  the  court  of  Common 
Pleas,  its  jurisdiction  and  officers,  and  the  process  used  for  bringing  in  the 
defendant,  &c.  And  besides  some  of  the  earlier  cases  of  practice,  most 
of  those  reported  by  Sir  G-eorge  Cooke,  the  author  of  the  Practical  Regis- 
ter^ and  Mr.  Secondary  Barnes,  were  referred  to ;  and  all  that  were  to  be 


INTRODUCTION.  Ixxvii 

found  in  the  reports  of  Lord  Chief  Justice  Willes,  Mr.  Serjeant  Wilson^ 
Mr.  Justice  BlacJcstone,  Mr.  Henry  Blackstone,  Messrs.  Bosanquet  ^ 
Puller,  and  Mr.  William  Pyle  Taunton:  And  lastly,  so  much  of  the 
official  practice  was  added,  as  tlie  Author  could  collect  from  the  books  upon 
the  subject,  or  was  suggested  by  his  own  experience  and  observation. 

In  the  sixth  edition,  which  appeared  in  January,  1817,  the  proceedings 
in  actions  by  and  against  attorneys,  and  against  prisoners  in  custody  of 
the  sheriff,  &c.  and  for  the  removal  of  causes  from  inferior  courts,  were 
placed  before  the  declaration,  and  time  for  pleading  in  ordinary  cases ; 
and  some  other  transpositions  were  made,  for  the  sake  of  perspicuity,  and 
in  order  more  clearly  to  connect  the  different  parts  of  the  subject.  The 
law  and  practice  of  arrest  were  treated  of  altogether,  in  the  ninth  Chap- 
ter ;  and  the  motions  and  rules  of  the  courts  were  newly  arranged,  in  the 
eighteenth;  which  also  included  the  doctrine  of  attachments,  with  the 
mode  of  proceeding  thereon,  and  some  addition  to  the  practice  by  sum- 
mons and  order.  In  a  subsequent  Chapter,  a  general  view  was  taken  of 
the  rolls  of  the  courts,  on  which  issues  and  other  matters  of  record  are 
entered,  with  the  entries  thereon,  and  by  whom,  and  in  what  manner  they 
are  made,  and  the  time  and  mode  of  bringing  in  and  docketing  them  ; 
and,  in  the  Chapter  on  executions,  the  writ  of  retorno  hahendo  in  replevin 
was  treated  of,  as  well  as  the  writ  of  habere  facias  possessionem  in  eject- 
ment. The  stamp  duties  on  legal  proceedings,  which  have  been  since 
abolished,  were  also  carefully  stated  in  that  edition,  from  the  last  general 
stamp  act. 

In  the  seventh  edition,  which  was  published  in  January,  1821,  besides 
other  important  alterations  and  additions,  which  are  particularly  noticed 
in  the  preface  thereto,  the  execution  by  levari  facias,  and  the  law  and 
practice  of  extents,  in  chief  and  in  aid,  with  the  proceedings  thereon,  for 
the  crown  or  its  debtor  to  obtain  execution,  or  for  the  defendant  or  a  third 
person  to  resist  them,  were  made  the  subject  of  a  separate  Chapter ;  and, 
in  the  following  one,  the  writ  of  scire  facias  for  the  king  was  treated  of, 
with  the  proceedings  thereon,  for  the  recovery  of  his  debts,  or  obtaining 
a  repeal  of  letters  patent. 

In  the  eighth  edition,  which  was  published  in  June,  1824,  besides  bring- 
ing doAvn  the  acts  of  parliament,  rules  of  court,  and  practical  decisions, 
to  the  end  of  Michaelmas  term  preceding,  some  further  important  altera- 
tions and  additions  were  made.  The  third  Chapter  was  divided,  and 
confined,  in  that  edition,  to  the  admission,  enrolment,  certificates,  and  re- 
admission  of  attorneys  ;  their  privileges,  disabilities,  and  duties,  with  the 
consequences  of  their  misbehaviour.  The  remainder  of  that  Chapter, 
consisting  of  the  proceedings  in  actions  by  and  against  attorneys,  &c.  and 
for  the  recovery  and  taxation  of  their  costs,  was  made  the  subject  of  a 


Ijjxyijj  INTKODUCTION. 

separate  one,  being  the  fourteenth.  The  numerous  decisions  respecting 
attorneys  and  hail,  occasioned  considerable  alterations  and  additions  in 
the  tliird  and  tivelfth  Chapters ;  and  in  the  nineteenth,  there  was  a  new 
and  copious  arrangement  of  the  cases  in  which  attachments  for  contempt 
might  be  moved  for.  The  Chapter  in  the  former  additions,  on  "  motions 
and  rules,  &c.  and  the  practice  by  summons  and  order,  &c."  was  also  di- 
vided ;  and  an  additional  one  formed  out  of  it,  being  the  twentieth  in  the 
eighth  addition,  on  "motions  and  rules,  &c.  peculiar  to  the  action  of  eject- 
ment, and  affidavits  in  support  of  them,  and  such  motions  and  rules  as 
were  not  necessarily  connected  with  any  suit ;"  in  which  Chapter  was  in- 
cluded a  full  account  of  the  motion  and  rule  for  setting  aside  an  annuity, 
and  delivering  up  the  securities  to  be  cancelled,  &c.  with  the  decisions  of 
the  courts,  on  the  statutes  17  Geo.  III.  c.  26,  53  Geo.  III.  c.  141,  and 
3  Geo.  IV.  c.  92.  And,  in  the  thirty-fifth  Chapter,  an  outline  was  given 
of  written  evidence,  referring  to  the  different  books  in  which  the  subject 
was  more  fully  treated  of.  That  edition  too  was  greatly  improved  by  the 
insertion  of  some  very  valuable  notes,  and  references  to  MSS.  cases  of 
practice,  never  before  published,  which  were  kindly  communicated  to  the 
Author  by  Mr.  Justice  Holroyd.  Some  references  were  also  made  therein 
to  the  reports  of  Sir  Orlando  Bridgman,  and  to  the  first  volume  of  those 
of  the  late  Lord  Kenyon.  Of  the  alterations  and  improvements  in  the 
present  edition,  a  full  account  is  given  in  the  Preface. 

The  general  order  of  the  proceedings  is  the  same  in  the  courts  of  King's 
Bench  and  Common  Pleas:  and  the  reader  will  observe,  that,  without 
breaking  in  upon  that  order,  the  author  has  first  of  all  treated  of  the 
practice  that  is  common  to  both,  and  then  of  what  is  peculiar  to  each,  or 
different  in  one  from  the  other  of  them.  When  the  practice  is  the  same 
in  both  courts,  it  is  in  general  so  stated,  by  using  the  word  "courts"  in 
the  plural  number ;  and  where  the  peculiarity  or  difference  between  them 
is  considerable,  it  is  commonly  made  the  subject  of  a  distinct  paragraph ; 
but  otherwise  it  is  noticed  in  the  same  paragraph,  and  most  frequently  at 
the  end  of  it.  In  referring  to  the  rules,  they  are  marked  with  the  initials 
of  the  courts  to  which  they  belong ;  and  in  citing  the  cases,  the  court  in 
which  they  were  decided  is  in  general  mentioned.  It  should  still  be  re- 
membered, however,  that  the  practice  was  originally  written  for,  and  con- 
fined to  the  court  of  King's  Bench:  and  hence,  where  the  "court"  is 
mentioned  in  the  singular  number,  it  must  be  understood  to  mean  that 
court,  unless  the  subject-matter  appear  by  the  context,  or  reference  to  the 
notes,  to  relate  to  the  practice  of  both  courts,  or  be  confined  to  that  of 
the  court  of  Common  Pleas.  Whenever  the  practice  of  the  Exchequer  of 
Pleas  is  introduced,  that  court  is  always  particularly  mentioned. 

For  the  original  cases  referred  to  in  the  course  of  the  work,  the  profes- 


INTRODUCTION.  \xxix 

sion  are  chiefly  indebted  to  Mr.  Justice  Holroyd,  the  late  Mr.  Serjeant 
Munnington,  the  late  Mr.  George  Wilson,  one  of  his  majesty's  learned 
counsel,  Mr.  Abbot,  (now  Lord  Colchester,)  when  at  the  bar,  Mr.  William 
Elias  Taunton,  and  Messrs.  Maule  ^  Sclwyn;  whose  initials  are  added 
in  the  Table,  to  the  names  of  the  cases  they  respectively  furnished.*  The 
few  which  are  not  marked,  were  communicated  singly,  by  other  friends,  at 
different  times. 


*  The  cases  of  Mr.  Justice  Holroyd  are  from  M.  16  to  E.  37  Geo.  III. ;  those  of  Mr.  Ser- 
jeant Jiunninfftoii,  from  E.  18  to  M.  37  Geo.  III.  ;  those  of  Mr.  Wilson,  from  M.  22  to  T.  31 
Geo.  III. ;  those  of  Mr.  Abbot,  from  E.  32  to  E.  39  Geo.  III. ;  those  of  Mr.  Taunton,  from  H. 
40  to  M.  49  Geo.  III. ;  and  those  of  Messrs.  Maule  ^  Selwyn,  from  E.  5G  to  T.  57  Geo,  III. 
inclusive. 


CHAPTER   I. 

Of  Actions,  and  the  Time  limited  for  their  Commencement  ;   and  of 
Notices  of  Action,  t^-c. 

Actions  are  commonly  divided  into  criminal,  or  such  as  concern  pleas 
of  the  crown,  and  civil,  or  such  as  concern  common  pleas.((i)  And  these 
latter  are  again  divided  into  real^  personal,  and  mixed  actions.  In  a 
real  action,  the  proceedings  are  in  rem,  for  the  recovery  of  real  property 
only;  in  a  jyersonal  action,  they  are  in  personam,  for  the  recovery  of 
specific  chattels,  or  of  some  pecuniary  satisfaction  or  rccompencc ;  and  in 
a  mixed  action,  they  are  in  rem  et  personam,  for  the  recovery  of  real  pro- 
perty, and  damages  for  withholding  it.  Again,  in  real  actions,  there  is  a 
distinction  between  those  founded  on  the  possession,  and  those  founded 
on  the  absolute  propert^or  right.{b) 

Personal  actions  are  ex  contractu,  vel  ex  delicto  ;  being  founded  upon 
contracts,  or  for  ivrongs  independently  of  contract. (c)  Actions  upon  con- 
tracts are  Account,  Assumpsit,  Covenant,  Debt,  Annuity,  and  Scire 
facias. 

Account  lies,  at  common  law,  against  a  guardian  in  socage,  bailiff,  or 
receiver,  to  compel  an  account  of  profits,  or  moneys  received  by  the  defen- 
dant ;{d)  and  by  the  statute  -t  &  5  Anne,  c.  16,  §  27,  it  may  be  maintained 
against  the  executors  and  administrators  of  every  guardian,  bailiif,  and 
receiver,  and  also  by  one  joint-tenant  and  tenant  in  common,  his  executors 
and  administrators,  against  the  other,  as  bailiff,  for  receiving  more  than 
comes  to  his  just  share  or  proportion,  and  against  his  executors  and 
administrators.  The  proceedings  in  this  action  being  difiicult, 
*dilatory,  and  expensive,  it  is  now  seldom  used,  especially  as  [  *2  ] 
the  party  has  in  general  a  more  beneficial  remedy,  by  action 
for  money  had  and  received,  kc. ;  or,  if  the  matter  be  of  a  complicated 
nature,  by  resorting  to  a  court  of  equity.  It  has  been  ruled  at  JSlsi 
Prills,  that  an  action  of  assumj^sit  cannot  be  maintained  on  a  running 
account  between  merchants,  or  a  merchant  and  his  broker ;  the  proper 

(a)  Co.  Lit.  284,  b.  Cowp.  391. 

{/>)  Steph.  PI.  3,  and  see  Com.  Dig.  tit.  Action,  D.  2. 

(c)  1  Biic.  Abr.  26.  Gib.  C.  P.  5.  Tlie  outline  here  given  of  personal  actions  is  not 
intended  to  point  out  the  particular  cases  in  -which  they  are,  or  are  not  maintainable;  but 
merely  to  exhibit  a  general  view  of  them,  and  the  form  they  assume  in  pleading,  to  which 
the  practice  of  the  courts  more  immediately  relates.  To  fill  up  this  outline,  and  obtain  full 
information  on  the  doctrine  of  personal  actions,  and  the  facts  necessary  to  support  them, 
see,  besides  the  more  elementary  works  of  .Mr.  Justice  Blackstonc,  Reeves,  and  Wovddeson,  the 
appropriate  titles  in  the  Abridgements  of  Rolle,  D' Anvcrs,  Vincr,  and  Bacon;  Comyns'it 
Digest;  Lord  Chief  Baron  G?Mcr<'s  treatises  on  the  actions  of  debt  and  replevin;  Mr.  Wilkin- 
son's Practice  in  the  latter  action;  the  law  of  Aisi  Prius,  by  Mr.  Justice  Buller,  Efpinasse, 
and  Seltrt/n;  Mr.  Serjeant  Williavis's  'Sotos  on  Saunders;  Chitt;/ on  Pleading,  I  V.  Chap.  IL, 
and  Mr.  Serjeant  Slei'/ien's  Principles  of  Pleading,  12,  &c.  In  the  action  of  assumpsit  in  par- 
ticular, the  contracts  on  which  it  is  founded  are  very  fully  treated  of  by  Mr.  Comi/n,  and  the 
pleadings  therein  by  Mr.  Serjeant  E.  Lawcs.  See  also  Mr.  Roscoc's  treatise  on  the  law  of 
actions  relating  to  real  property.  (rf)  Co.  Lit.  172,  a. 

Vol.  I.— 1 


2  OF  ACTIONS,  ETC. 

remedy  being  by  action  of  account  ;{a)  but,  in  a  subsequent  case,  it  was 
holdcn,  that  whatever  doubt  might  have  existed  on  the  subject  a  century 
back,  the  action  of  assumpsit,  for  the  bahance  due  on  the  result  of  numer- 
ous transactions,  had  been  so  long  maintained,  that  it  was  now  much  too 
late  to  make  any  objection  to  it  ;{h)  and  it  seems  to  be  now  settled,  that 
assumpsit  will  lie  for  the  balance  of  an  account,  however  voluminous 
it  may  be,  and  that  the  plaintiff  is  not  obliged  to  bring  an  action  of 
account. {c)[Y\ 

Assumpsit,  which  is  now  become  the  most  common  action  of  any  upon 
contracts,((^)  lies  for  the  recovery  of  damages,  upon  promises,  express  or 
implied,  without  deed.  These  promises  are  various,  according  to  the  sub- 
ject matter  of  them,  and  the  considerations  upon  which  they  are  founded. 
In  general,  they  are  to  pay  or  repay  money,  or  to  do  or  forbear  some 
other  act.  Promises  to  pay  money  are  by  far  the  most  numerous  of  any, 
and  may  be  classed  in  the  following  order :  First,  the  indebitatus  assump- 
sit, on  a  promise  to  pay  a  precedent  debt,  for  the  sale,  exchange  or  hire 
of  cattle  or  goods,  necessaries,  works  and  services,  or  moneys ;  for  the 
sale,  assignment,  or  use  of  lands,  &c. :  Secondly,  the  quantum  meruit,  or 
valebant,  on  a  promise  to  pay  the  plaintiff,  for  the  like  considerations,  as 
much  money  as  he  deserved  to  have,  or,  for  goods,  &c.,  as  much  as  they' 
were  reasonably  worth :  Thirdly,  the  insimul  coihputassent,  on  a  promise 
to  pay  the  sum  due  on  an  account  stated  between  the  parties.  The  above 
are  usually  denominated  common  assumpsits :  Fourthly,  the  assumpsit  on 
a  promise  to  pay  money,  in  consideration  of  a  legal  liability  to  pay  it, 
which  maybe  termed  the  liability  assumpsit ;[e)  as  upon  a  bill  of  exchange, 
(inland  or  foreign,)  banker's  draft,  promissory  note,  bye-law,  or  foreign 
judgment ;  or  for  a  fine  on  admission  to  copyhold  premises,  legacy  charged 
on  land,  toll,  port-duty,  contribution  to  party-walls,  &c.  :(/)  Fifthly, 
mutual  promises,  which  are  either  to  pay  money,  as  on  wagers  or  feigned 
issues,  or  to  do  some  other  act,  as  to  marry,  &c.,  or  to  perform  special 
agreements,  charter-parties,  policies  of  assurance,  or  awards ;  the  breach 
of  which  may  consist  either  in  the  non-payment  of  money,  or  the 
[  *3  ]  *non-performance  of  some  other  act :  Sixthly,  sp)ecial  assumpsits, 
on  promises  to  pay  money,  founded  on  some  consideration  exe- 
cuted or  executory  ;  as  in  consideration  of  marriage,  the  sale,  exchange  or 

(a)  2  Campb.  238,  and  see  Gilb.  Evid.  192.     2  Keb.  781.     Tri.  per  pais,  401. 

(b)  Arnold  v.  Webb,  5  Taunt,  432.  (a.) 

(c)  5  Taunt.  431.  1  Marsh.  115,  S.  C.,  and  see  2  Chit.  Rep.  10,  in  which  two  principal 
officers  of  the  court  were  appointed  auditors,  on  motion,  in  an  action  of  account.  3  Dowl.  & 
Ryl.  596. 

(d)  The  action  of  assumpsit,  though  founded  upon  contract,  is  properly  an  action  upon  the 
ease.     1  Bac.  Abr.  30.     Gilb.  C.  P.  6. 

(e)  The  difference  between  the  indebitatus  and  liabiliti/  assumpsit  is,  that  in  the  former,  the 
promise  is  founded  on  a  pre-existing  debt,  the  consideration  for  which  is  stated  generally ; 
but  in  the  latter,  the  circumstances  which  induce  the  defendant's  liability,  are  set  forth 
specially  in  the  declaration. 

(/)  The  promises  that  have  been  hitherto  mentioned,  are  for  the  most  part  implied:  those 
which  follow  are  generally  express. 

[1]  In  England,  to  avoid  the  necessity  of  bringing  this  form  of  action,  and  at  the  same 
time,  to  retain  the  business  involving  the  settlement  of  mercantile  accounts  in  the  common 
law  courts,  actions  on  the  case  for  not  accounting  were  introduced,  which  received  judicial 
sanction  when  founded  on  the  breach  of  an  express  promise  to  account.  Carthew,  89.  1 
Salk.  9.  1  Shower,  71.  2  Binney,  330.  But  it  has  been  made  a  question-  whether  the  law 
raises  a  promise  by  i?iiplication  to  account,  where  there  has  been  no  express  promise  given 
by  an  agent  to  account.     See  2  Binney,  325. 


OF  ACTIONS,  ETC.  3 

hire  of  cattle  or  goods,  necessaries,  forbearance,  work  and  services,  or 
indemnity;  or  for  the  sale,  assignment,  or  use  of  lands,  &c. :  which  pro- 
mises may  be  made  either  by  the  party  benefited,  or  by  third  persons. 
I'romises  to  repay  money  are  express  or  implied ;  the  latter  may  in 
general  be  given  in  evidence,  under  the  common  count  for  money  had  and 
received. 

Special  assumjjsits,  on  promises  to  do  or  forbear  some  other  act,  may 
be  considered  as  they  relate  to  persons,  personal  property,  or  real  pro- 
perty; and  are  first,  to  marry,  or  do  some  personal  service:  Secondly, 
upon  a  sale  or  exchange  of  cattle  or  goods,  to  accept,  deliver,  take  back, 
or  return  them ;  or  upon  a  warranty,  as  to  their  title,  quality,  or  value  : 
Thirdly,  upon  a  bailment  of  cattle  or  goods,  to  be  kept,  either  generally 
or  by  way  of  pledge ;  concerning  cattle  or  goods  lent  or  let  to  hire  ;  or 
against  carriers,  wharfingers,  farriers,  &;c. :  Fourthly,  to  provide  necessa- 
ries, for  the  plaintiff,  or  for  third  persons  :  Fifthly,  to  forbear  to  sue,  or 
give  time  for  the  payment  of  a  debt :  Sixthly,  to  perform  works  ;  under 
which  may  be  classed  promises  made  by  professional  persons,  as  attorneys, 
surgeons,  &c. ;  or  respecting  personal  or  real  property :  Seventhly,  upon 
a  retainer,  to  serve  ov  employ  :  Eighthly,  to  sell,  assign,  or  exchange 
lands,  &c.  ;  or  by  or  against  landlord  or  tenant,  to  take,  let,  hold,  repair, 
cultivate,  or  quit  them :  Ninthly,  respecting  real  or  personal  securities : 
Tenthly,  to  account  for  the  profits  of  lands,  or  for  money  or  goods,  &c.  : 
And  lastly,  on  promises  of  indemnity. 

Covenant  lies  for  the  recovery  of  damages,  upon  contracts  l)y  deed. 
This  action  is  founded  upon  articles  of  agreement,  awards,  charter-parties 
of  aff'reightment,  policies  of  insurance,  indentures  of  apprenticeship,  leases, 
mortgages,  &c. ;  and  is  either  for  the  non-payment  of  money,  or  for  not 
doing  or  forbearing  some  other  act. 

Debt  lies  for  the  recovery  of  a  sum  certain  :  First,  on  records  ;  as 
judgments,  or  recognizances :  Secondly,  on  specialties ;  as  single  bills  or 
bonds,  by  or  against  the  parties  or  their  personal  representatives,  or 
against  heirs  or  devisees  ;  or  upon  articles  of  agreement  to  pay  money, 
leases,  mortgages,  &c.  :  Thirdly,  upon  simple  contracts  ;  as  for  services 
and  works,  moneys,  &c,,  it  being  a  rule,  that  whenever  indebitatus 
assumpsit  lies,  debt  will  also  lie ;  or,  by  the  payee  against  the  drawer, 
on  bills  of  exchange,  bankers'  drafts,  or  promissory  notes,  expressed  to 
be  for  value  received,  or  on  bye-laws,  or  foreign  judgments,  or  for  fines 
or  amerciaments,  &c.  :  Or  lastly,  it  is  founded  in  malcjicio :  and  lies 
against  sheriifs,  &c.,  for  escapes  after  judgment ;  or  upon  acts  of  parlia- 
ment, by  the  parties  grieved  or  common  informers. [1] 

Annuity  is  an  action  which  lies  for  the  recovery  of  an  annuity,  or 
yearly  payment  of  a  certain  sum  of  money,  granted  to  another  in  fee,  for 

[1]  It  was  formerly  holden,  in  England,  that  an  action  of  debt  would  not  lie  against  an 
executor  or  administrator,  upon  a  simple  contract  made  by  the  testator,  or  intestate,  (Barry 
V.  Robinson,  1  New  Rep.  C.  P.  293,  and  the  authorities  there  cited,)  except  in  London,  where 
such  an  action  was  maintainable  by  the  custom  ;  (City  of  London's  case,  8  Co.  120.  Rohun 
Priv.  Lond.  1J7,  14D,  151  ;)  but  where  the  contract  was  mi'.de  by  the  executor  or  administra- 
tor, an  action  of  debt  might  have  been  maintained  against  him;  [Riddell  v.  Sutl'm,  5  Ring. 
200.  2  Moore  &  P.  345,  S.  C. :)  And  now,  by  the  late  act  for  the  further  amendment  of  the 
law,  and  belter  advancement  of  justice,  (3  k  4  W'.  IV,  c.  42,  ?  14,  and  see  the  third  Report 
of  the  Common  Law  Commissioners,  pp.  17,  18,  74,)  "  an  action  of  debt  on  simple  contract 
shall  be  maintainable,  in  any  court  of  common  law,  against  any  executor  or  administrator." 
It  should  also  be  observed,  as  connected  with  this  subject,  that,  by  nnother  clause  of  the 
same  statute,  (3  &  4  W.  IV,  c.  42,  2  13,)  "no  wager  of  law  shall  be  hereafter  allowed." 


3  OF  ACTIOXS,  ETC. 

life  or  years,  cliarging  the  person  of  the  grantor  only ;  and  it  may  be 
brought  by  the  grantee  or  his  heirs,  or  his  or  their  grantee, 
[  *4  ]  against  the  *grantor  or  his  heirs. (a)  This  action  is  at  present 
out  of  use,  being  superseded  by  the  action  of  debt  or  covenant. 
But  debt  does  not  lie  at  common  law,  nor  by  stat.  8  Anne,  c.  14,  §  4,  for 
the  arrears  of  an  annuity  or  yearly  rent,  devised  to  A.  payable  out  of 
lands,  during  the  life  of  B.,  to  whom  the  lands  are  devised  for  life,  B. 
paying  the  same  thereout,  so  long  as  the  estate  of  freehold  continues. (6) 
Scire  Facias  lies  by  or  against  the  parties  or  their  representatives,  to 
have  execution  on  a  judgment,  statute  or  recognizance,  for  the  sum 
recovered,  or  acknowledged  to  be  due. 

Actions  for  wrongs  are  Oase,  Detinue^  Replevin,  and  Trespass  vi  et 
armis. 

Actions  on  the  case  are  founded  on  the  common  law,  or  given  by  act 
of  parliament ;  and  lie  to  recover  damages,  for  consequential  wrongs  or 
torts,  to  persons  individually  or  relatively;  or  to  real  or  personal  property, 
or  some  right  or  privilege  incident  thereto.  These  actions  are  either  ex 
delicto,  or  quasi  ex  contractu :  and  they  are  said  to  arise  from  mal- 
feazance,  or  doing  what  the  defendant  ought  not  to  do ;  non-feazance, 
or  not  doing  what  he  ought  to  do ;  and  mis-feazance,  or  doing  what  he 
ought  to  do,  improperly ;  and  they  are  commonly  for  doing  or  omitting 
something  contrary  to  the  general  obligation  of  law,  the  particular  rights 
or  duties  of  the  parties,  or  some  implied  contract  between  them.  To 
persons  individually,  ex  delicto,  they  are  for  some  consequential  hurt  or 
damage,  arising  from  public  nuisances,  or  keeping  mischievous  animals  ;(c) 
in  nature  of  conspiracy;  for  malicious  prosecutions,  of  civil  suits  or 
criminal  charges ;  libels,  scayulalum  magnatum,  or  defamation  of  com- 
mon persons  ;  against  justices,  or  other  officers,  for  refusing  bail,  &c.  :  or, 
quasi  ex  contractu,  against  surgeons,  &c.,  for  improper  treatment.  To 
persons  relatively,  ex  delicto,  they  are  for  seducing,  enticing  away,  or  har- 
bouring wives  or  servants,  per  quod  co7isortium  vel  serviiium 
[  *5  ]  amisit.{d)  *To  personal  property,  ex  delicto,  they  are  actions 
of  trover   and   conversion ;    for  negligence,   in   riding  horses, 

(a)  Co.  Lit.  144,  b. 

{b)  4  Maule  &  Sel.  113,  and  see  6  Moore,  335.  3  Brod.  &  Bing.  130,  S.  C,  where  the 
annuity  was  created  by  grant.     See  also  M'Clel.  495. 

(c)  This  and  some  other  of  the  wrongs  here  mentioned,  as  affecting  persons,  may  and  do 
frequently  &^QQ,i  personal  property.  And,  on  the  other  hand,  some  of  the  wrongs  hereafter 
referred  to,  as  A^Qciing personal  property,  may  and  do  sometimes  affect  persons,  as  negli- 
gence in  riding  horses,  and  driving  carriages,  &c. 

(d)  In  the  former  editions  of  this  work,  actions  for  criminal  conversation,  debauching 
daughters,  and  beating  or  imprisoning  wives  or  servants,  jtier  giiod  consortium  vel  serviiium 
amisit,  were  classed  under  the  head  of  actions  on  the  case ;  and  in  principle  they  seem  to  be 
so,  for  the  following  reasons  :  First,  that  the  wrongs  complained  of  therein  are  not  imme- 
diate, but  consequential  :  Secondly,  that  the  plaintiff  may  declare  for  them  by  bill,  with  a 
quod  cum,  which  is  not  allowed  in  trespass:  2  Salk.  636.  1  Str.  621.  Thirdly,  that  in  these 
actions,  the  plea  of  the  statute  of  limitations  is  not  guilty  within  six  years  ;  2  Wils.  85.  2 
Bur.  753.  2  Ken.  371.  Bui.  Ni.  Pri.  28,  S.  C.  6  East,  387,  S.  P/semb.,  and  not,  as  in 
trespass  and  assault,  within /owr  years;  2  Salk.  420.  And  lastly,  that  though  the  plaintiff 
should  not  recover /or/'y  shillings  damages,  he  is  nevertheless  entitled  to  full  costs.  1  Salk.  206. 
2  Ld.  Raym.  831,  S.  C.  3  Wils.  319.  2  Blac.  Rep.  854,  S.  C;  and  see  2  Durnf.  &  East,  167. 
5Durnf  &East,361.  5  East,  45.  6  East,  251,  387.  4  Dowl.  &Ryl.  215.  But  as  these  actions,  in 
point  of  form,  are  laid,  vi  et  armis  and  contra  pacem,  it  has  been  determined,  that  they  are  to 
be  considered  as  actions  of  trespass  :  2  New  Rep.  C.  P.  476.  And,  accordingly,  it  is  holdea 
that  a  count  may  be  joined  therein  for  breaking  and  entering  the  plaintiff's  house,  or  other 
trespass,  vi  et  armis:  Id.  Ibid.,  2  Maule  &  Sel.  436.  3  Campb.  526,  n.  S.  C. ;  and  see  Cro. 
Jac.  501  ;  in  like  manner  as  trespass  and  rescue  may  be  joined,  2  Lutw.  1249.    1  Ld.  Raym. 


OF  ACTIONS,  ETC.  5 

driving  carriages,  navigating  vessels,  or  performing  works ;  against 
sheriffs  and  other  officers,  for  escapes,  false  returns,  or  taking  insufficient 
pledges,  &c. :  for  excesses  or  irregular  distresses,  pound  breach  and  rescue 
of  distresses  for  rent  or  damage  feasant ;  rescue  of  prisoners  ;  unlawfully 
exercising  trades,  or  infringing  patents,  copyrights,  &c. ;  false  and  deceit- 
ful representations  ;  or  on  the  statute  7  &  8  Geo.  IV,  c.  31,  &c. :  or  quasi 
ex  contractu,,  for  deceit  on  the  sale  of  cattle  or  goods,  or  immoderate  use 
of  them,  when  lent  or  let  to  hire  ;  and  against  innkeepers,  carriers,  by 
land  or  by  water,  wharfingers,  farriers,  &c.  To  real  property  corporeal, 
ex  delicto,  they  are  for  nuisances  of  a  private  nature,  to  houses,  lands,  &c., 
to  the  prejudice  of  the  plaintiff's  possession  or  reversion  ;  or  on  the  statute 
7  &  8  Geo.  IV.,  c.  31,  &c. :  or  quasi  ex  contractu,  against  tenants,  in 
nature  of  Avaste  ;  for  not  repairing  fences,  or  for  not  carrying  away  tithes, 
&c.  And  to  real  property  incorporeal,  ex  delicto,  they  are  for  disturbance 
of  common  of  pasture,  &c.,  ways,  offices,  franchises,  tolls,  ferries,  and  seats 
in  churches. 

Detinue  lies  upon  a  purchase,  bailment,  or  finding,  for  the  recovery  of 
goods  in  specie,  or  damages  for  detaining  them.  And  in  this  action,  when 
the  goods  are  alleged  to  have  come  to  the  defendant  by  finding,  it  is  suffi- 
cient for  the  plaintiff  to  prove  that  they  came  to  him  by  wrong ;  at  least, 
unless  the  finding  be  traversed. (a)  Replevin  lies  to  recover  damages  for 
an  immediate  wrong,  without  force,  in  taking  and  detaining  cattle  or 
goods,  under  a  distress  for  rent,  or  damage  feasant,  &c.  ;  and  answers  to 
the  action  of  trespass  de  bonis  asportatis.  It  seems,  that  a  writ  of  replevin 
may  be  properly  brought,  not  merely  where  there  has  been  a  distress,  as 
is  generally  imagined,  but  in  all  cases  where  a  person  takes  goods  out  of 
the  possession  of  the  party  who  applies  for  the  writ,  upon  his  giving  secu- 
rity, until  it  shall  appear  whether  the  goods  are  rightfully  taken  ;[a]  but  if  A. 

83  ;  though  the  consequences  of  a  rescue  seem  to  be  properly  the  subject  of  an  action  on 
the  case. 

(a)  1  New  Rep.  C.  P.  140. 

[a]  "  In  an  action  of  replevin,  the  plaintiff  may  recover  the  specific  chattels  of  which  he 
has  been  unlawfully  disposesscd,  and  not  merely  damages,  as  in  trespass  or  trover.  It  is 
now  the  settled  doctrine  in  England,  that  replevin  lies  in  all  cases  where  the  goods  have 
been  taken  out  of  the  actual  possession  of  the  owner,  and  in  Pennsylvania,  it  lies  in  all  cases 
where  one  man  claims  goods  in  the  possession  of  another,  without  regard  to  the  manner  in 
which  the  possession  was  obtained.  And  as  the  doctrine  of  market  overt  does  not  obtain  in 
this  State,  the  plaintiff  may  follow  his  property  through  successive  transfers,  and  replevin 
it  in  whose  possession  soever  he  maj-  find  it.  The  action  is  usually  grounded  on  a  tortious 
taking,  but,  if  the  detention  only  is  unlawful,  replevin  lies.  It  sounds  in  damages  like  an 
action  of  trespass,  to  which  it  is  extremely  analogous,  if  the  sheriff  has  made  a  return,  and 
the  plaintiff  goes  only  for  damages.  It  may  be  resorted  to  at  any  time  within  six  years 
after  the  cause  of  action  has  accrued,  but  not  afterwards. 

It  is  not  in  this  state  a  proceeding  altogether  in  rem,  but  is  against  the  defendant  in  the 
writ  personally,  with  a  summons  to  appear;  and  it  is  a  mistake  to  suppose  that,  because  the 
defendant's  conduct  prevents  the  replevying  and  delivering  of  the  property  to  the  plaintiff", 
a  recovery  cannot  therefore  be  had  by  him,  for  the  value  of  the  property  so  eloigned. 

Though  this  action,  like  all  personal  actions  at  common  law  abated  by  the  death  of  the 
plaintiff,  yet  it  did  not  die  with  the  person  ;  the  executor  might  bring  a  new  one.  The  act 
of  13th  Ai)ril,  1791,  in  Pennsylvania,  enaldcd  the  representative,  (where  the  action  by  law 
survived)  if  the  plaintiff  should  die  before  final  judgment,  to  prosecute  the  action  ;  so  that 
it  does  not  abate;  and  to  compel  the  defendant  to  appear,  the  plaintiff  may  make  himself 
party  by  substitution,  without  citation,  and  he  may  compel  the  defendant  by  scire  facias  to 
defend.  So  the  defendant  can,  by  scire  facias,  compel  the  representative  of  a  deceased 
plaintiff  to  appear,  for  this  action  survives  the  death  of  the  plaintiff.  Nor  does  the  action 
abate  by  the  death  of  the  defendant  whilst  the  action  is  pending,  though  it  is  held  other- 
wise in  England  and  Massachusetts,  where  it  is  founded  on  tort,  and  does  not  survive 


5  OF  ACTIONS,  ETC. 

be  in  possession  of  fjooils,  in  which  B.  cLiims  a  property,  replevin  is  not 
the  proper  writ  to  try  that  right. ((';)  Trespass  vi  et  armis  lies  to  recover 
damages  for  immediate  Avrongs,  accompanied  with  force;  to  the^J»ersow,  by 
menaces,  assault,  battery,  wounding,  mayhem,  or  false  imprisonment ;  to 
real  property,  as  houses,  lands,  fisheries,  or  watercourses ;  and  to  jyei^sonal 
property  by  destroying,  damaging,  taking  away,  detaining,  or  converting 

cattle  or  goods. 
[    *6     ]     *Upon  contracts,  the  action  should  be  brought  by  the  party 

with  whom  the  contract  was  made,  if  living ;  or,  if  dead,  by  his 
executors  or  administrators :  And  it  should  be  brought  against  the  party 
who  made  the  contract,  or,  if  he  be  dead,  against  his  executors  or  admin- 
istrators ;(rt)  or,  upon  a  bond,  against  his  heirs  and  devisees.  Where  there 
are  several  parties  to  a  contract,  the  action  should  be  brought  by  or  against 
all  of  them,  if  living  :{h)  or,  if  some  are  dead,  by  or  against  the  survivors  :(c) 
And  an  action  may  be  brought  by  or  against  a  surviving  partner,  for  his 
own  debt,  as  well  as  for  that  which  was  contracted  in  the  life-time  of  the 
deceased. ((f)  If  an  action  be  brought  upon  a  joint  contract,  hy  one  of 
several  partners,(c)  or  assignees  of  a  bankrupt,(/)  the  plaintiff  will  be  non- 

{b)  1  Scho.  &  Lef.  320,  21,  n.  327,  and  see  2  Stark.  Ni.  Pri.  288,  where,  in  an  action  of 
trover  for  books  of  account,  Lord  Elhnhorough  intimated,  that  the  bringing  an  action  of  trover 
was  not  the  most  convenient  remedy  in  a  case  of  this  nature  ;  and  said,  that  he  liad  heard 
Mr.  Wallace  express  his  surprise,  that  the  remedy  by  replevin  was  not  more  frequently 
resorted  to,  by  means  of  which  the  party  might  obtain  possession  of  the  specific  chattel  of 
which  he  had  been  deprived,  instead  of  an  action  of  trover,  in  which  he  would  recover  dama- 
ges only.[l] 

(a)   I  Wms.  Saund.  5  Ed,  216,  a.  (1). 

[h)  Id.  291,  b.  (4)  and  see  4.  Barn.  &  Aid.  437.  6  Moore,  322.  3  Barn.  &  Cres.  353.  5 
Dowl.  &  Ryl.  152.  S.  G.   7  Dowl.  &  Ryl.  144. 

(c)  2  Wms.  Saund.  5  Ed.  121,  c.  (1). 

{d)  Golding  v.  Vaunhan,  E.  22  Geo.  III.  K.  B.  2  Chit.  Rep.  436,  S.  C.  5  Durnf.  &  East, 
493,  1  ETsp.  Rep.  47,  S.  C.  6  Durnf  &  East,  582. 

(e)  2  Str.  820.     1  Wms.  Saund.  5  Ed.  291,  5-. 

(/)  1  Chit.  Rep.  71.  2  Stark.  Ni.  Pri.  424.  S.  C. 

[1]  In  England,  however,  the  action  of  replevin  can  only  be  maintained  where  goods  are 
tortiously  taken,  and  not  where  they  are  delivered  upon  a  contract.  4  Bingham,  299.  In 
Pennsylvania,  this  form  of  action  is  extensively  used  to  try  c^uestions  of  property  in  chattels, 
and  for  the  want  of  a  court  of  chancery,  is  adopted  as  the  vehicle  of  equitable  claims  and 
rights.  See  the  note  of  the  editor  to  the  last  edition  of  Stephen  on  Plead.  Apj).  No.  2.  note  I. 
See  also  3  Wharton,  369.  In  the  state  of  New  York,  the  action  of  replevin  is  grounded  on 
a  tortious  or  unlawful  taking,  whether  taken  under  pretence  of  a  distress  or  not.  10  Johns. 
Rep.  369  ;  7 /c?.  140  ;  Hid.  116.  It  does  not  lie,  in  that  state,  when  the  original  taking  was 
justifiable.  14  Id.  84  ;  15  Id.  401.  So,  in  the  state  of  North  Carolina,  2  Taylor,  98.  In  the 
state  of  Massachusetts,  replevin  lies  for  goods  wrongfully  detained,  though  the  original  taking 
was  justifiable,  and  though  the  plaintiff  never  had  jjossesion  of  them,  until  delivered  to  him 
on  the  service  of  the  writ.  15  Mass.  Rep.  359  ;  16  Id.  147  ;  17  Id.  610.  In  the  state  of 
Maryland,  as  in  Pennsylvania,  it  appears  to  lie  wherever  one  man  claims  goods  in  the  pos- 
session of  another.  1  Har.  &  Johns.  147.  In  the  state  of  South  Carolina,  it  appears  to  be 
unsettled  whether  replevin  will  lie  in  any  other  case  than  of  a  distress  for  rent.  1  Rep.  Con. 
Ct.  401.  In  Illinois,  to  maintain  this  action,  there  must  be  an  unlawful  taking  from  the 
actual  or  constructive  possession  of  the  plaintiff.     1  Breese,  130. 

against  the  executor  or  administrator.  In  our  practice,  it  is  an  action  which  is  much 
resorted  to,  and  has  undergone  material  change.  It  possesses  many  advantages  over  any 
other  form  of  action,  and  the  inclination  of  the  courts  is  to  make  it  as  complete  as  possible. 
To  expose  the  plaintiff  to  the  loss  of  his  remedy  by  the  death  of  the  defendant,  would  be  in 
some  cases  to  destroy  his  chance  of  justice  ;  for  unless  the  property  remained  in  specie  in 
the  hands  of  the  executor,  he  would  be  remediless,  the  reason  of  the  rnle,  that  personal 
actions  die  with  the  person,  does  not  apply  to  cases  involving  a  right  of  property.  Where 
one  receives  the  property  of  another,  his  estate  should  answer  it;  for  that  swells  the  assets 
in  the  hands  of  the  representatives.  The  exception  to  this  rule  will  not  be  extended  beyond 
the  case  of  trover,  which  has  been  held  to  abate  by  the  defendant's  death."  2  Trou.  &  Hal. 
Pr.  161,  3d  Edition.     Morris  on  Replevin,  Ch.  1,  p.  17  ;  Ch.  2,  p.  87. 


OF  ACTIONS,  ETC.  6 

suited,  or  have  a  verdict  against  liirn :  But  if  one  of  several  plaintiffs  be 
mis-named,  this  is  the  subject  of  a  plea  in  abatement,  and  not  in  bar:(^) 
And  if  an  action  be  brought  against  one  of  several  partners,  or  assignees, 
he  can  only  plead  in  abatement ;  though  the  plaintiff  knew,  and  even 
contracted  "with  the  other  partners. (Zi)  In  assumpsit,  by  one  of  two  sur- 
viving partners,  the  fact  of  the  plaintiff's  being  a  surviving  partner,  must 
be  stated  in  the  declaration ;  and,  therefore,  a  count  for  goods  sold  by  the 
plaintiff  to  the  defendant,  is  not  supported  by  proof  that  the  goods  were 
sold  by  the  plaintiff  and  his  deceased  partner :(/)  But  under  a  declaration 
containing  only  one  set  of  counts,  charging  the  defendant  in  his  own 
right,  the  plaintiff  may  recover  one  demand  due  from  the  defendant  indi- 
vidually, and  another  due  from  him  as  surviving  partner.(/c)  It  is  also  a 
rule,  that,  as  a  man  cannot  sue  himself,  an  action  cannot  be  maintained 
by  several  plaintiffs,  on  a  joint  contract,  where  one  or  more  of  them  are 
liable,  with  the  defendants,  to  the  performance  of  it,(Z)  A  contract,  being 
a  chose  in  action,  was  not  assignable  at  common  law,  so  as  to  entitle  the 
assignee  to  an  action  in  his  own  name:(wi)  but  there  was  an  exception  to 
this  rule,  in  the  case  of  foreign  bills  of  exchange,  upon  Avhich  an  action 
might  have  been  maintained,  in  the  name  of  the  indorsee :  And  the  same 
doctrine  was  afterwards  applied  to  inland  bills  ;(w)  and  extended  to  pro- 
missory notes,  by  the  statute  3  &  4  Anne,  c.  0 :  and,  by  other  acts  of 
parliament,  actions  may  be  maintained  by  the  assignee  of  the  reversion, 
or  against  the  assignee  of  a  lease,  where  the  covenants  run  with  the 
land;(c)  *or  by  the  assignees  of  a  bail,(a)  or  replevin, (J)  bond;  [  *7  ] 
or  of  the  effects  of  a  bankrupt,  {c)  or  insolvent  debtor  :{d)  But 
a  trustee  under  the  Scotch  bankrupt  act,  (54  Geo.  III.  c.  137,)  cannot  sue, 
for  a  chose  in  action,  in  his  own  name  ;{e)  and  upon  the  contract  of  a 
bankrupt,  or  insolvent  debtor,  an  action  does  not  lie  against  his  assignees. 
By  statute  54  Geo.  III.  c.  170,  §  8,  "all  securities  given  or  received 
or  indemnifying  any  district,  parish,  township,  or  hamlet,  for  the  main- 
tenance of  any  bastard  child  or  children  respectively,  or  any  expenses 
in  any  way  occasioned  by  such  district,  &c.,  by  reason  of  the  birth  or 
support  of  any  bastard  child  or  children  born  within  such  district,  &;c., 
or  chargeable  thereunto,  are  declared  to  be  vested  in  the  overseers  of  the 
poor  of  such  district,  &c.  for  the  time  being ;  who  are  authorized  to  sue 
for  the  same,  as  and  by  their  description  of  overseers,  of  such  district,  &c. : 
And  such  action,  so  commenced  by  such  overseers,  shall  in  no  wise  abate, 
by  reason  of  any  change  of  overseers  of  such  district,  &c.  pending  the 

(g)  G  Maulc  &  Scl.  45. 

(A)  2  Atk.  510.  5  Bur.  2611.  2  Blac.  Rep.  947.  5  Dumf.  &  East,  G49.  1  Wms.  Saund.  5 
Ed.  291,  c.  d. 

(t)  4  Barn.  &  Aid.  374,  and  see  6  Moore,  332 ;  but  see  id.  579. 

\k)  1.  Barn.  &.  Aid.  29,  and  see  7  Moore,  158.  3  Brod.  &  Bing.  302,  S.  C. 

(l)  2  Bos.  k  Pul.  120,  124.  (r).  G  Taunt.  597.  2  Marsh.  319.  S.  C.  G  Moore,  334.  7  Barn. 
&  Ores.  419.   1  Man.  &  Ryl.  238,  S.  C. 

(m)  For  the  doctrine  as  to  the  assignment  of  choses  in  action,  sec  Chitty  on  bills,  p.  7,  &c. 

(n)  /(/.  11. 

(o)  Stat.  32  Hen.  VIII.  c.  34.  (a)  Stat.  4  &  5  Ann.  c.  IG,  I  20. 

(b)  Stat.  11  Geo.  II.  c.  19  §  23. 

(c)  Stat.  1.  Jac.  I.  c.  15,  §  13.  5  Geo.  II.  c.  30,  ?  2.  G  Geo.  IV.  c.  16,  ?  63.  And  see  stat.  3 
Geo.  IV.  c.  81,  I  11,  6  Geo.  IV.  c.  IG,  ji  89,  authorizing  the  assignees  of  one  or  more  mem- 
bers of  a  firm,  to  use  the  names  of  partners  in  suits ;  indemaifyiug  thera  against  the  payment 
of  costs. 

(d)  Stat.  54  Geo.  III.  c.  28,  ?  17.     7  Geo.  IV.  c.  57,  2  24. 
(c)  6  Maule  &  Sel.  126. 


7  OF  ACTIONS,  ETC. 

same;  but  shall  be  proceeded  in  by  sucb  overseers  for  the  time  being,  as 
if  no  such  change  had  taken  place."  On  this  statute  it  has  been  holden, 
that  an  action  on  a  bond,  to  indemnify  a  parish  against  the  expenses  of  a 
bastard  child,  must  be  brought  in  the  names  of  the  overseers  for  the  time 
being,  and  not  of  those  to  whom  the  bond  was  given. (/)  Also,  by 
statute  59  Geo.  III.  c.  12,  §  17,  "  in  all  actions,  suits,  indictments,  and 
other  proceedings,  for  or  in  relation  to  any  buildings,  lands,  or  heredita- 
ments, purchased,  hired,  or  taken  on  lease,  by  the  churchwardens  and 
overseers  of  the  poor  of  any  parish,  by  the  authority  and  for  any  of  the 
purposes  of  that  act,  or  for  the  rent  thereof,  or  for  or  in  relation  to  any 
other  buildings,  &c.  belonging  to  such  parish,  or  the  rent  thereof;  and  in 
all  actions  and  proceedings  upon  or  in  relation  to  any  bond,  to  be  given 
for  the  faithful  execution  of  the  ofSce  of  an  assistant  overseer,  it  shall  be 
sufficient  to  name  the  churchwardens  and  orerseers  of  the  poor  for  the 
time  being,  describing  them  as  the  churchwardens  and  overseers  of  the 
poor  of  the  parish  for  which  they  shall  act,  and  naming  such  parish ;  and 
no  action  or  suit,  &c.  shall  cease,  abate,  or  be  discontinued,  quashed, 
defeated,  or  impeded,  by  the  death  of  the  churchwardens  and  overseers 
named  in  such  proceeding,  or  any  of  them,  or  by  their  removal  from,  or 
the  expiration  of  their  respective  offices."  On  this  statute,  where  a 
declaration  in  ejectment^  by  churchwardens  and  overseers,  contained  two 

sets  of  counts,    one   describing   them   by  their  office,  without 
[  *8  ]      their  names,  and  the  other  by  *  their  names,  without  their  office, 

the  court  held,   after  verdict,  that  the  objection,  if  any,  was 
cured.  («) 

In  the  case  of  friendly  societies,{b)  the  trustees  of  the  institution  for 
the  time  being  are  authorized,  by  the  statutes  33  Geo.  III.  c.  45,  §  11, 
and  59  Geo.  III.  c.  128,  §  7,  "to  bring  and  defend,  or  cause  to  be  brought 
or  defended,  any  action,  suit,  or  prosecution,  criminal  as  well  as  civil,  in 
law  or  equity,  touching  or  concerning  the  property,  right  or  claim,  of  or 
belonging  to,  or  had  by  such  institution ;  and  such  person  or  persons  so 
appointed  shall  and  may,  in  all  cases  concerning  the  property,  right  or 
claim  aforesaid,  of  such  institution,  sue  and  be  sued,  plead  and  be 
impleaded,  in  his,  her  or  their  proper  name  or  names,  as  trustee  or 
trustees  of  such  institution,  without  other  description :  And  no  such  suit, 
&c.  shall  be  discontinued  or  abate,  by  the  death  of  such  person  or  persons, 
or  his  or  their  removal  from  the  office  of  trustee  or  trustees ;  but  the  same 
shall  and  may  be  proceeded  in,  by  the  succeeding  trustee  or  trustees,  in 
the  proper  name  or  names  of  the  person  or  persons  commencing  the  same : 
And  such  succeeding  trustee  or  trustees  shall  pay  or  receive  like  costs,  as 
if  the  action  or  suit  had  been  commenced  in  his,  her  or  their  name  or 
names,  for  the  benefit  of,  or  to  be  reimbursed  from,  the  funds  of  such 
institution."  In  an  action  of  debt,  on  bond  given  to  the  plaintiff  as 
treasurer  of  a  friendly  society,  the  defendant  pleaded,  that  the  rules  of, 
the  society  had  not  been  confirmed  at  the  quarter-sessions  pursuant  to 
33  Geo.  III.  c.  54 ;  and  the  court  held,  upon  demurrer,  that  the  plea  was 
bad,  the  bond  being  a  good  bond  at  common  law.(c) 

(/)  3  Moore,  21.     8  Taunt.  691,  S.  C.  and  see  6  Dowl.  &  Ryl.  122. 

(a)  2  Dowl.  &  Ryl.  Y08. 

(b)  And  see  stat.  57  Geo.  III.  c.  130,  ^  8,  as  to  bringing  and  defending  actions,  &c.  by  or 
against  trustees  of  Savings  Banks. 

(c)  5  Barn.  &  Aid.  T69.     2  Chit.  Rep.  322.     1  Dowl.  &  Ryl.  393,  S.  C. 


OF  ACTIONS,  ETC.  8 

In  actions  by  or  against  'public  companies,  as  the  West  India,{d) 
London  DocJc,{e)  or  Tnsurance{f)  companies,  &c.,  the  plaintiiFs  or 
defendants  are  frequently  authorized  and  required  to  sue,  or  be  sued,  by 
or  in  the  name  of  their  treasure);  or  clerk :  And,  by  the  general  turii- 
pihe  act,(,^)  "  the  trustees  and  commissioners  of  every  turnpike  road  may 
sue,  and  be  sued,  in  the  name  or  names  of  any  one  such  trusteces  or  commis- 
sioners, or  of  their  clerk  or  clerks  for  the  time  being ;  and  that  no  action 
or  suit  to  be  brought  or  commenced  by  or  against  any  trustees  or  com- 
missioners of  any  turnpike  road,  by  virtue  of  that  or  any  other  act  or  acts 
of  parliament,  in  the  name  or  names  of  any  one  of  such  trustees  or  com- 
missioners, or  their  clerk  or  clerks,  shall  abate  or  be  discontinued,  by 
the  death,  removal  or  act  of  such  trustee,  &c.  without  the  consent  of  the 
said  trustee  or  commissioners,  but  by  any  other  of  such  trustees,  &c.  shall 
always  be  deemed  to  be  the  plaintiff  or  plaintiffs,  defendant  or  defendants, 
(as  the  case  may  be,)  in  every  such  action  or  suit:  Provided  always, 
that  every  such  trustee,  &c.,  shall  be  reimbursed  and  paid  out  *of 
the  moneys  belonging  to  the  turnpike  road  for  which  he  or  they  [  *9  ] 
shall  act,  all  such  costs,  charges,  and  expenses,  as  he  or  they 
shall  be  put  unto,  or  become  chargeable  with  or  liable  to,  by  reason  of  his 
or  their  being  so  made  plaintiff  or  plaintiffs,  defendant  or  defendants." 
In  Ireland,  by  the  statutes  5  Geo.  IV.  c.  73,  and  6  Geo.  IV.  c.  4:2,  §  10, 
societies  or  partnerships,  formed  under  the  authority  of  those  statutes, 
may  sue  and  be  sued,  in  the  name  of  any  one  of  their  public  officers. 
And  by  the  statute  G  Geo.  IV.  c.  131,  joint  stock  societies  or  partner- 
ships in  Scotland  may  sue  and  be  sued,  in  the  name  of  the  firms 
severally  used  by  such  societies  or  partnerships,  or  in  the  name  of  the 
manager,  cashier,  or  principal  officer  of  such  society  or  partnership. 

For  ivrongs,  independently  of  contract,  the  action  must  be  brought  by 
the  party  to  whom  the  injury  is  done,  against  the  party  doing  it.  And 
if  either  of  the  parties  die,  the  action  is  gone ;  for  it  is  a  rule,  that  actio 
personalis  moritur  cum  2)erso7id.[a)[A']     But  there  are  some  exceptions  to 

{d)  39  Geo.  III.  c.  Ixix.  ^  184.  [e)  39  &  40  Geo.  III.  c.  xlvii.  I  150. 

(/)  53  Geo.  III.  c.  ccxvi.  3  Barn.  &  Ores.  178,  and  see  4  Barn.  &  Crcs.  962.  7  Dowl. 
&  Ryl.  376.  S.  C. 

{g)  3  Geo.  IV.  c.  126,  §  74. 

(a)  1  Wms.  Saund.  5  Ed.  216,  a.  (1). 

[a]  "The  personal  representatives  are,  as  a  general  rule,  entitled  to  sue  on  all  covenants 
broken  in  tlie  life-time  of  the  covenantee ;  as  for  rent  then  due,  or  for  breach  of  covenant 
for  quiet  enjoyment,  or  to  discharge  tlie  land  from  incumbrances.  A  distinction  must, 
however,  ha  remarked  betvreen  a  covenant  running  with  the  land,  and  one  purely  collateral. 
In  the  former  case,  where  the  formal  breach  has  been  in  the  ancestor's  life-time,  but  the 
substantial  damage  has  taken  place  since  his  death,  the  real,  and  not  the  personal  repre- 
sentative is  the  proper  plaintiff;  whereas,  in  the  case  of  a  covenant  not  running  with  the 
land,  and  intended  not  to  be  limited  to  the  life  of  the  covenantee,  as  a  covenant  not  to  fell 
trees,  excepted  from  the  demise,  the  personal  representative  is  alone  entitled  to  sue.  In  a 
recent  case,  Ricketts  v.  }Yeaver,  12  M.  &  W.,  718,  it  was  held,  that  the  executor  of  a  tenant 
for  life  may  recover  for  a  breach  of  a  covenant  to  repair  committed  by  the  lessee  of  the 
testator  in  his  lifetime,  without  averring  a  damage  to  his  personal  estate ;  and,  in  this  case, 
the  rule  was  stated  to  be,  that,  unless  the  particular  covenant  be  one  for  breach  whereof, 
in  the  lifetime  of  the  lessor,  the  heir  alone  can  sue,  the  executor  may  sue,  unless  it  be  a 
mere  personal  contract,  to  which  the  rule  applies,  that  actio  personalis  moritur  cum  persona." 

"The  personal  representative,  moreover,  may  sue,  not  only  for  the  recovery  of  all  debts 
due  to  the  deceased  by  speciality  or  otherwise,  but  on  all  contracts  with  him,  whether 
broken  in  his  life  time  or  subsequently  to  his  death,  of  which  the  breach  occasions  an 
injury  to  the  personal  estate,  and  which  are  neither  limited  to  the  life-time  of  the  deceased, 
nor,  as  in  the  instance  of  a  submission  to  arbitration  containing  no  special  clause  to  the 


9  OF  ACTIONS,  ETC, 

this  rule,  cbieflv  arising  from  an  equitable  construction  of  the  statute  4 
Edw.  III.  c.  7,  bj  which  executors  shall  have  an  action  of  trespass,  for  a 

contrary,  revoked  by  bis  death.  Aa  administrator's  title,  moreover,  relates  back  to  the 
time  of  the  intestate's  death,  so  that  he  may  sue  for  goods  sold  and  delivered  between  the 
death  and  the  taking  out  letters  of  administration. 

"  An  action,  however,  is  not  maintainable  by  an  executor  or  administrator  for  a  breach  of 
promise  of  marriage  made  to  the  deceased,  where  no  special  damage  is  alleged  ;  and,  gener- 
ally, with  respect  to  injuries  affecting  the  life  or  health  of  the  deceased, — such,  for  instance, 
as  arise  out  of  the  unskilfulness  of  a  medical  practitioner,  or  the  negligence  of  an  attorney, 
or  a  coach  proprietor, — the  maxim  as  to  actio  personalis  is  applicable,  unless  some  damage 
done  to  the  personal  estate  of  the  deceased  be  stated  on  the  record.  But,  where  the  breach 
of  a  contract  relating  to  a  person  occasions  a  damage,  not  to  the  person  only,  but  also  to 
the  personal  estate ;  as,  for  example,  if  in  the  case  of  negligent  carriage  or  cure  there  was 
consequential  damage — if  the  testator  had  expended  his  money,  or  had  lost  the  profits  of  a 
business,  or  the  wages  of  labour  for  a  time  ;  or  if  there  were  a  joint  contract  to  carry  both 
the  person  and  the  goods,  and  both  were  injured ;  it  seems  a  true  proposition,  that,  in  these 
cases,  the  executor  might  sue  for  the  breach  of  contract,  and  recover  damages  to  the  extent 
of  the  injury  to  the  personal  estate." 

"  It  is,  however,  to  actions  in  form  ex  delicto^  that  the  rule  actio  personalis  moritur  cum 
persona  is  peculiarly  applicable  ;  indeed,  it  has  been  observed  that  this  maxim  is  not  applied 
in  the  old  authorities  to  cases  of  action  on  contracts,  but  to  those  in  tort  which  are 
founded  on  malfeasance  or  misfeasance  to  the  person  or  property  of  another ;  which  latter 
are  annexed  to  the  person,  and  die  with  the  person,  except  where  the  remedy  is  given  to 
the  personal  representative  by  the  statute  law;  it  being  a  general  rule  that  an  action 
founded  in  tort,  and  in  form  ex  delicto,  was  considered  as  actio  personalis,  and  within  the 
above  maxim." 

"For  a  tort  committed  to  a  persoH,  it  is  clear,  then,  that  at  common  law  no  action  can  be 
maintained  against  the  personal  representatives  of  the  tort-feasor,  nor  does  it  seem  that  the 
recent  Stat.  9  &  10  Vict.  c.  93,  supplies  any  remedy  against  the  executors  or  administra- 
tors of  the  party  who,  hj  his  '  wrongful  act,  neglect,  or  default,'  has  caused  the  death  of 
another;  for  the  first  section  of  this  act  renders  that  person  liable  to  an  action  for  damages, 
'  who  would  have  been  liable  if  death  had  not  ensued,'  in  which  case,  as  already  stated, 
the  personal  representatives  of  the  tort-feasor  would  not  have  been  liable."  Broom's  Legal 
Maxims,  pages  702,  706,  710,  2d  edition. 

But  the  strictness  in  this  maxim  has  been  most  materially  modified  by  recent  legislation, 
in  both  England  and  America. 

The  act  commonly  called  Lord  Campbell's  act,  is  given  below,  together  with  the  acts  of 
several  of  the  states,  of  a  like  character. 

"  A  further  most  important  alteration,  says  Williams  on  Ex'rs.,  p.  674,  4th  Am.  Ed.,  in  this 
part  of  the  law  has  been  effected  by  the  stat.  9  &  10  Vict.  c.  93,  (entitled,  An  Act  for  com- 
pensating the  families  of  persons  killed  by  accidents,)  which,  after  reciting,  that  '  no  action 
at  law  is  now  maintainable  against  a  person  who,  by  his  wrongful  acts,  neglect,  or  default, 
may  have  caused  the  death  of  another  person,  and  it  is  oftentimes  right  and  expedient, 
that  the  -wrong-doer  in  such  case  should  be  answerable  in  damages  for  the  injury  so 
caused  by  him  :'  enacts,  whensoever  the  death  of  a  person  shall  be  caused  by  wrongful 
act,  neglect,  or  default,  and  the  act,  neglect,  or  default  is  such  as  would  (if  death  had  not 
ensued,)  have  entitled  the  party  injured  to  maintain  an  action  and  recover  damages  in 
respect  thereof,  then,  and  in  every  such  case,  the  person  who  would  have  been  liable  if 
death  had  not  ensued,  shall  be  liable  to  an  action  for  damages,  notwithstanding  the  death 
of  the  person  injured,  and  although  the  death  shall  have  been  caused  under  such  circum- 
stances as  amount  in  law  to  felony." 

IL  "  Every  such  action  shall  be  for  the  benefit  of  the  wife,  husband,  parent,  and  child, 
of  the  person  whose  death  shall  have  been  so  caused,  and  shall  be  brought  by  and  in  the 
name  of  the  executor  or  administrator  of  the  person  deceased ;  and  in  every  such  action, 
the  jury  may  give  such  damages  as  they  may  think  proportioned  to  the  injury  resulting 
from  such  death  to  the  parties  respectively,  for  whom  and  for  whose  benefit  such  action  shall 
be  brought;  and  the  amount  so  received,  after  deducting  the  costs  not  recovered  from  the 
defendant,  shall  be  divided  amongst  the  before-mentioned  parties,  in  such  shares  as  the 
jury  by  their  verdict  shall  find  and  direct." 

in.  "  Not  more  than  one  action  shall  lie  for  and  in  respect  of  the  same  subject-matter  of 
complaint ;  and  every  such  action  shall  be  commenced  within  twelve  calendar  months  after 
the  death  of  such  deceased  person." 

IV.  "  In  every  such  action,  the  plaintiff  on  the  record  shall  be  required,  together  with 
the  declaration,  to  deliver  to  the  defendant  or  his  attorney,  a  full  particular  of  the  person 
or  persons  for  whom  and  on  whose  behalf  such  action  shall  be  brought,  and  of  the  nature 
of  the  claim  in  respect  of  which,  damages  shall  be  sought  to  be  recovered." 

V.  "The  following  words  and  expressions  are  intended  to  have  the  meanings  hereby 


OF  ACTIONS,  ETC.  9 

■UTong  done  to  their  tcstator.(J)  [1]  Where  several  parties  are  jointly 
concerned  in  interest,  or  have  suflfered  a  joint  injury (c),  they  may  and 

(b)  2  Hac.  Abr.  444,  5,  and  see  Cowp.  375.     1  Wms.  Saund.  5  Ed.  217.     4  Moore,  532. 
2  Brod.  Si  Bing.  102,  S.  C. 

(c)  2  Wms.  tiaund.  5  Ed.  115.    1  Veut.  167.    2  Lev.  27,  S.  C.    1  Ld.  Rayra.  127.    2  "Wils. 
414.     2  Wms.  Sauud.  5  Ed.  116,  (2). 

[1]  And  now,  l)y  the  law  amendment  act,  3  &  4  W.  IV.  c.  42,  g  2,  and  see  3  Rep.  C.  L. 
Com.  17,  74,  reciting  that  there  is  no  remedy  provided  by  law  for  injuries  to  the  real  estate 
of  any  person  deceased,  committed  in  his  life  time  ;  nor  for  certain  wrongs  done  by  a  per- 
son deceased  in  his  life  time  to  another,  in  respect  of  his  property,  real  or  personal ;  it  is 
enacted,  that  "an  action  of  trespass,  or  trespass  on  the  case,  as  the  case  may  be,  may  be 
maintained,  by  the  executors  or  administrators  of  any  person  deceased,  for  any  injury  to 
the  real  estate  of  such  person,  committed  in  his  life  time,  for  which  an  action  might  have 
been  maintained  by  such  person,  so  as  such  injury  shall  have  been  committed  within  stx 
calendar  months  before  the  death  of  such  deceased  person  ;  and  provided  such  action  shall 
be  brought  within  o?ie  year  after  the  death  of  such  person  ;  and  the  damages,  when  reco- 
vered, shall  be  part  of  the  personal  estate  of  such  i)erson :  And  further,  that  an  action  of 
ircsjiass,  or  trespass  on  the  case,  as  the  case  may  be,  may  be  maintained  against  the  execu- 
tors or  administrators  of  any  person  deceased,  for  any  wrong  committed  by  him  in  his  life 
time  to  another,  in  respect  of  his  property,  real  or  personal,  so  as  such  injury  shall  have 
been  committed  within  six  calendar  months  before  such  person's  death,  and  so  as  such 
action  shall  be  brought  within  six  calendar  months  after  such  executors  or  administrators 
shall  have  taken  npon  themselves  the  administration  of  the  estate  and  ellects  of  such  per- 
son ;  and  the  damages  to  be  recovered  in  such  action  shall  be  payable  in  like  order  of  ad- 
ministration, as  the  simple  contract  debts  of  such  jierson."  But  if  an  action  be  brought 
by  a  termor,  upon  7  &  8  Geo.  IV.  c.  31,  for  an  injury  done  to  his  house,  within  three  calendar 
months  from  the  ofi'euce  committed,  and  that  action  abates  by  the  death  of  the  termor,  after 
the  three  months  have  expired,  his  executor  cannot  bring  a  fresh  action  :  Till-Adam  {or 
Adam)  v.  Inhabitants  of  Bristol,  4  Nev.  &  iM.  144.  2  Ad.  &  E.  380,  S.  C.  And  it  is  doubt- 
ful, whether  an  executor  of  a  termor  can  in  any  case  bring  an  action  npon  the  7  &  8  Geo. 
IV.  c.  31,  for  any  injury  sustained  in  the  life  time  of  his  testator.  By  the  statute  II  Geo. 
IV.  &  1  W^.  IV.  c.  47,  for  consolidating  and  amending  the  laws  for  facilitating  the  i)ayment 
of  debts  out  of  real  estate,  (Sir  Edward  Sui/den's  act,)  "all  wills  and  testamentary  limita- 
tions, dispositions,  or  appointments,  made  by  any  person  or  persons,  of  or  concerning  any 
manors,  messuages,  lands,  &c.,  whereof  any  person  or  persons,  at  the  time  of  his,  her  or 
their  decease,  shall  be  seised  in  fee  simple,  in  possession,  reversion,  or  remainder,  or  have 
power  to  dispose  of  the  same  by  his,  her  or  their  last  wills  or  testaments,  shall  be  deemed 
or  taken  (only  as  against  such  person  or  persons,  with  whom  the  person  or  persons  making 
such  wills,  &c.,  shall  have  entered  into  any  bond,  covenant,  or  other  specialty,  binding  his, 
her  or  their  heirs,)  to  be  fraudulent,  and  clearly,  absolutely,  and  utterly  void,  frustrate,  and 
of  none  cfiect:"  §  2,  and  see  stat.  3  W.  &  M.  c.  14.  §  2,  made  perpetual  by  G  &  7  W.  III. 
c.  14.  These  statutes,  however,  are  repealed  by  11  Geo.  IV.  &  1  W.  IV.  c.  47,  §  1.  And 
for  enabling  such  creditors  to  recover  upon  such  bonds,  covenants,  and  other  specialties,  it 
is  thereby  enacted,  that  "in  the  cases  before  mentioned,  every  such  creditor  shall  and  may 
have  and  maintain  his,  her  and  their  action  and  actions  of  debt  or  covenant,  upon  the  said 
bonds,  covenants,  and  specialties,  against  the  heir  and  heirs  at  law  of  such  obligor  or  obli- 
gors, covenantor  or  covenantors,  and  such  devisee  and  devisees,  or  the  devisee  or  devisees  of 
such  first  mentioned  devisee  or  devisees  jointly,  by  virtue  of  that  act ;  and  such  devisee  and 
devisees  shall  be  liable  and  chargeable  for  a  false  plea  by  him  or  them  pleaded,  in  the  same 
manner  as  any  heir  should  have  been,  for  any  false  plea  by  him  pleadetl,  or  lor  not  confess- 
ing the  lands  or  tenements  to  him  descended:  Stat.  11  Geo.  IV.  &  1  W.  IV.  c.  47,  §  3,  and 
see  Stat.  3  W.  &  M.  c.  14,  §  3.  And  if  in  any  case  there  shall  not  be  any  heir  at  law,  against 
whom,  jointly  with  the  devisee  or  devisees,  a  remedy  is  thereby  given,  in  every  such  case, 
every  creditor,  to  whom  by  that  act  relief  is  so  given,  shall  and  m:iy  have  and  maintain  his 
and  their  action  and  actions  of  debt  or  corcnant,  as  the  case  may  be,  against  such  devisee  or 
devisees  solely;  and  such  devisee  or  devisees  shall  be  liable  for  false  plea  as  aforesaid." 
Stat.  11  Geo.  IV.  &  1  W.  IV.  c.  47,  \  4. 

assigned  to  them  respectively  so  far  as  such  meanings  are  not  excluded  by  the  context  or 
by  t  he  nature  of  the  subject-matter :  that  is  to  say,  words  denoting  the  singular  number 
are  to  be  understood  to  apply  also  to  a  plurality  of  persons  or  things  ;  and  words  denoting 
the  masculine  gender,  are  to  be  understood  to  apply  also  to  persons  of  the  feminine  gender; 
and  the  word  '  person' shall  aj)ply  to  bodies  politic  and  corporate;  and  the  word  'parent'  shall 
include  father  and  mother;  and  grand-father  and  grand-mother  ;  and  step-father  and  step- 
mother; and  the  word  'child'  shall  include  son  and  daughter,  and  grand-sou  and  grand- 
daughter, and  step-  son  and  step-daughter." 


9  OF  ACTIONS,  ETC. 

ought  to  join  in  the  same  action ;  and  if  they  do  not,  the  defendant  may 
plead  in  abatement,  but  cannot  othei'wise  take  advantage  of  the  objec- 

NEW    HAMPSHIRE    ACT. 

Sect.  6G.  If  the  life  of  any  person  not  in  the  employment  of  the  corporation,  shall  be 
lost  by  reason  of  the  negligence  or  carelessness  of  the  proprietor  or  proprietors  of  any  rail- 
road, or  by  the  unfitness  or  gross  negligence,  or  by  the  carelessness  of  their  servants  or 
agents  in  this  State,  such  proprietor  or  j)roprietors,  shall  be  liable  to  a  fine  not  exceeding 
five  thousand  dollars,  nor  less  than  five  hundred  dollars,  to  be  recovered  by  indictment, 
to  the  use  of  the  executor  or  administrator  of  the  deceased  person,  for  the  benefit  of  his 
widow  and  heirs,  one  moiety  thereof  to  go  to  the  widow,  and  the  other  to  the  children  of 
the  deceased  ;  but  if  there  shall  be  no  children,  the  whole  shall  go  to  the  widow,  and  if  no 
widow,  to  his  heirs  according  to  the  law  regulating  the  distribution  of  intestate  personal 
estates  among  heirs.  (Laws  of  1850,  chap.  953,  sec.  7.)  New  Hamp.  Comp.  Stat.  364,  Ed. 
1853.  Tit.  Of  Rail  Road  Corporations,  Chapter  150. 

MASSACHUSETTS   ACT. 

An  Act  Concerning  Passenger  Carriers. 

Liability  of  carriers  when  life  of  a  passenger  is  lost  by  reason  of  their  negligence,  &c. 

If  the  life  of  any  person  being  a  passenger  shall  be  lost,  by  reason  of  the  negligence  or 
carelessness  of  the  proprietor  or  proprietors  of  any  railroad,  steamboat,  stage-coach,  or  of 
common  carriers  of  passengers;  or  by  the  unfitness  or  gross  negligence  or  carelessness  of 
their  servants  or  agents  in  this  commonwealth,  such  proprietor  or  proprietors  and  common 
carriers,  shall  be  liable  to  a  fine  not  exceeding  five  thousand  dollars  nor  less  that  five  hun- 
dred dollars,  to  be  recovered  by  indictment,  to  the  use  of  the  executor  or  administrator  of 
the  deceased  person,  for  the  benefit  of  his  widow  and  heirs  ;  one  moiety  thereof  to  go  to  the 
widow,  and  the  other  to  the  children  of  the  deceased  ;  but  if  there  shall  be  no  children,  the 
whole  to  the  widow,  and  if  no  widow,  to  the  heirs  according  to  the  law  regulating  the  dis- 
tribution of  intestate  personal  estate  among  heirs.  [March  23,  1840.]  Supp.  to  Rev.  Stat. 
Mass.  vol.  1  p.  HJ5,  Ch.  80,  Ed.  1854. 

VERMONT   ACT. 

Sect.  16.  Whenever  the  death  of  a  person  shall  hereafter  be  caused  by  the  wrongful  act, 
neglect,  or  default  of  any  person,  either  natural  or  artificial,  and  the  act,  neglect,  or  default 
is  such  as  would,  if  death  had  not  ensued,  have  entitled  the  party  injured  to  maintain  an 
action  and  recover  damages  in  respect  thereof,  then,  and  in  every  such  case,  the  person  or 
corporation  who  would  have  been  liable  to  such  action,  if  death  had  not  ensued,  shall 
be  liable  to  an  action  for  damages,  notwithstanding  the  death  of  the  person  injured,  and 
although  the  death  shall  have  been  caused  under  such  circumstances  as  shall  amount  ia 
law  to  a  felony.  (Sect.  1  of  No.  8,  of  1849.) 

Sect.  17.  Every  such  action  shall  be  brought  in  the  name  of  the  personal  representative 
of  such  deceased  person,  and  the  amount  recovered  in  such  action  shall  be  for  the  exclu- 
sive benefit  of  the  widow  and  next  of  kin  of  such  deceased  person,  who  shall  receive  the 
same  proportions  as  provided  by  law  for  the  distribution  of  the  personal  estate  of  persons 
dying  intestate.  (Sect.  2  of  No.  8,  of  1849.) 

Sect.  18.  In  every  such  action  as  hereinbefore  provided,  the  court  or  jury,  before  whom 
such  issue  shall  be  tried,  may  give  such  damages  as  they  may  deem  just  with  reference  to 
the  pecuniary  injury  resulting  from  such  death  to  the  wife  and  next  of  kin  of  such  deceased 
person.  Provided,  that  every  such  action  shall  be  commenced  within  two  years  from  the 
decease  of  such  person.  (Sect.  3  of  No.  8,  of  1849.)  Comp.  Stat,  of  Verm.  p.  342,  tit.  14,  ch. 
51,  ed.  1851. 

NEW   YORK   ACTS. 

An  act  requiring  compensation  for  causing  death  by  wrongful  act,  neglect,  or  default. 
Passed  December  13,  1847.    Chap.  450,  p.  575. 

Sect.  1.  Whenever  the  death  of  a  person  shall  be  caused  by  wrongful  act,  neglect  or 
default,  and  the  act,  neglect  or  default,  is  such  as  would  (if  death  had  not  ensued)  have 
entitled  the  party  injured  to  maintain  an  action  and  recover  damages,  in  respect  thereof, 
then,  and  in  every  such  case,  the  person  who,  or  the  corporation  which  would  have  been 
liable,  if  death  had  not  ensued,  shall  be  liable  to  an  action  for  damages,  notwithstanding 
the  death  of  the  person  injured,  and  although  the  death  shall  have  been  caused  under  such 
circumstances  as  amount  in  law  to  felony. 

Sect.  2.  Every  such  action  shall  be  brought  by  and  in  the  names  of  the  personal  repre- 
sentatives of  such  deceased  person,  and  the  amount  recovered  in  every  such  action  shall 
be  for  the  exclusive  benefit  of  the  widow  and  next  of  kin  of  such  deceased  person,  and  shall 


OF  ACTIOXS,  ETC.  9 

tion.((/j     And,  as  wrongs  arc  of  a  joint  and  several  nature,  tlie  plalntifl' 
may  proceed  against  all,  or  any  of  the  parties  who  committed  them ;  and 

[d)  G  Durnf.  &  East,  7GG.  7  Durnf.  &  East,  279.  5  Kast,  420.  1  Wms.  Saund.  5  Ed. 
291,  k. 

I'e  distributed  to  such  widow  aud  next  of  kin  in  tlie  proportion  provided  bj  law  in  relation 
to  tlie  distribution  of  personal  property  left  by  persons  dying  intestate  ;  and  in  every  such 
action,  the  jury  may  give  such  damages  as  they  shall  deem  a  fair  and  just  compensation, 
not  exceeding  five  thousand  dollars,  with  reference  to  the  i)ecuniary  injuries  resulting  from 
such  death  to  the  wife  and  next  of  kin  of  such  deceased  i)erson,  provided,  that  every  such 
action  shall  be  commenced  within  two  years  after  the  death  of  such  person  ;  but  nothing 
herein  contained  shall  alfcct  any  suit  or  proceeding  heretofore  commenced  and  now  pend- 
ing in  any  of  the  courts  oftliis  state.  (As  amended  by  chap.  256  of  1849.) 
Sect.  3.  This  act  shall  take  elfect  immediately. 

An  Act  to  amend  "An  Act  requiring  compensation  for  causing  death  by  wrongful  act, 
neglect  or  default,"  passed  December  13,  1847.     Passed  April  7,  1849,  Chap.  250,  p.  388. 

[Sect.  1  amends  sect.  2  of  chap.  450  of  1847,supra.^ 

Sect.  2.  Every  agent,  engineer,  conductor,  or  other  person  in  the  employ  of  such  com- 
pany, or  persons  through  whose  wrongful  act,  neglect  or  default,  the  death  of  a  person  shall 
have  been  caused  as  aforesaid,  shall  be  liable  to  be  indicted  therefor,  and  upon  conviction 
tliereof,  may  be  sentenced  to  a  state  prison  for  a  term  not  exceeding  five  years,  or  in  a 
county  jail  not  exceeding  one  year,  or  to  pay  a  fine  not  exceeding  two  hundred  and  fifty 
dollars,  or  both  such  fine  and  imprisonment. 

Sect.  3.  This  act  shall  take  effect  immediately.  Gen.  Stat,  of  N.  Y.,  Blatchford's  edition, 
pages  205,  20G. 

NEW    JERSEY    ACT. 

An  act  to  provide  for  the  recovery  of  damages  in  cases  where  the  death  of  a  person  is 
caused  by  wrongful  act,  neglect,  or  default. 

Sect.  1.  Be  it  enacted  by  the  Senate  and  General  Assembly  of  the  State  of  New  Jersey, 
That  whenever  the  death  of  a  person  shall  be  caused  by  wrongful  act,  neglect,  or  default, 
and  the  act,  neglect,  or  default  is  such  as  would,  if  death  had  not  ensued,  have  entitled  the 
jjarty  injured  to  maintain  an  action  and  recover  damages  in  respect  thereof,  then  and  in 
every  such  case  the  person  who,  or  the  corporation  which,  would  have  been  liable  if  death 
had  not  ensued,  shall  be  liable  to  an  action  for  damages,  notwithstanding  the  death  of  the 
person  injured,  and  although  the  death  shall  have  been  caused  under  such  circumstances 
as  amount  in  law  to  felony. 

Sect.  2.  And  be  it  enacted.  That  every  such  action  shall  be  brought  by  and  in  the  names 
of  the  personal  representatives  of  such  deceased  person  ;  and  the  amount  recovered  in  every 
such  action  shall  bo  for  the  exclusive  benefit  of  the  widow  and  next  of  kin  of  such  deceased 
jierson,  and  shall  be  distributed  to  such  widow  and  next  of  kin  in  the  i)roportions  provided 
by  law  in  relation  to  the  distribution  of  personal  property  left  by  persons  dying  intestate; 
aad  in  every  such  action  the  jury  may  give  such  damages  as  they  shall  deem  fair  and  just, 
with  reference  to  the  pecuniary  injury  resulting  from  such  death  to  the  wife  and  next  of 
kin  of  such  deceased  person ;  provided,  that  every  such  action  shall  be  commenced  within 
twelve  calender  months  after  the  death  of  such  deceased  person. 

Sect.  3.  And  be  it  enacted,  That  on  request  by  the  defendant,  or  the  defendant's  attorney, 
the  jilaintiff  on  the  record  shall  be  required  to  deliver  to  the  defendant,  or  to  the  defcmiaiit's 
attorney,  a  particular  account  in  writing  of  the  nature  of  the  claim  in  respect  to  which 
damages  shall  be  sought  to  be  recovered. 

Sect.  4.  And  be  it  enacted.  That  this  act  shall  take  effect  immediately.  Approved  March 
3,  1848.     P.  L.  151,  Nixon's  Elmer's  N.  J.  Digest,  p.  193,  2d  Ed.  1855. 

PE.VNSYLVANIA   ACTS. 

Sect.  1.  No  action  hereafter  brought  to  recover  damages  for  injuries  to  the  person  by  neg- 
ligence or  default,  shall  abate  by  reason  of  the  death  of  the  i)lainiill";  but  the  personal  repre- 
sentatives of  the  deceased  may  be  substituted  as  plaiutilf,  and  prosecute  the  suit  to  final 
judgment  and  satisfaction. 

Sect.  2.  Whenever  death  shall  be  caused  by  unlawful  violence  or  negligence,  and  no  suit 
for  damages  be  brought  by  the  party  injured  during  his  or  her  life,  the  widow  of  any  such 
deceased,  or  if  there  be  no  widow,  the  jjcrsonal  representatives,  may  maintain  an  action  for, 
and  recover  damages  for  the  death  thus  occasioned.  Act  April  9,  1852.  P.  L.  p.  301. 
Purd.  Dig.  G08,  Ed.  1353. 


Sect.  1.  The  persons  entitled  to  recover  damages  for  any  injury  causing  death,  shall  be 
the  husband,  widow,  children,  or  parents  of  the  deceased,  and  no  other   relative;   aud 


9  OF  ACTIONS,  ETC. 

it  is  no  plea  in  abatement,(e)  or  ground  of  nonsuit,(/)  that  there  are  other 
partners  not  named.  In  bringing  actions,  by  or  against  husband  and 
wife,  the  rule  is,  that  whenever  the  cause  of  action  would  survive  to  or 
a"-ainst  the  wife,  they  ought  in  general  to  sue  or  be  sued  jointly  ;{g)  and 
this  rule  holds  as  well  with  regard  to  contracts  as  wrongs.  But  some- 
times, and  particularly  where  the  cause  of  action  arises  during  coverture, 
the  husband  is  allowed  to  bring  the  action  in  his  own  name,  or  in  the 
joint  names  of  himself  and  his  wife.(7i) 

The  plaintiif  has  in  some  cases  his  election,  to  bring  one  species  of  ac- 
tion or  another  for  the  same  cause ;  as  in  actions  upon  contracts,  he  may 
bring  assumpsit  or  debt  upon  a  simple  contract,  or  debt  or  covenant  upon 

a  specialty,  for  the  non-payment  of  money :  Or,  if  the  breach 
[  *10  ]    of  a  simple  *contract  consists  in  mis-feazance,  he  may  declare 

in  assumpsit,  or  in  case  on  the  special  circumstances  {{a)  as  for 
deceit  on  the  sale  of  cattle  or  goods,  or  immoderate  use  of  them,  when 

(c)  Durnf.  &  East,  649.  2  Chit.  Rep.  1,  and  see  6  Moore,  141.  3  Brod.  &  Bing.  54.  9 
Price,  408,  S.  C.  but  see  2  New  Rep.  C.  P.  365.  6  Durnf.  &  East,  369.  1  Wms.  Saund.  5 
Ed.  291,  e.  semb.  contra. 

(/)  3  East,  62.  6  Moore,  141.  2  Brod.  &  Bing.  54.  9  Price,  408,  S.  C.  and  see  3  Campb. 
29."    1  Bing.  143,  but  see  12  East,  89,  452.     2  Marsh.  485.  semb.  contra. 

(ff)  1  Wils.  224.     2  Wils.  227. 

(A)  For  a  more  particular  account  of  the  parties  to  the  action,  whether  upon  contracts  or 
for  wronffs,  see  1  Wms.  Saund.  5  Ed.  291,  b.  (4).  2  Wms.  Saund.  5  Ed.  116,  (2),  and  1  Chit. 
FL  4  Ed.  Chap.  I. 

(a)  2  Wils.  319.  3  Wils.  348.  1  Durnf.  &  East,  274.  But  where  the  substantial  ground 
of  action  is  contract,  the  plaintiif  cannot,  by  declaring  in  case,  render  a  person  liable,  who 
would  not  have  been  liable  on  his  promise :  Therefore,  where  the  plaintiff  declared  that, 
having  agreed  to  exchange  mares  with  the  defendant,  the  latter,  by  falsely  warranting  his 
mare  to  be  sound,  well  knowing  her  to  be  unsound,  falsely  and  fraudulently  deceived  the 
plaiutitf,  &c. ;  it  was  holden,  that  infancy  was  a  good  plea  in  bar  to  the  action.  2  Marsh.  485. 

the  sum  recovered  shall  go  to  them  in  the  proportion  they  would  take  his  or  her  personal 
estate  in  case  of  intestacy,  and  that  without  liability  to  creditors. 

Sect.  2.  The  declaration  shall  state  who  are  the  parties  entitled  in  such  action ;  the  action 
shall  be  brought  within  one  year  after  the  death,  and  not  thereafter.  Act  April  26,  1855. 
P.  L.  309.     Purd.  Dig.  p.  1138. 

OHIO    ACT. 

An  act  requiring  compensation  for  causing  death  by  wrongful  act,  neglect,  or  default. 
Passed  March  25,  1851. 

Sect.  1.  Damages  recoverable  for  causing  death.  Be  it  enacted,  &c.,  That  whenever  the 
death  of  a  person  shall  be  caused  by  wrongful  act,  neglect,  or  default ;  and  the  act,  neglect 
or  def\iult  is  such  as  would  (if  death  had  not  ensued)  have  entitled  the  party  injured  to 
maintain  an  action  and  recover  damages,  in  respect  thereof;  then,  and  in  every  such  case, 
the  person  who,  or  the  corporation  which,  would  have  been  liable  if  death  had  not  ensued, 
shall  be  liable  to  an  action  for  damages,  notwithstanding  the  death  of  the  person  injured, 
and  although  the  death  shall  have  been  caused  under  such  circumstances  as  amount  iu 
law  to  murder  in  the  first  or  second  degree,  or  manslaughter. 

Sect.  2.  Action  brought  by  personal  representative.  Every  such  action  shall  be  brought 
by,  and  in  the  name  of,  the  personal  representatives  of  such  deceased  persons ;  and  the 
amount  recovered  in  every  such  action,  shall  be  for  the  exclusive  benefit  of  the  widow  and 
next  of  kin  of  such  deceased  person,  and  shall  be  distributed  to  such  widow  and  next  of  kin 
in  the  proportions  provided  by  law  iu  relation  to  the  distribution  of  personal  estates,  left 
by  persons  dying  intestate;  and  in  every  such  action,  the  jury  may  give  such  damages  as 
they  shall  deem  fair  and  just,  not  exceeding  five  thousand  dollars,  -with  reference  to  the 
pecuniary  injury  resulting  from  such  death  to  the  wife  and  next  of  kin  to  such  deceased 
person ;  provided,  that  every  such  action  shall  be  commenced  within  two  years  after  the 
death  of  such  deceased  person.     Curwen's  Laws  of  Ohio  in  Force,  p.  961. 

Consult  Armworth  v.  The  South-Eastern  Raihvay,  11  Jurist,  758.  Blalcc  v.  The  Midland 
Counties  Railway,  15  Jurist,  562  ;  10  Eng.  Law  and  Eq.,  437,  S.  C.  Canning  v.  WiUiamstown, 
1  Gushing,  451.  Pennsylvania  Railroad  Company  v.  3IcCloskey's  Administrators,  11  Harris, 
526  ;  3  Am.  Law  Reg.,  412.    Hodges  on  Railw.  623,  2d  Ed.     Shelford  on  Railw.  503,  3d  Ed. 


OF  ACTIONS,  ETC.  10 

lent  or  let  to  hire;  and  against  attorneys,  carriers,  •\\liarfingers,  inn- 
keepers, &;c.  And  where  cattle  or  goods  are  wrongfully  taken  and  de- 
tained, he  may  bring  tresj^ass  vi  et  armis,  replevin,  trover,  or  detinue; 
or,  if  they  are  converted  into  money,  he  may  waive  the  tort,  and  bring 
assmnpsit  for  money  had  and  received. (?^)  But  the  plaintift",  having  once 
made  his  election,  cannot  afterwards  bring  another  species  of  action  for 
the  same  cause,  either  whilst  the  former  is  depending,  or  after  it  has  been 
determined.  And  it  is  a  rule,  that  the  party  applying  for  an  information 
shall  be  understood  to  have  made  his  election,  and  waived  his  remedy  by 
action,  whatever  may  be  the  fate  of  the  motion  for  the  information,  unless 
the  court  think  fit  to  give  him  leave  to  bring  an  action. (c) 

The  law  is  said  to  abhor  circuittj  of  action  :  and  therefore  if  the  obligee 
of  a  bond  covenant  generally  not  to  sue  upon  it,  this  shall  operate  as  a 
release,  and  may  be  pleaded  in  bar  of  the  action ;  for  if  it  operated  oidy 
as  a  covenant,  it  would  produce  two  actions. ((Z)  So  where,  to  debt  on  bond 
for  200^.,  the  defendant  pleaded,  that  after  the  making  of  the  bond,  the 
plaintiff  by  indenture  covenanted,  that  if  the  defendant  should  at  such  a 
day  pay  100/.,  the  obligation  should  be  void,  and  alleged  that  he  paid  the 
money  at  the  day;  and  upon  demurrer,  it  was  insisted  for  the  plaintiff, 
that  the  indenture,  being  made  after  the  bond,  could  not  be  pleaded  in 
bar ;  but  all  the  court  held,  that  the  defendant  might  well  plead  it  in  bar, 
without  being  put  to  the  action  of  covenant,  by  circuity  of  action. (e) 
But  if  A.  and  B.  are  jointly  and  severally  bound  to  C,  who  covenants 
with  A.  only,  that  he  will  not  sue  him,  this  is  not  construed  to  be  a  re- 
lease, for  there  is  still  a  remedy  on  the  bond  against  B. :(/)  And  so 
where  a  man  becomes  bound  to  another,  who  covenants  not  to  put  the 
bond  in  suit  before  3Iichaehnas,  and  the  obligee  nevertheless  brings  debt 
on  the  bond  before  that  time,  the  defendant  cannot  plead  the  covenant  in 
bar,  but  must  have  recourse  to  an  actioVi  upon  h.{g) 

It  is  a  rule,  that  several  counts  may  be  joined  in  the  same 
declaration,  *for  different  causes,  p)rovided  they  are  of  the  same  [  *11  ] 
nature.{a)  Thus,  in  actions  upon  contract,  the  plaintiff  may  join 
as  many  different  counts  as  he  has  causes  of  action,  in  account,  so  like- 
wise in  assumpsit,  or  in  covenant,  debt,  annuitjj,  or  scire  facias:  And 
there  is  a  case  wdiere  it  was  holden,  that  debt  and  detinue  might  be  joined 
in  the  same  action. (/*)  In  like  manner,  in  actions  for  wrongs  indejicnd- 
ently  of  contract,  the  plaintiff  may  join  as  many  different  counts  as  lie  has 
causes  of  action  in  case,  or  in  detinue,  replevin,  or  trespass  :  And  he  may 
join  trespass  and  battery  of  his  servant,  p)er  quod  servitium  ai7iisit,{c)  or 

(b)  Com.  Dig.  tit.  Action,  M.  And  see  PctcrsdorlT  on  Bail,  40,  41,  as  to  the  expediency  of 
adopting  particular  forms  of  action,  in  order  to  obtain  the  security  of  hail. 

(c)  Rex  V.  Sparrow  and  another,  H.  28  Geo.  III.  K.  B.  And  sec  further,  as  to  the  election 
of  actions.  Com.  Dig.  tit.  Action,  M.  1  Chit.  PI.,  4  Ed.  188. 

(d)  1  Durnf.  &  East,  446. 

(e)  Cro.  Eliz.  623. 

(/)  2  Salk.  575.     1  Ld.  Raym.  690.     12  Mod.  551,  S.  C.     8  Durnf.  &  East,  168. 

((j)  And.  307,  pi.  316.  Cro.  Eliz.  352,  S.  C,  and  see  further,  as  to  circuity  of  action,  2  Wms. 
Saund.  5  Ed.  149.  (2.)     4  Durnf.  &  East,  470. 

(a)  2  Wms.  Saund.  5  Ed.  117,  a. 

(6)  Bro.  Abr.  tit.  Joinder  in  action,  97,  Gilb.  C.  P.  6.  1  Bac.  Abr.  30.  But  trover  and 
detinue  cannot  be  joined.  Willcs,  118.  And  in  order  to  join  debt  and  detinue,  it  seems  they 
must  be  both  founded  on  contract. 

(c)  Cro.  Jac,  501.     Aleyn,  9.     1  Bac.  Abr.  30.  2  New  Rep.  C.  P.  476,  ante,i. 


11  OF  ACTIONS,  ETC. 

trespass  and  rescue,{d)  in  the  same  declaration.  But,  with  the  exceptions 
before  mentioned,  counts  in  action  upon  contract  cannot  be  joined  with 
counts  for  wrongs  independently  of  contract  ;(e)  nor  can  counts  in  anyone 
species  of  these  actions,  be  joined  with  counts  in  another.  In  a  declara- 
tion on  the  case,  one  count  stated,  that  the  plaintiff,  at  the  request  of  the 
defendant,  had  caused  to  be  delivered  to  him  certain  swine,  to  be  taken 
care  of,  for  reward,  by  defendant  for  plaintiff;  and  in  consideration  there- 
of, defendant  undertook  and  agreed  with  plaintiff,  to  take  care  of  said 
swine,  and  re-deliver  the  same  on  request ;  and  the  court  held,  on  motion 
in  arrest  of  judgment,  that  this  was  a  count  in  assumpsit,  and  could  not  be 
joined  with  counts  in  case.{f) 

Wherever  several  counts  may  be  joined  in  the  same  declaration,  for 
different  causes  of  action,  there  is  always  the  same  process  by  original 
writ,  and  in  general  the  same  plea  or  general  issue,  and  the  same  judg- 
ment. And  hence,  rules  have  been  framed,  in  order  to  determine  what 
different  counts  may  or  may  not  be  joined  in  the  same  declaration,  from 
the  similarity  of  the  process,  the  plea,  and  the  judgment.  In  one  case,  it 
was  said  by  Lee,  Ch.  J.  that  the  true  way  to  judge  of  this  matter  is,  that 
whenever  the  process  and  judgment  are  the  same  on  two  counts,  they  may 
be  joined ;  otherwise  they  cannot. (^)  But  it  being  found  that  the  simi- 
larity of  the  process  afforded  but  a  very  fallible  criterion,  there  being  the 
same  process  of  summons,  attachment  and  distress,  in  actions  of  account, 
covenant,  debt,  annuity,  and  detinue,  and  the  same  process  of  attachment 
and  distress  in  actions  of  assumpsit,  case,  and  trespass,  none  of  which  can 
be  joined,  it  was  said  in  a  subsequent  case,  by  Wilmot,  Ch.  J.  that  the 
true  test  to  try  whether  two  counts  can  be  joined  in  the  same  declaration, 
is  to  consider  and  see  whether  there  be  the  same  judgment  on  both ;  and 
if  there  be,  he  thought  they  might  be  well  joined. (A)     But  in  a  later  case, 

the  court  of  Common  Pleas  were  of  opinion,  that  the  rule  or  test 
[  *12  ]  to  try  whether  two  counts  can  be  joined,  as  laid  down  in  the  *for- 

merone,  was  rather  too  large,  and  not  universally  true:(rt)  and  the 
reason  for  this  opinion  probably  was,  that  there  is  the  same  judgment,  for 
damages  and  costs,  in  actions  of  assumpsit,  coveiiant,  case  and  trespass,  and 
the  same  entry  of  a  misericordid  in  the  three  first  of  these  actions,  and  yet 
no  two  of  them  can  be  joined.  Therefore,  in  a  still  later  case,  a  new  crite- 
rion was  substituted;  and  it  was  said  by  Buller,  J.  to  be  universally  true, 
that  wherever  the  same  plea  may  be  pleaded,  and  the  same  judgment  given, 
on  two  counts,  they  may  be  joined  in  the  same  declaration. (i';*)  But  even 
this  rule  is  not  altogether  unexceptionable;  for  it  is  clear  that  case  and 
trespass  cannot  in  general  be  joined,  although  the  same  plea  of  not  guilty 
of  the  premises  will  serve  for  both,  and  there  is  the  same  judgment  in 
each,  for  damages  and  costs:  and  though  in  general  the  judgment  in  tres- 
pass is  quod  capiatur,  and  in  actions  upon  the  case,  quod  sit  in  miseri- 
cordid,{c)  yet  sometimes  there  is  an  entry  of  a  capiatur  in  case,  as  well  as 
in  trespass.[d)     It  should  also  be  observed,  that  this  rule  is  merely  affirm- 

^   (d)  2  Lutw.  1249.    1  Ld.  Eaym.  83.    There  is  also  a  writ  in  the  regisier,  detixore  abdvctd 
cum  bonis  viri.   F.  N.  B.  89.     But  this  writ  has  been  said  to  be  against  law.     2  Salk.  637. 

(e)  5  Barn.  &  Aid.  652.   1  Dowl.  &.  Ryl.  282,  S.  C. 

(/)  6  Barn  &  Cres.  268. 

(g)   1  Wils.  252.  [h)  1  Wils.  321.  («)  3  Wils.  354. 

{h)  1  Durnf.  &  East,  276,  and  see  2  Wms.  Saund.  5  Ed.  117,  e.f. 

\c)  1  Ld.  Rnym.  273.     2  Wms.  Saund.  5  Ed.  117,  e. 

\d)   1  Rol.  Abr.  tit.  Amercement,  E. 


OF  ACTIONS,  ETC.  12 

ative ;  and  it  does  not  hold  e  converao^  that  different  counts  cannot  be 
joined,  unless  there  be  the  same  plea  and  judgment  on  all  of  them ;  for  it 
is  holden,  that  debt  on  record,  specialty  and  simple  contract,  may  be 
joined,  although  they  require  different  pleas  ;(t')  and  in  Jebt  and  detinue, 
whicli  may  also  be  joined,  not  only  the  pleas,  but  the  judgments  are  differ- 
ent.(/)  The  nature  of  the  causes  of  action  therefore  should  be  attended 
to,  in  order  to  determine  whether  different  counts  may  or  may  not  be 
joined  in  the  same  declaration :  and,  with  the  exceptions  which  have  been 
noticed,  it  may  safely  be  laid  down  as  a  general  rule,  that  wherever  the 
causes  of  action  are  of  the  same  nature,  and  may  properly  be  the  subject 
of  counts  in  the  same  species  of  action,  they  may  be  joined,  otherwise  they 
cannot. 

In  order  to  join  several  counts  however,  in  the  same  declaration,  it  is 
necessary  that  they  should  be  all  of  them  in  the  same  rifjid  ;{fj)  and  upon 
that  ground  it  is  holden,  that  a  plaintiff  cannot  join  in  the  same  declar- 
ation, a  demand  as  executor,  with  another  which  accrued  in  his  own 
right  ;(/<)  and  such  misjoinder  of  action  is  a  defect  in  substance,  and  there- 
fore bad  on  a  general  demurrer,  or  in  arrest  of  judgment,  or  on  a  writ  of 
error,  (e)  But  a  count  for  money  had  and  received  by  the  defendant  to 
the  use  of  an  executor,(A:)  or  for  money  paid  by  the  plaintiff  as  such,  to 
the  use  of  the  defendant,(Z)  may  be  joined  with  a  count  on  a  promise  to 
the  testator.  So,  a  count  upon  a  promise  to  the  plaintiff  as  ad- 
ministratrix, for  *goods  sold  and  delivered  by  her  after  the  [  *13  ] 
death  of  the  intestate,  may  be  joined  with  a  count  upon  an  ac- 
count stated  with  her  as  administratrix ;  for  the  damages  and  costs  when 
recovered  with  the  assets  :(a)  and  it  is  a  rule,  that  where  the  transaction 
has  been  entirely  with  executors  or  administrators  in  their  representative 
character,  and  not  in  their  personal  character,  or  altogether  in  their  per- 
sonal character,  the  counts  may  be  joined. (6)  Three  executors  having 
ordered  goods  to  be  sold  as  the  goods  of  their  testator,  afterwards  sued  for 
the  amount,  without  styling  themselves  executors,  and  witliout  joining  a 
fourth  executor,  who  was  named  in  the  will;  and  the  court  held  they  might 
recover.(c) 

An  executor  or  administrator  may  declare  as  such,  on  an  account  stated 
by  the  defendant,  with  the  testator  or  intestate,  or  with  the  plaintiff, 
of  moneys  due  to  him  in  his  representative  charactcr.((?)  And  where  a 
testator  or  intestate  has  stated  an  account,  it  is  usual  to  declare  for  the 
balance,  against  his  executor  or  administrator.  Or,  if  an  executor  or 
administrator  state  an  account  of  moneys  due  from  the  testator  or  intes- 
tate,[e)  or,  as  it  seems,  of  moneys  due  from  himself  in  his  representative 

(r)  Cro.  Car.  316.     1  Vent.  36G.     1  Lutw.  43.      1  Wils.  248. 

(/)  5  Mod.  9.  (g)  2  Wms.  Saund.  5  Ed.  117,  c.d.  e. 

(/i)  1  Salk.  10.  2  Ld.  Raym.  841.  2  Sir.  1271.  1  Vvils.  171,  S.  C.  3  Durnf.  &  East,  65». 
4  Durnf.  &  East,  277.     3  Bos  &  Pul.  7.     2  Wms.  Saund.  5  Ed.  117  c. 

((■)  4  Durnf.  &  East,  347.  1  H.  Blac.  108.  2  Bos.  &  Pul.  424.  5  Barn,  k  Aid.  G52.  2 
Chit.  Ilep.  343.  1  Dowl.  &  Ryl.  282,  S.  C.  but  see  1  New  Rep.  C.  P.  43.  G  East,  333,  S.  C. 
in  Error. 

{k)  3  Durnf.  &  East,  G50,  but  see  2  Wms.  Saund.  5  Ed.  117,  f. 

(/)  3  East,  104. 

(«)  6  East,  405.    2  Smith  R.  410,  S.  C,  and  see  5  Price,  412.    7  Price,  591,  S.  C.  in  error. 

\h)  Per  Le  Blanc,  J.    2  Smith  R.  416.  (c)  2  Bing.  177,  9  Moore,  340,  S.  C. 

((/)  2  Lev.  1G5.  1  Durnf.  &  East,  487.  6  East,  405.  1  Taunt.  322.  C  Taunt.  453.  2 
Marsh.  147,  S.  C.     8  Moore,  146.     1  Bing.  249,  S.  C.     Forrest,  98,  accord. 

[c)  1  n.  Blac.  102. 

Vol.  I.— 2 


13  OF  ACTIONS,  ETC. 

character,(/)  he  may  be  declared  against  as  such,  for  what  appears  to  be 
due.  And,  in  any  of  the  above  cases,  other  causes  of  action,  in  the  same 
right,  may  be  joined  in  the  decLaration.[l]  But  a  count  upon  an  account 
stated  with  the  pLaintifTs,  executors,  &c.,  not  saying  as  executors,  &c., 
cannot  be  joined  with  counts  on  promises  to  the  testator  ;  for  it  is  no 
allegation  that  the  promises  were  made  to  the  plaintiffs  in  their  represen- 
tative capacity  ;  and,  under  such  a  count,  proof  might  be  given  of  an 
account  stated  with  them  individually. ((/)  And  a  count  in  assumpsit 
against  husband  and  wife,,  who  was  administratrix  with  the  will  annexed, 
upon  promises  by  the  testator  to  pay  rent,  cannot  be  joined  with  counts 
upon  promises  by  the  husband  and  wife,  as  administratrix,  for  use  and 
occupation  by  them  after  the  death  of  the  testator. (/«) 

In  an  action  by  the  assignees  of  a  bankrupt,  the  plaintiffs  may  join 
counts  for  money  lent  and  advanced,  and  money  paid  by  them,  as  assign- 
ees, with  counts  for  money  had  and  received  to  their  use,  and  upon  an 
account  stated  with  them,  in  that  character. (e)  And  the  assignees  under 
a  joint  commission  against  A.  and  B.  may,  in  an  action  to  recover  a  debt 
due  to  A.,  describe  themselves  in  the  declaration,  as  assignees  of  A. 
alone. (yt)     So,  where  the  plaintiffs  sued  as  assignees  of  A.   and  B.  and 

also  as  assignees  of  C.  for  a  joint  demand,  due  to  all  the  bank- 
[   *14   ]  rupts,  the  declaration  *was  holden  good,  on  a  motion  in  arrest 

of  judgment. (rt)  The  assignees  under  a  joint  commission  against 
two  partners,  may  recover,  in  the  same  action,  debts  due  to  the  partners 
jointly,  and  debts  due  to  them  separately. (5)  But  the  assignees  of  A.,  a 
bankrupt,  and  also  of  B.,  a  bankrupt,  under  separate  commissions,  cannot 
recover,  in  the  same  action,  a  joint  debt  due  from  the  defendant  to  both 
the  bankrupts,  and  also  separate  debts  due  to  each ;  and  if  in  such  an 
action  the  jury  have  assessed  the  damages  severally,  on  the  separate 
counts,  the  court  will  arrest  the  judgment  on  those  counts  which  demand 
the  debts  due  to  each  bankrupt  separately. (c)  And  the  assignees  of  A. 
and  B.,  bankrupts,  under  a  joint  commission,  cannot  maintain  an  action 
for  money  had  and  received  to  the  use  of  the  bankrupts,  or  to  their  own 
use,  if  it  be  proved  that  one  of  them  only  had  committed  an  act  of  bank- 
ruptcy ;  neither  are  they  entitled  to  recover  the  separate  moiety  of  one, 
under  such  commission. ((i)(A.) 

(/)  7  Taunt.  580.  1  Moore,  305,  S.  C,  but  see  1  H.  Blac.  108.  2  Bos.  &  Pul.  424.  2 
Wms.  Saund.,  5  Ed.  117,  d. 

[g)  5  East,  150,  and  see  2  Bos.  &  Pul.  424.     5  Moore,  282.     2  Brod.  &  Bing.  460,  S.  C. 

[h)  3  Barn.  &  Aid.  101,  and  see  1  Taunt.  212.     2  Chit.  Rep.  697. 

(0  5  Maule  &  Sel.  205  ;  2  Chit.  Rep.  325,  S.  C. 

[k)  2  Stark,  Ni.  Pri.  27,  and  see  8  Taunt.  202. 

{a)  3  Durnf.  &  East,  779.  (6)  4  Bing.  115. 

(c)  3  Durnf.  &  East,  433,  and  see  2  Moore,  3.     8  Taunt.  134,  S.  C. 

{d)  8  Taunt.  200.  2  Moore,  122,  S.  C.  And  see  further,  as  to  the  joinder  of  actions,  2 
Wms.  Saund.,  5  Ed.  117,  «,  6,  c,  d,  ej.  1  Chit.  PL,  4  Ed.  179.  Steph.  PI.  279,  80.  3  Barn. 
&  Aid.  208.     1  Chit.  Rep.  619,  S.  C,  and  the  cases  there  cited. 

[1]  But  a  count  in  assumpsit,  for  money  had  and  received  by  defendant  as  executor,  to 
the  use  of  the  plaintiff,  cannot  be  joined  with  a  count  for  money  due  to  the  plaintiff  from 
defendant  as  executor,  upon  an  account  stated  with  him  of  money  due  from  him  as  execu- 
tor. 7  Barn.  &  Cres.  444.  1  Man.  &  Ryl.  180,  S.  C.  But  it  seems  that  the  latter  count 
may  be  joined  with  a  count  for  money  paid  by  the  plaintiff,  to  the  use  of  the  defendant  as 
executor.     Id.  Ibid. 

(a)  As  a  general  principle,  the  issuing  or  suing  out  of  a  writ  is  considered  the  commence- 
ment of  an  action.     Carpenter  v.  Butterfield,  3  Johns.  Casey.  145.     Lowry  y.  Lawrence,  1 


OF  ACTIONS,  ETC.  U 

The  limitation  of  personal  actions  is   regulated  by  several  statutes. 
By  the  31  Eliz.  c.  5,  §  5,  "  all  actions  brought  for  any  forfeiture  upon  a 


Caines,  69.  Brace  v.  Morgan,  3  Gained,  133.  Bird  v.  Carilal,  2  Johns.  342.  Cheelham  v. 
Lewis,  3  Johns.  42.  Fowler  v.  Sharjie,  15  Johns.  326.  Nosa  v.  Luther,  4  Con.  158.  Ilngan 
V.  Cuyler,  8  Con.  203.  Parker  v.  Colcord,  2  N.  Hamp.  36.  SocitO/,  \c.  v.  Whilcomb,  lb. 
227.  "/on/ V.  y'A///(>>»,  1  Pick.  202.  Reed  y.  Brewer,  Peck,  Tenn.  Kcp.276.  Thompson  v. 
i>W,6  .Moar.  5G0.  Z'ay  v.  /yawi,  7  Verm.  426.  Coz  v.  Cooper,  3  Ala.  256.  CAiV*-*  v.  ^onea,  7 
Dana,  545.  Whiiaker  v.  Turnbull,  3  Harr.  172.  Tcnz/e  v.  Simpson,  1  Scam.  30.  Swift  v. 
Crocker,  21  Pick.  241.  Bunker  v.  aSA«/,  8  Metef.  150.  Swisher  v.  Swisher,  Wright,  755.  Cald- 
well V.  Ifeilshu,  9  Watts.  &  Serg.  51.  Fi/ndell  v.  Maijdwell,  7  B.  Mon.  314.  The  date  of  a  writ 
is,  prima  facia,  the  commencement  of  an  action,  though  the  date  is  only  a  day  or  two  before 
the  action  would  be  Inirred  by  the  statute  of  limitations,  and  though  the  writ  is  not  served 
until  several  weeks  after  its  date,  and  no  reason  is  shown  for  the  delay.  Bunker  v.  Shed, 
8  Mecft.  150.  The  date  of  the  writ  is  prima  facie,  but  not  conclusive  evidence  of  the  true  time 
when  the  action  was  commenced.  Johnson  v.  Farwcll,  7  Greenl.  373.  Day  v.  Lamb,  7  Verm. 
426.  To  prevent  the  bar  of  tae  statute  of  limitations,  filing  the  writ  in  good  faitli  will  be 
deemed  a  commencement  of  the  action,  although  it  is  not  served  till  several  days  after- 
wards, 6'arrfner  v.  ireMer,  17  Pick.  407.  //(/uy/z^ow  v.  ieary,  3  Dev.  &  Batt.  21.  Bout/hton  y. 
Bruce,  20  Wend.  237.  It  is  not  necessary,  in  order  to  save  the  statute  of  limitations,  to 
show  that  the  writ  was  returned,  or  actually  delivered  to  an  officer;  it  is  sufficient  if  it  was 
sent  to  him  with  a  bona  fide  intei:tion  that  it  should  be  served.  Burdick  v.  Green,  18  Johns. 
14.  Bunker  v.  Shed,  8  Metcf.  150.  There  may  be  some  uncertainty  or  ambiguity  in  the 
term  "suing  out  the  writ,''  but  there  can  be  no  doubt  that  the  delivery  of  it  to  an  officer, 
or  leaving  it  at  his  house,  for  the  purpose  of  being  executed,  is  a  commencement  of  the 
suit.  Branson  v.  Earl,  17  Johns.  05,  11  Johns.  473.  Field  v.  Jacobs,  12  Metcf.  110.  Where 
a  writ  bears  teste  of  the  day  when  it  was  actually  made,  the  day  of  the  teste  must  be  con- 
sidered as  the  day  of  the  commencement  of  the  action.  But  the  time  of  the  day  of  the 
teste  when  the  writ  is  actually  made,  is  not  always  to  be  considered  as  the  true  time  of  the 
commencement  of  the  action.  Robbinson  v.  Burlci<jh,  5  N.  Hamp.  225.  Thus  when  a  writ  is 
made,  in  a  case  where  a  demand  and  refusal  were  necessary  to  give  a  right  of  action,  and 
the  demand  is  subsequently  made,  and  the  writ  then  served,  the  action  is  commenced  when 
the  plaintiff  elected  to  use  his  writ,  and  directed  the  officer  to  serve  it.  Graves  v.  Ticknor, 
6  N.Hamp.  537.  The  issuing  of  a  wiit  of  summons,  although  returned  not  served,  is  a  suit 
brought ;  and  would  release  the  guarantor  of  a  bond  who  had  stipulated  in  consideration  of 
total  forbearance.     Caldwell  y.  lleilshu,  9  Watts  &  Serg.  51. 

A  suit  is  not  deemed  commenced,  under  the  code  of  precedure  in  New  York,  so  as  to 
institute  a  proceeding  under  the  act  to  abolish  imprisonment  for  debt,  before  the  summons 
is  served  on  the  defendant,  there  being  neither  personal  service  nor  publication.  Lee  v. 
Avcrell,  1  Sandf.  Sup.  Ct.  R.  731.  It  seems,  that  a  suit  is  commenced,  so  as  to  support  the 
plea  of  lis  pendens  in  another  suit  for  the  same  cause  of  action,  when  the  writ  is  sued  out 
and  an  attachment  of  property  made  thereon.     Bennett  v.  Chase,  1  Foster,  \.  li.  570. 

As  a  general  rule,  a  suit  is  not  commenced,  where  the  service  of  the  summons  is  by  pub- 
lication, until  the  expiration  of  the  time  for  publication  prescribed  by  the  code.  Yet,  where 
an  attachment  has  been  issued  against  the  property  of  the  defendant,  and  his  goods  have 
been  taken  under  it,  after  which  he  dies,  the  court  acquires  sufficient  jurisdiction  to  put  the 
suit  in  such  a  condition  that  the  plaintiff  can  enforce  his  lien,  notwithstanding  a  summons 
has  not  been  served ;  and  has  sufficient  control  over  the  action  to  substitute  the  personal 
representative  of  the  deceased,  as  a  party  defendant,  in  order  that  the  summons  may  be 
duly  served.  More  v.  Thayer,  10  Barb.  Sup.  Ct.  258.  Where  an  action,  brought  in  New 
York  since  the  revised  statutes,  is  instituted  by  capias,  the  suit  is  not  considered  as  com- 
menced until  the  issuing  and  serving  of  the  capias  ;  consequently,  to  charge  a  sheriff,  in 
an  action  of  debt  for  an  escape,  the  writ  must  be  actually  served  upon  him  while  the  debtor 
is  off  the  limits.     Carruth  v.  Church,  6  Barb.  Sup.  Ct.  R.  504. 

In  Connecticut,  however,  the  commencement  of  the  action  depends  on  the  service  of  the 
writ.  Clark  v.  Helm,  1  Root,  487  ;  Jenks  v.  Phelps,  4  Conn.  149 ;  Spalding  v.  Butts,  6  Id. 
30 ;  Gates  y.  Bushnell,  9  Id.  530.  The  return  is  evidence  of  the  time.  Perkins  v.  Perkins, 
Conn.  558.  The  law  appears  to  be  the  same  in  Vermont ;  the  writ  must  be  served  and 
returned.     Day  v.  Lamb,  7  Verm.  426  ;  Downes  v.  Garland.  21  Verm.  362. 

In  Indiana,  the  delivery  of  the  writ  to  the  sheriff  is  the  commencement  of  the  suit. 
Underwood  v.  Talham,  1  Smith,  152. 

In  Arkansas,  the  filing  of  a  declaration  alone  is  not  the  commencement  of  an  action. 
Bank  v.  Cason,  5  Eng.  479.     In  respect  to  the  statute  of  limitations,  an  action   is   to  be 


J4  OF  ACTIONS,  ETC. 

penal  statute,  -wlierebj  the  forfeiture  is  limited  to  the  king  only,  shall  be 
broufTht  Avithin  two  years  after  the  offence  committed,  and  not  after.  And 
all  actions  brought  for  any  forfeiture,  upon  a  penal  statute,  except  the 
statute  of  tillage,  the  benefit  AYhereof  is  limited  to  the  king  and  the 
informer,  shall  be  brought  within  one  year  after  the  offence  committed ; 
and  in  default  thereof,  the  same  shall  be  brought  for  the  king,  at  any  time 
within  tivo  years  after  that  year  ended :  And  if  any  action  shall  be  brought 
after  the  time  so  limited,  the  same  shall  be  void.  Provided,  that  where  a 
shorter  time  is  limited,  the  action  shall  be  brought  within  that  time." 
This  statute  extends  to  all  actions  brought  upon  penal  statutes,  whereby 
the  forfeiture  is  limited  to  the  king  and  the  party,  whether  made  before 
or  since  the  31  Eliz.(e)  But  it  does  not  extend  to  actions  brought  by  the 
party  grieved.[f)  And  where  the  penalty  is  given  to  a  common  informer 
alone,  different  opinions  have  been  entertained,  whether  it  is  within  the 
statute.  On  the  one  hand  it  has  been  said,  that  this  is  not  a  case  within 
the  words  of  the  act,  which  ought  to  be  taken  strictly,  and  not  extended 
by  an  equitable  construction.  On  the  other  hand,  it  has  with  more  reason 
been  contended,  that  as  the  informer  is  bound,  when  the  king 
[  *15  ]  is  joined  with  *him,  much  more  should  he  be  bound,  when  he 
sues  by  himself,  (a)  And  accordingly,  where  an  action  was 
brought  after  a  year,  by  a  common  informer,  on  the  statute  9  Anne  c.  14, 
the  court  of  Common  Pleas  held  this  to  be  a  case  within  the  31  Eliz., 
though  the  action  was  given  in  the  first  instance  to  the  party  grieved,  and 
afterwards  to  a  common  informer ;  for  such  actions  would  have  been 
within  the  7  Hen.  VIII.,  c.  3,  and  the  31  Eliz.  was  made  to  narrow  the 
time  given  by  that  statute,  and  could  never  mean  to  leave  any  actions 
unrestrained  in  point  of  time  :  the  latter  part  of  the  clause  must  therefore 
be  construed  to  extend  to  them. (J) 

By  the  statute  21  Jac.  I.  c.  16,  §  3,  it  is  enacted,  that  "  all  actions  of 
trespass  quare  clausum  fregit,  ^e.,  detinue,  trover,  and  replevin  for 
taking  away  goods  or  cattle ;  all  actions  of  account,  and  upon  the  ease, 
other  than  such  accounts  as  concern  the  trade  of  merchandize  between 
merchant  and  merchant,  their  factors  or  servants ;  all  actions  of  debt, 
grounded  upon  any  lending  or  contract  without  specialty,  or  for  arrearages 
of  rent;  and  all  actions  of  assault,  menace,  hattery,  ivounding,  and  im- 
p-isonment,  shall  be  commenced  and  sued  within  the  times  hereafter 
expressed,  and  not  after ;  that  is  to  say,  the  said  actions  upon  the  case, 
(other  than  for  slander,)  account,  trespass  quare  clausum  f regit,  ^c, 
debt,  detinue,  and  replevin,  within  six  years  next  after  the  cause  of  such 
actions  or  suit,  and  not  after ;  actions  of  assault,  battery,  tvounding,  or 
imprisonment,  within  four  years ;  and  actions  upon  the  case  for  ivords, 
within  tivo  years  next  after  the  words  spoken,  and  not  after." 

(fi)  1  Marsh.  321,  {a)     3  Maule  &  Sel.  434,  &c.,  440,  &c.,  444. 

(/)  1  Show.  Rep.  353  ;  4  Garth.  233.  Comb.  194.  4  Mod.  129.  12  Mod.  27,8.  C.  Willes, 
443,  (a)    Speers  v.  Frederic,  T.  25  Geo.  III.,  K.  B.  (a)  1  Ld.  Eaym.  78. 

{b)  Lookup  V.  Sir  T.  Frederic,  M.  6  Geo.  ILL,  Bui.  Ni.  Pri.  195. 

deemed  commenced  -when  the  writ  is  issued,  and  not  by  filing  a  declaration  before  the  writ 
is  issued.     Bank  v.  Bates,  Id.  120. 

It  has  been  held  in  Tennessee  that  the  service  of  notice  is  the  commencement  of  a  suit, 
and  if  the  time  required  to  perfect  the  bar  of  the  statute  of  limitations  is  not  complete  before 
service  it  arrests  its  operation.     Youn^  v.  Hare,  11  Humph.  303. 


CF  ACTIONS,  ETC.  15 

"  Nevertheless,  if  in  any  of  the  said  actions,  judgment  be  given  for  the 
plaintiff,  and  the  same  be  reversed  by  error  ;  or  a  verdict  pass  for  the 
plaintiff,  and  upon  matter  alleged  in  arrest  of  judgment,  the  judgment  be 
given  against  the  plaintiff,  that  he  take  nothing  by  his  plaint,  "writ,  or 
bill ;  or  if  any  of  the  said  actions  shall  be  brought  by  original,  and  the 
defendant  therein  be  outhiwed,  and  shall  after  reverse  the  outlawry ;  that 
in  all  such  cases,  the  party  plaintiff,  liis  heirs,  executors  or  administrators, 
as  the  case  shall  require,  may  commence  a  new  action,  within  a  year 
after  such  judgment  reversed,  or  given  against  the  plaintiff,  or  outlawry 
reversed,  and  not  after." 

"  And  if  any  person  or  persons,  entitled  to  any  of  the  said  actions,  shall 
be,  at  the  time  of  any  such  cause  of  action  accrued,  within  the  age  of 
twenty-one  j^'cars,  feme  covert,  non  compos  mentis,  imprisoned,  or  beyond 
the  seas ;  then  such  person  or  persons  shall  be  at  liberty  to  bring  the 
same  actions,  within  such  times  as  arc  before  limited,  after  tlieir  com- 
ing to  or  being  of  full  age,  discovert,  of  sane  memory,  at  large,  and 
returned  from  beyond  the  seas."[A] 

These  statutes  arc  confined  to  the  particular  actions  enumerated  there- 
in :  and  do  not  extend  to  actions  of  annuity,  or  for  the  recovery  of  a  rent- 
charge  ;(6')  nor  to  actions  of  account  concerning  the  trade  of 
*merchandize  between  merchant  and  merchant,  where  the  [  *1G  ] 
accounts  arc  open  and  current ;  nor  to  actions  of  covenant,  or 
debt  on  specialty,  or  other  matter  of  a  higher  nature ;  but  only  to  actions 
of  deht  upon  a  lending  or  contract  without  specialty,  or  for  arrearages  of 
rent  reserved  on  parol  leases. (a)  A  scire  facias  also,  being  founded  on 
matter  of  record,  is  not  within  the  statutes  of  limitations. [1][b] 

(c)  10  Yes.  453.     M'Clel.  495. 

{a)  Hut.  109.     1  Wms.  Saund.  5  Ed.  38.     2  Wms.  Saund.  5  Ed.  C>Q. 

[I]  But  now,  by  the  Law  amendment  act,  3  &  4  W.  IV.  c.  42.  g  3,  "  all  actions  of  dcht  for 
rent  npon  an  indenture  of  demise,  all  actions  of  covenant  or  debt  upon  any  bond  or  other 
specialty,  and  all  actions  of  d.hl  or  scire  facias  upon  any  recognizance,  and  also  all  actions  of 
debt  upon  any  (?«.v/rf7,  where  the  submission  is  not  by  specialty,  or  for  any  fine  due  in  respect 
of  any  copyhold  estates  or  for  an  escape,  or  for  money  levied  on  any  feri  facias,  and  all 
actions  for  penalties,  damages,  or  suras  of  money,  given  to  the  party  grieved,  by  anj'  statute 
now  or  hereafter  to  be  in  force,  that  shall  be  sued  or  brought  at  any  time  after  the  end  of 
the  then  present  session  of  parliament,  shall  be  commenced  and  sued  within  the  time  and 
limitation  hereinafter  expressed,  and  not  after ;  that  is  to  say,  the  said  actions  of  ddit  for 
rent  upon  an  indenture  of  demise,  or  covenant  or  dcht  upon  any  bond  or  other  specialty, 
actions  of  deht  or  scire  facias  upon  recognizance,  within  ten  years  after  the  end  of  the  then 
present  session,  or  within  linntij  years  after  the  cause  of  such  actions  or  suits,  but  not  after  ; 
the  said  .actions  by  the  party  grieved,  one  year  .after  tlie  end  of  that  session,  or  within  two 
years  after  the  cause  of  such  actions  or  suits,  but  not  after ;  and  the  snid  other  actions, 
within  three  years  after  the  end  of  that  session,  or  within  siz  j'ears  after  the  cause  of  such 
actions  or  suits,  but  not  after:  Provided,  that  nothing  therein  contained  shall  extend  to 
any  action  given  by  any  statute,  where  the  time  for  bringing  such  action  is,  or  shall  be,  by 
any  statute  specially  limited." 

And  it  is  thereby  further  enacted,  that  "  if  any  person  or  persons,  that  is  or  are  or  shall  be 
entitled  to  any  such  action  or  suit,  or  to  such  scire  facias,  is  or  are,  or  shall  be  at  the  time  of 
any  such  cause  of  action  accrued,  within  the  age  of  twent)/-one  yQnr?,f(  me  covert,  von  compos 
mentis,  or  beyond  the  seas,  then  such  person  or  persons  shall  be  at  liberty  to  bring  the  same 
actions,  so  as  thej'  commence  the  same  within  such  times,  after  their  coming  to  or  being  of 

(a)  The  statutes  of  limitation  of  the  varions  States  in  the  Union  will  be  found  collected 
in  Mr.  Angell's  valuable  Treatise  on  Limitations,  Apjiendix,  3d  Edition,  by  May. 

(r)  The  student  is  referred  for  a  brief  but  comprehensive  discussion  of  the  Statute  of 
Limitations,  to  Professor  Parsons's  2d  vol.  on  the  Law  of  Contracts,  Ch.  V.  p.  341-379. 


jg  OF  ACTIONS,  ETC. 

Suits  in  the  Admiralty  Court,  for  seamen  s  wages,  not  being  provided 
for  by  these  statutes,(6)  it  was  enacted  by  the  4  Anne,  c.  16,  §  17,  that 
"  all  suits  and  actions  in  the  court  of  Admiralty,  for  seamen's  wages, 
sball  be  commenced  and  sued  within  six  years  next  after  the  cause  of 
such  suits  or  actions  shall  accrue,  and  not  after ;"  with  the  like  j;romo, 
as  before,  in  favour  of  persons  within  the  age  of  twenty-one  years,  &c.[l] 

[b)  2  Ld.  Raym.,  934.     3  Salk.,  227.     6  Mod.,  25,  S.  C.     2  Ld.  Raym.,  1204.     2  Salk., 
424,  S.  C. 


full  age,  discovert,  of  sound  memory,  or  returned  from  beyond  the  seas,  as  other  persons, 
having  no  such  impediment,  should,  according  to  the  provisions  of  that  act,  have  done;  3  & 
4  W.  lY.  c.  42,  ?  4,  and  see  3  Rep.  C.  L.  Com.  16,  T3.  And  that  if  any  person  or  persons, 
against  whom  there  shall  be  any  such  cause  of  action,  is  or  are,  or  shall  be,  at  the  time  of 
such  cause  of  action  accrued,  beyond  the  seas,  then  the  person  or  persons  entitled  to  any 
such  cause  of  action,  shall  be  at  liberty  to  bring  the  same  against  such  person  or  persons, 
within  such  times  as  are  before  limited,  after  the  return  of  such  person  or  persons  from 
beyond  the  seas."  3  &  4  W.  IV.  c.  42,  §  4,  and  see  3  Rep.  C.  L.  Com.  16,  73. 

"  Provided  always,  that  if  any  acknowledgment  shall  have  been  made,  either  by  writing, 
signed  by  the  party  liable  by  virtue  of  such  indenture,  specialty,  or  recognizance,  or  his  agent, 
or  by  part  payment  or  part  satisfaction,  on  account  of  any  principal  or  interest  being  then  due 
thereon,  it  shall  and  may  be  lawful  for  the  person  or  persons  entitled  to  such  actions,  to  bring 
his  or  their  action  for  the  money  remaining  unpaid,  and  so  acknowledged  to  be  due,  within 
tiveniy  years  after  such  acknowledgment  by  writing,  or  part  payment  or  part  satisfaction,  as 
aforesaid  :  or  in  case  the  persons  or  persons  entitled  to  such  action  shall,  at  the  time  of  such 
acknowledgment,  be  under  such  disability  as  aforesaid,  or  the  party  making  such  acknow- 
ledgment be,  at  the  time  of  making  the  same,  beyond  the  seas,  then  within  Uventi/  years  after 
such  disability  shall  have  ceased  as  aforesaid,  or  the  party  shall  have  returned  from  beyond 
seas,  as  the  case  may  be ;  and  the  plaintiff  or  plaintiffs  in  any  such  action  on  any  indenture, 
specialty,  or  recognizance,  may,  by  way  of  replication,  state  such  acknowledgment,  and  that 
such  action  was  brought  within  the  time  aforesaid,  in  answer  to  a  plea  of  this  statute."  3  & 
4  W.  IV.,  c.  42,  g  5,  and  see  3  Rep.  CI.  Com.  16,  73. 

"Nevertheless,  if  in  any  of  the  said  actions,  judgment  be  given  for  the  plaintifiF,  and  the 
same  be  reversed  by  error,  or  a  verdict  pass  for  the  plaintiff,  and,  upon  matter  alleged  in 
arrest  of  judgment,  the  judgment  be  given  against  the  plaintiff,  that  he  take  nothing  by  his 
plaint,  writ,  or  bill ;  or  if,  in  any  of  the  said  actions,  defendant  shall  be  outlawed,  and  shall 
after  reverse  the  outlawry,  that  in  all  such  cases,  the  party  plaintiff",  his  executors  or  admin- 
istrators, as  the  case  shall  require,  may  commence  a  new  action  or  suit,  from  time  to  time, 
within  a  i/ear  after  such  judgment  reversed,  or  such  judgment  given  against  the  plaintiff,  or 
outlawry  reversed,  and  not  after."  §  6,  and  see  2  Rep.  CI.  Com.  16,  37. 

The  statutes  of  limitations  were  construed  to  extend  to  persons  in  Scotland ;  so  that  if  a 
plaintiff  or  defendant  resided  there,  he  must  have  sued,  or  been  sued,  within  the  time  limited 
thereby;  Tidd  Prac.  9  Ed.  16,  and  see  King  v.  Walker,  1  Blac.  Rep.  286.  Du  BeUoix  v.  Lord 
Waterpark,  1  Dowl.  &  R.  16.  And  now,  by  the  law  amendment  act,  3  &  4  W.  IV.  c.  42,  ^  7. 
"  no  part  of  the  united  kingdom  of  Crreat  Britain  and  Ireland,  nor  the  islands  of  3Ian,  Guern- 
sey, Jersey,  Alderney,  and  Sark,  nor  any  islands  adjacent  to  any  of  them,  being  part  of  the 
dominions  of  his  Majesty,  shall  be  deemed  to  be  beyond  the  seas,  within  the  meaning  of  that 
act,  or  of  the  21  Jac.  1,  c.  16."  And  where  an  action  was  brought  in  the  King's  Bench,  on  a 
written  engagement  entered  into  in  Scotland,  the  court  held  that  the  case  must  be  governed 
by  the  law  of  this  country,  where  the  statute  of  limitations  had  attached,  although  it  was 
contended  that  the  Scotch  law  must  prevail,  which  would  have  allowed /or(!/  years  for  com- 
mencing the  suit.  British  Linen  Company  v.  Drummond,  10  Barn  &  C.  903.  1  Barn  &  Ad. 
284,  5,  S.  C.  cited  ;  and  see  Trimber  v.  Vignier,  4  Moore  &  S.  695.  So,  upon  a  promissory  note 
given  in  France,  the  payee  may  sue  the  maker,  if  resident  in  England,  during  six  years  from 
the  time  it  becomes  due  ;  although,  by  the  law  of  France,  all  actions  upon  promissory  notes  are 
wholly  barred  after  ^I'c  years  from  the  date  of  the  protest  thereon.  Huberv.  Steiner,  2  Bing. 
N.  R.202.  2  Scott,  304.  1  Hodges,  206,  S.  C.  But  Ireland  is  still  considered  as  a  place 
beyond  the  seas,  within  the  statute  4  Ann  c.  16,  g  19,  notwithstanding  the  act  of  Union,  and 
the  3  &  4  W.  IV.  c.  42,  §  7.  iawe  v.  Bennett,  1  Meeson  &  W.  70.  1  Tyr.  &  G.  441.  1  Gale, 
368,  S.  C,  and  see  Battersbyv.  Kirk,  2  Bing.  N.  R.  584,  3  Scott,  11.     1  Hodges,  451,  S.  C. 

[1]  There  is  no  limitation  of  time  as  regards  suits  in  the  Admirality  for  seamen's  wages. 
2  Gallison,  477.  The  I7th  section  of  the  statute  of  Anne,  quoted  in  the  text,  is  not  in  force 
in  Pennsylvania.     See  Angell  on  Lim.,  §  32,  33,  3d  ed.  by  May. 


OF  ACTIONS,  ETC.  16 

In  the  case  of  a  defendant  beyond  8ea,(c)  it  was  enacted,  by  the  same 
statute,  §  19,  that  "if  any  person  or  persons,  against  whom  there  shall 
be  any  such  cause  of  suit  or  action  fur  seamen's  wages,  or  any  of  the 
causes  of  action  mentioned  in  the  21  Jac.  I.,  shall  be,  at  the  time  of  any 
such  cause  of  suit  or  action  accrued,  beyond  the  seas,  then  the  person  or 
persons  entitled  to  any  such  suit  or  action,  shall  be  at  liberty  to  bring  the 
said  actions,  against  such  person  and  persons,  after  their  return  from 
beyond  the  seas,  within  such  times  as  are  respectively  limited  for  the 
bringing  of  the  said  actions  by  this  act,  and  by  the  said  other  act  of  21 
Jac.  I."  And  by  the  Lords'  Act,  32  Geo.  II._,  c.  28,  §  17,  "  no  advantage 
shall  be  had  or  taken  in  any  action  or  suit  against  any  prisoner  discharged 
by  virtue  of  that  act,  his  heirs,  executors  or  administrators,  for  that  the 
cause  of  action  did  not  accrue  within  six  years  next  before  the  commencing 
thereof,  unless  the  prisoner  was  entitled  to  take  such  advantage,  before 
be  stood  charged  in  custody,  by  virtue  of  the  original  suit  or  action ;  and 
in  such  case,  the  same  may  be  pleaded  by  any  such  prisoner,  his  heirs, 
executors  or  administrators." 

In  actions  of  assumjjsit,  if  the  plaintiff  be  in  England,  when  the  cause 
of  action  accrues,  though  he  afterwards  go  abroad,  the  time  of  limitation 
begins  to  run,  so  that  if  he  or  his  representatives  do  not  sue  within  six 
years,  the  statute  is  a  bar.((7)  And  if  one  plaintiff  be  abroad,  and  others 
in  England,  the  action  must  be  brought  within  six  years  after  the  cause 
of  action  arises.((?)[A]     It  has  also  been  determined,  that  the  statute  of 

(c)  2  Salk.  420. 

{d)  1  Wils.  134.  {e)  4  Durnf.  &  East,  516. 

[a]  The  statute  of  limitations  of  the  state  in  which  the  action  is  brought  is  to  govern,  and 
not  that  of  the  place  of  the  contract.  Graves  v.  Graves,  2  Bibb.,  207.  Ilankins  v.  Barney, 
5  Pet.,  457.  Levy  v.  Boas,  2  Bailey,  217.  Hintoii  v.  Totcnes,  1  Hill,  S.  C,  439.  M'Clunij  v. 
Silliman,  3  Pet.,  270.  Ward  \.  Uallam,2  Ball.,  217.  jWElmoj/le  v.  Cohen,  13  Pet.,  312. 
Ward  V.  HaUam,  1  Yeates,  329.  Richards  v.  Bicldey,  13  S.  &  R.  395.  Leroy  v.  Crownin- 
shield,  2  Mason,  151.  Jo7ies  v.  Hook,  2  Rand,  303.  Nash  v.  Tapper,  1  Caines,  403.  Rugglet 
V.  Keeler,  3  Johns.  2G3.  Lincoln  v.  Battelle,  6  Wend.  475.  Williams  v.  Preston,  3  J.  J. 
Marsh,  600.     Bisscll  v.  Hall,  11  Johns.  168.     Cartier  v.  Page,  8  Verm.,  150. 

"One  of  the  earliest  cases  in  this  country  upon  the  subject,  is  Nash  v.  Tapper,  1  Caines, 
(N.  Y.)  R.  402,  where  to  an  action  on  a  note,  the  plea  of  the  statute  of  limitations  of  six 
years  of  New  York,  was  pleaded,  and  the  plaintitf  replied,  that  the  contract  was  made  in 
Connecticut,  where  the  limitation  was  seventeen  years.  Upon  the  demurrer  to  this  repli- 
cation, the  court  held  it  bad,  and  the  plea  in  bar  good.  In  this  case,  it  will  be  observed, 
that  the  limitation  fixed  by  the  law  of  the  place  where  the  contract  was  made,  had  not  ex- 
pired. So,  in  an  api)cal  from  the  court  of  sessions,  in  Scotland,  to  the  House  of  Lords,  one 
of  the  points  decided  was,  that  a  solicitor  in  Loudon  suing  a  debtor  in  Scotland  for  costs  of 
conducting  an  appeal  in  England,  was  a  case,  in  which  the  triennial  prescription  of  the  law 
of  Scotland  prevailed,  when  the  term  of  prescription  or  limitation  in  England  by  the  statute 
of  James,  was  twice  that  length  of  time.  But  a  different  case  is  presented  from  either  of 
the  foregoing,  if  the  action  has  become  barred  entirely  by  the  lapse  of  time  prescribed  by 
the  law  of  the  place  where  the  contract  was  made.  In  such  a  case,  where  all  remedies  are 
barred  by  the  lex  loci  contractus,  Mr.  Justice  Story,  in  Le  Roy  v.  Crowninshield,  2  Mason,  (Cir. 
Co.)  R.  151,  stated  the  inclination  of  his  mind  to  be,  that  "there  is  a  virtual  extinction  of 
the  right  in  that  place,  which  ought  to  be  recognized  in  every  other  tribunal,  as  of  equal 
validity."  He  does  not  decide  so,  though  he  shows  that  it  is  not  without  countenance  from 
the  civilians  ;  and  though  he  reasons,  that  where  no  right  of  action  subsists  by  the  lex  loci 
contractus,  foreign  courts  do  not  enforce  the  original  obligation,  because  it  is  gone.  It 
resembled  the  case  of  bankruptcy.  But  the  learned  judge  admitted  that  the  current  of  au- 
thority was  too  strong  against  him  to  be  resisted.  In  Bulger  v.  Roche,  11  Mass.  R.  36,  it 
is  thus  remarked  by  Ciiief  Justice  Shaw, "  Whether  the  law  of  prescription  or  statute  of 
limitations,  which  takes  away  every  legal  mode  of  recovering  the  debt,  shall  be  considered 
as  affecting  the  contract,  like  payment,  release,  or  judgment,  which  in  effect  extinguish  the 
contract,  or  whether  they  are  to  be  considered  as  all'ecting  the  remedy,  only  by  determiuing 


IQ  OF  ACTIONS,  ETC. 

limitations  extends  to  persons  in  Scotland;  so  that  if  a  plaintiff  or 
defendant  reside  there,  he  must  sue,  or  be  sued,  within  the  time  limited 

the  time  within  which  a  particular  mode  of  enforcing  it  shall  be  pursued,  were  it  an  open 
question,  might  be  one  of  some  difficulty.  Judge  Story,  in  his  very  learned  work  on  the 
Conflict  of  Laws,  seems  to  have  arrived  at  a  conclusion  diflFerent  from  the  inclination  of  his 
mind, as  declared  in  LeRoyv.  Crowninsliield,  2  Mason,  (Cir.  Co.)  R.  151, for  he  says,  "It  may 
be  added,  that  as  the  law  of  prescription  of  a  particular  country,  even  in  a  case  of  a  con- 
tract made  in  such  a  country,  forms  no  part  of  the  contract  itself,  but  merely  acts  upon  it 
ex  post  facto  in  a  case  of  a  suit,  it  cannot  properly  be  deemed  a  right  stipulated  for  or  in- 
cluded in  the  contract."  In  confirmation  of  the  position,  he  cites  the  language  of  Lord 
Brougham,  in  giving  his  judgment  in  the  House  of  Lords,  in  Doe  v.  Lippman,  5  Clark  &  Finn. 
R.  1.  "  It  is  said,  that  the  limitation  is  of  the  very  nature  of  the  contract.  First,  it  is  said 
that  the  party  is  bound  for  a  given  time,  and  for  a  given  time  only.  That  is  a  strained  con- 
struction of  the  obligation.  The  party  does  not  bind  himself  for  a  particular  period  at  all, 
but  merely  to  do  something  on  a  certain  day,  or  on  one  or  other  of  certain  days.  In  the 
case  at  bar,  the  obligation  is  to  pay  a  sum  certain  at  a  certain  day ;  but  the  law  does 
not  suppose  that  he  is  at  the  moment  of  makiug  the  contract,  contemplating  the  period  at 
which  he  may  be  freed,  by  lapse  of  time,  from  performing  it.  The  argument  that  the  lim- 
itation is  of  the  nature  of  the  contract,  supposes  that  the  parties  look  only  to  the  breach  of 
the  agreement.  Nothing  is  more  contrary  to  good  faith  than  such  a  supposition,  that  the 
contracting  parties  look  only  to  the  period  at  which  the  statute  of  limitations  will  begin  to 
run.  It  will  sanction  a  wrong  course  of  conduct,  and  will  turn  a  protection  against  laches 
into  a  premium  for  evasiveness."  The  common  law,  beyond  all  doubt,  has  firmly  fixed  its 
own  doctrine,  (whatever  views  maybe  entertained  to  the  contrary  by  the  civilians,)  that  the 
limitation  prescribed  by  the  lex  fori,  in  respect  to  remedies,  must  prevail  in  all  cases  of  per- 
sonal actions :  though  in  all  cases  of  real  actions,  and  of  actions  touching  things  savouring 
of  the  realty,the  lex  rei  sitce  prevails." 

"  There  is,  however,  a  distinction  between  statutes  of  limitation,  to  which  Judge 
Story  refers,  in  his  Conflict  of  Laws,  and  which  he  there'treats  as  deserving  of  conside- 
ration. It  is  this :  suppose  the  statutes  of  limitation  of  a  particular  country  to  not  only 
extinguish  the  right  of  action  but  the  claim  itself,  and  declare  it  a  nullity  after  the  lapse  of 
the  time  prescribed;  and  the  parties  are  resident  within  the  jurisdiction  during  the  whole 
of  that  period,  so  that  it  has  fully  operated  upon  the  case.  Then  the  question,  says  the 
learned  writer,  might  properly  arise,  whether  such  statutes  of  limitation  may  not  afterwards 
be  set  up  in  any  other  country,  to  which  the  parties  may  remove,  by  way  of  extinguish- 
ment, or  transfer  of  the  claim.  That  there  are  countries  in  which  such  regulations  do  exist 
in  respect  to  real  property,  is  unquestionable;  and  there  are  States,  which  have  declared 
that  all  right  to  debts  due  more  than  a  prescribed  term  of  years,  shall  be  deemed  extin- 
guished. It  has  been  held,  that  where  personal  property  is  adversely  held  in  a  State  for  a 
period  beyond  that  prescribed  by  the  laws  of  that  State,  and  after  that  period  has  elapsed, 
the  possessor  should  remove  into  another  State,  which  has  a  longer  period  of  prescription 
or  none  at  all,  the  title  of  the  possessor  cannot  be  questioned.  Thus  it  has  been  held  by  the 
Supreme  Court  of  the  United  States,  that  five  years'  possession  of  a  slave  constitutes  a  title 
by  the  laws  of  Virginia,  which  might  be  set  up  as  a  defence  by  the  defendant  in  the  courts 
of  Tennessee.  But  other  than  in  that  court  the  principle  does  not  seem,  hitherto,  to  have 
obtained,  in  this  country,  any  direct  recognition.  On  the  contrary,  in  Bulger  v.  Roche,  in  Massa- 
chusetts, where  both  parties  residedduringthe  whole  period  of  the  running  of  the  statute  in 
Nova  Scotia,  where  the  right  of  action  was  extinguished  by  the  local  law,  it  was  held,  that  the 
right  of  action,  after  a  change  of  domicil  by  the  defendant,  by  a  removal  to  Massachusetts,  was 
not  thereby  extinguished  in  the  State  tribunals  ;  but  might  be  pursued  within  the  period  pre- 
scribed by  the  statute  of  limitations  of  Massachusetts.  Lord  Brougham,  in  delivering  his  opin- 
ion in  Doe  v.  Lipviann,  in  the  House  of  Lords,  refers  to  this  distinction  taken  by  Judge  Story, 
and  calls  it  an  '  excellent'  one.  In  that  case  it  was  said  that  by  the  law  of  Scotland,  not  the 
remedy  alone  was  taken  away,  but  that  the  debt  itself  was  extinguished  ;  but  under  the 
Scotch  law  of  prescription,  Lord  Brougham  said,  there  was  no  ground  for  the  distinction, 
and  that  the  debt  was  still  supposed  to  be  existing  and  owing,  though  the  act  of  limitation  of 
1772,of  Scotland,  was  strong  with  respect  to  the  remedy  to  be  enforced.  The  authority  of  judge 
Story  for  the  distinction,  was  likewise  cited  by  the  counsel  in  nuher  v.  Steiner,  2  Bing.  N.  C.  202, 
in  the  English  Court  of  Common  Pleas,  and  Chief  Justice  Tindal,  in  delivering  the  opinion, 
said,  that  undoubtedly  the  distinction,  when  taken  with  the  qualification  annexed  to  it  by 
the  author  himself,  appeared  to  be  well  founded.  That  qualification  is,  that  the  parties  are 
resident  within  the  jurisdiction  all  that  period.  '  With  such  restriction,'  says  Chief  Jus- 
tice Tindal,  '  it  does  indeed  appear  but  reasonable,  that  the  part  of  the  lex  loci  contractus^ 
which  declares  the  contract  to  be  absolutely  void  at  a  certain  limited  time,  without  any 
intervening  suit,  should  be  equally  rescinded  by  the  foreign  country,  as  the  part  of  the  lex 
loci  contractus,  which  gives  life  to,  and  regulates  the  construction  of  the  contract ;  both  parts 


OF  ACTIONS,  ETC.  16 

by  the  statute. (/)     But  if  the  plaintiff  be  abroad,  or  beyond  the  sea,  at 
the  time  when  the  cause  of  action  accrues,  the  statute  will  not  run  against 

(/)  1  Blac.  Rep.  286.     1  Dowl.  &  Ryl.  16. 


go  equally  ad  valorem  contractus,  both  ad  dccisionem  litis.'  But  in  this  case,  which  was  in 
respect  to  a  promissory  note,  the  French  law  of  prescription  appertains  only  to  the  time 
and  mode  of  instituting  the  remedy — ad  tempusct  modum  aclionis  instiluenda; ;  and,  therefore, 
the  payee  of  promissory  notes  made  in  France,  may  sue  the  maker,  if  resident  in  England, 
during  six  years  from  the  time  tliey  became  due."     Angell  on  Lira.,  ?  66,  67. 

The  rule  in  the  courts  of  the  United  States,  in  respect  to  pleas  of  the  statutes  of  limita- 
tion has  always  been,  that  they  strictly  affect  the  remedy,  and  not  the  merits.  In  the  case 
of  McEhnoijle  v.  Cohen,  13  Peters,  312,  this  point  was  raised  and  so  decided.  All  of  the 
judges  were  present  and  assented.  The  fullest  examination  was  then  made  of  all  the 
authorities  upon  the  subject,  in  connection  with  the  diversities  of  opinion  among  jurists 
about  it,  and  of  all  those  considerations  which  have  induced  legislatures  to  interfere  and 
place  a  limitation  upon  the  bringing  of  actions. 

"  We  thought  then,  and  still  think,"  says  Mr.  Just.  W.ayne,  "  that  it  has  become  a 
formulary  in  international  jurisprudence,  that  all  suits  must  be  brought  within  the  period 
prescribed  by  the  local  law  of  the  country  where  the  suit  is  brought, — the  hxfori;  other- 
wise the  suit  would  be  barred,  unless  the  plaintiff  can  bring  himself  within  one  of  the 
exceptions  of  the  statute,  if  that  is  pleaded  by  the  defendant.  This  rule  is  as  fully  recog- 
nized in  foreign  jurisprudence  as  it  is  in  the  common  law.  We  then  referred  to  authorities 
in  the  common  law,  and  to  a  summary  of  them  in  foreign  jurisprudence.  Burge's  Com.  on 
Col.  and  For.  Laws.  They  were  subsequently  cited,  with  others  besides,  in  the  second 
edition  of  the  Conflict  of  Laws,  483,  among  them  will  be  found  the  case  of  Lcroy  v.  Crown- 
inshield,  2  Mason,  151,  so  much  relied  upon  by  the  counsel  in  this  case. 

"  Neither  the  learned  examination  made  in  that  case  of  the  reasoning  of  jurists,  nor  the 
final  conclusion  of  the  judge,  in  opposition  to  his  own  inclinations,  escaped  oiir  attention. 
Indeed,  he  was  here  to  review  them,  with  those  of  us  now  in  the  court  who  had  the^  happi- 
ness and  benefit  of  being  associated  with  him.  He  did  so  with  the  same  sense  of  judicial 
obligation  for  the  maxim,  Stare  decisis  ei  non  quieta  movere,  which  marked  his  official  career. 
His  language  in  the  case  in  Mason  fully  illustrates  it : — '  But  I  do  not  sit  here  to  consider 
what  in  theory  ought  to  be  the  true  doctrines  of  the  law,  following  them  out  upon  princi- 
ples of  philosophy  and  juridical  reasoning.  My  humbler  and  safer  duty  is  to  administer 
the  law  as  I  find  it,  and  to  follow  in  the  path  of  authority,  where  it  is  clearly  defined,  even 
though  that  path  may  have  been  explored  by  guides  in  whose  judgment  the  most  implicit 
confidence  might  not  have  been  originally  reposed.'  Then  follows  this  declaration:— 
'It  does  appear  to  me  that  the  question  now  before  the  court  has  been  settled,  so  far  as  it 
could  be,  by  authorities  which  the  court  is  bound  to  respect.'  The  error,  if  any  has  been 
committed,  is  too  strongly  engrafted  into  the  law  to  be  removed  without  the  interposition  of 
some  superior  authority.  Then,  in  support  of  this  declaration,  he  cites  Huberus,  Voet, 
Pothier,  and  Lord  Kames,  and  adjudications  from  English  and  American  courts,  to  show 
that,  whatever  may  have  been  the  differences  of  opinion  among  jurists,  the  uniform  admin- 
istration of  the  law  has  been,  that  the  lex  loci  contractus  expounds  the  obligation  of  contracts, 
and  that  statutes  of  limitation  prescribing  a  time  after  which  a  plaintiff  shall  not  recover, 
unless  he  can  bring  himself  within  its  exceptions,  appertain  ad  tcmpus  et  modum  actionis 
instituendoc  and  not  ad  valorem  contractus.  Williams  v.  Jones,  13  East,  439  ;  Xash  v.  Tupper, 
1  Caines,  402  ;  Rwjgles  v.  Keelcr,  3  Johns.  263  ;  Pearsall  v.  Dwight,  2  I^Iass.  84  ;  Dccouche  v. 
Saveticr,  3  Johns.  Ch.  190,  218  ;  McCluny  v.  Silliman,  3  Peters,  276;  Hawkins  v.  Barney,  5 
Peters,  457  ;  Bank  of  the  United  States  v.  Donnally,  8  Peters,  361 ;  McElmoyle  v.  Cohen,  13 
Peters,  312. 

"There  is  nothing  in  Shelby  v.  Guy,  11  Whcaton,  361,  in  conflict  with  what  this  court 
decided  in  the  four  last-mentioned  cases.  Its  action  upon  the  point  has  been  uniform  and 
decisive.  In  cases  before  and  since  decided  in  England,  it  will  be  found  there  has  been  no 
fluctuation  in  the  rule  in  the  courts  there.  The  rule  is,  that  the  statute  of  limitations  of 
the  country  in  which  the  suit  is  brought  may  be  pleaded  to  bar  a  recovery  upon  a  contract 
made  out  of  its  political  jurisdiction,  and  that  the  limitation  of  the  Icr  loci  contractus  cannot 
be.  2  Bingham,  New  Cases,  202,  211.  Doe  v.  Lippmann,  5  Clark  k  Fin.  I,  \6,  11.  It  has 
become,  as  we  have  already  said,  a  fixed  rule  of  the  Jus  gentium  privatum,  unalterable,  in 
our  opinion,  either  in  England  or  in  the  States  of  the  United  States,  except  by  legislative 
enactment. 

"  We  will  not  enter  at  largo  into  the  learning  and  philosophy  of  the  question.  We 
remember  the  caution  given  by  Lord  Stair  in  the  supplement  to  his  Institutes  (p.  852), 
about  citing  as  authorities  the  works  and  publications  of  foreign  jurists.  It  is  appropriate 
to  the  occasion,  having  been  written  to  correct  a  mistake  of  Lord  Tenterden,  to  whom  no 
praise  could  be  given  which  would  not  be  deserved  by  his  equally  distinguished  coutem- 


IQ  OF  ACTIONS,  ETC. 

him,  till  liis  return  to  this  country.(^)  And  if  the  plaintiff  be  a  foreigner, 
and  do  not  come  to  Ungland  for  many  years  after  the  cause  of 

[  *17  ]  action  arises,  he  *still  has  six  years  after  his  coming  hither,  to 
bring  his  action  :(a)    And  if  he  never  come  to  England  himself, 

[g]  2  Str.  836.     Fitzjrib.  81,  S.  C. 

{a)  3  Wils.  145.     2  Blac.  Rep.  723,  S.  C. 

porary,  Judge  Story.  Lord  Stair  says, — ''There  is  in  Abbott's  Law  of  Shipping  (5th  edition, 
p.  365,)  a  singular  mistake  ;  and,  considering  the  justly  eminent  character  of  the  learned 
author  for  extensive,  sound,  and  practical  knowledge  of  the  English  law,  one  which  ought  to 
operate  as  a  lesson  on  this  side  of  the  Tweed,  as  well  as  on  the  other,  to  be  a  little  cautious 
in  citing  the  works  and  publications  of  foreign  jurists,  since,  to  comprehend  their  bearings, 
such  a  knowledge  of  the  foreign  law  as  is  scarcely  attainable  is  absolutely  requisite.  It  is 
magnificent  to  array  authorities,  but  somewhat  humiliating  to  be  detected  in  errors  con- 
cerning them  ; — yet  how  can  errors  be  avoided  in  such  a  case,  when  every  day's  experience 
warns  us  of  the  prodigious  study  necessary  lo  the  attainment  of  proficiency  in  our  own 
law?  My  object  in  adverting  to  the  mistake  in  the  work  referred  to  is,  not  to  depreciate 
the  author,  for  whom  I  entertain  unfeigned  respect,  but  to  show  that,  since  even  so  justly 
distinguished  a  lawyer  fails  when  he  travels  beyond  the  limits  of  his  own  code,  the  attempt 
must  be  infinitely  hazardous  with  others.' 

"  We  will  now  venture  to  suggest  the  causes  which  misled  the  learned  judge  in  Leroy  v. 
Croicninshield  into  a  conclusion,  that,  if  the  question  before  him  had  been  entirely  new,  his 
inclination  would  strongly  lead  him  to  declare,  that  where  all  remedies  are  barred  or  dis- 
charged by  the  lex  loci  co7iiracius,  and  have  operated  upon  the  case,  then  the  bar  may  be 
pleaded  in  a  foreign  tribunal,  to  repel  any  suit  brought  to  enforce  the  debt. 

"  We  remark,  first,  that  only  a  few  of  the  civilians  who  have  written  upon  the  point 
differ  from  the  rule,  that  statutes  of  limitation  relate  to  the  remedy  and  not  to  the  contract. 
If  there  is  any  case,  either  in  our  own  or  the  English  courts,  in  which  the  point  is  more 
discussed  than  it  is  in  Leroy  v.  Ci-oivnhishield,  we  are  not  acquainted  with  it.  In  every  case 
but  one,  either  in  England  or  in  the  United  States,  in  which  the  point  has  since  been  made, 
that  case  has  been  mentioned,  and  it  has  carried  some  of  our  own  judges  to  a  result  which 
Judge  Story  himself  did  not  venture  to  support. 

"  We  do  not  find  him  pressing  his  argument  in  Leroy  v.  Crowninshield  in  the  Conflict  of 
Laws,  in  which  it  might  have  been  appropriately  done,  if  his  doubts,  for  so  he  calls  them, 
had  not  been  removed.  Twenty  years  had  then  passed  between  them.  In  all  that  time, 
when  so  much  had  been  added  to  his  learning,  really  great  before,  that  by  common  consent 
he  was  estimated  in  jurisprudence  joarsMOTra/s,  we  find  him,  in  the  Conflict  of  Laws,  stating 
the  law  upon  the  point,  in  opposition  to  his  former  doubts,  not  in  deference  to  authority 
alone,  but  from  declared  conviction. 

"  The  point  had  been  examined  by  him  in  Leroy  v.  Crowninshield  without  any  considera- 
tion of  other  admitted  maxims  of  international  jurisprudence,  having  a  direct  bearing  upon 
the  subject.  Among  others,  that  the  obligation  of  every  law  is  confined  to  the  State  in 
which  it  is  established,  that  it  can  only  attach  upon  those  who  are  its  subjects,  and  upon 
others  who  are  within  the  territorial  jurisdiction  of  the  State  ;  that  debtors  can  only  be  sued 
in  the  courts  of  the  jurisdiction  where  they  are  ;  that  all  courts  must  judge  in  respect  to 
remedies  from  their  own  laws,  except  when  conventionally,  or  from  the  decisions  of  courts, 
a  comity  has  been  established  between  States  to  enforce  in  the  courts  of  each  a  particular 
law  or  principle.  When  there  is  no  positive  rule,  aflSrming,  denying,  or  restraining  the 
operation  of  foreign  laws,  courts  establish  a  comity  for  sucli  as  are  not  repugnant  to  the 
policy  or  in  conflict  with  the  laws  of  the  State  from  which  they  derive  their  organization. 
We  are  not  aware,  except  as  it  has  been  brought  to  our  notice  by  two  cases  cited  in  the 
argument  of  this  cause,  that  it  has  ever  been  done,  either  to  give  or  to  take  away  remedies 
from  suitors,  when  there  is  a  law  of  the  State  where  the  suit  is  brought  which  regulates 
remedies.  But  for  the  foundation  of  comity,  the  manner  of  its  exercise,  and  the  extent  to 
which  courts  can  allowably  carry  it,  we  refer  to  the  case  of  the  Bank  of  Augusta  v.  Earle, 
13  Peters,  519,  589  ;  Conflict  of  Laws,  Comity. 

''  From  what  has  just  been  said,  it  must  be  seen,  when  it  is  claimed  that  statutes  of  limi-- 
tation  operate  to  extinguish  a  contract,  and  for  that  reason  the  statute  of  the  State  in  which 
the  contract  was  made  may  be  pleaded  in  a  foreign  court,  that  it  is  a  point  not  standing 
alone,  disconnected  from  other  received  maxims  of  international  jurisprudence.  And  it 
may  well  be  asked,  before  it  is  determined  otherwise,  whether  contracts  by  force  of  the 
different  statutes  of  limitation  in  States  are  not  exceptions  from  the  general  rule  of  the  lex 
loci  contractus.  There  are  such  exceptions  for  dissolving  and  discharging  contracts  out  of 
the  jurisdiction  in  which  they  were  made.  The  limitations  of  remedies,  and  the  forms  and 
modes  of  suit,  make  such  an  exception.  Confl.  of  Laws,  271,  and  524  to  527.  We  may 
then  infer  that  the  doubts  expressed  in  Leroy  v.  Crowninshield  would  have  been  withheld, 
if  the  point  had  been  considered  in  the  connection  we  have  mentioned. 


OF  ACTIONS,  ETC.  16 

he  has  always  a  right  of  action  while  he  lives  abroad  ;  and  after  his  death, 
his  executors  or  administrators  are  in  the  same  situation. 

"  We  have  found,  too,  that  several  of  the  civilians  who  wrote  upon  the  question,  did  so 
without  having  kept  in  mind  the  diflerence  between  the  positive  and  negative  prescription 
of  the  civil  law.  In  doing  so,  some  of  them — not  regarding  the  latter  in  its  more  extended 
signification  as  including  all  those  bars  or  exceptions  of  law  or  of  fact  which  may  be  opposed 
to  the  prosecution  of  a  claim,  as  well  out  of  the  jurisiliction  in  which  a  contract  was  made 
as  in  it — were  led  to  the  conclusion,  that  the  prescription  was  a  part  of  the  contract,  and 
not  the  denial  of  a  remedy  for  its  enforcement.  It  may  be  as  well  here  to  state  the  differ- 
ence between  the  two  prescriptions  in  the  civil  law.  Positive,  or  the  Roman  usucnpdo,  is 
the  acquisition  of  property,  real  or  personal,  immovable  or  movable,  by  the  continued 
possession  of  the  acquirer  for  such  a  time  as  is  described  by  the  law  to  be  sufficient. 
Erskine's  Inst.  556.  '  Adjeclio  dominii  per  continual ionem  possession^  temjwris  Icgi  definiti.' 
Dig.  3. 

"  Negative  prescrii)tion  is  the  loss  or  forfeiture  of  a  right,  by  the  proprietor's  neglecting 
to  exercise  or  prosecute  it  during  the  whole  period  which  the  law  hath  declared  to  be 
sufficient  to  infer  the  loss  of  it.  It  includes  the  former,  and  applies  also  to  all  those  demands 
which  are  the  subject  of  personal  actions.     Erskine's  Inst.  560,  and  3  Barge,  26. 

"  Most  of  the  civilians,  however,  did  not  lose  sight  of  the  differences  between  these 
prescriptions,  and  if  their  reasons  for  doing  so  had  been  taken  as  a  guide,  instead  of  some 
expressions  used  by  them,  in  respect  to  what  may  be  presumed  as  to  the  extinction  or  pay- 
ment of  a  claim,  while  the  plea  in  bar  is  pending,  we  do  not  think  that  any  doubt  would 
have  been  expressed  concerning  the  correctness  of  their  other  conclusion,  that  statutes  of 
limitation  in  suits  upon  contracts  only  relate  to  the  remedy.  But  that  was  not  done,  and, 
from  some  expressions  of  Pothier  and  Lord  Karnes,  it  was  said,  'If  the  statute  of  limitations 
docs  create,  propria  vigore,  a  presumption  of  the  extinction  or  payment  of  the  debt,  which  all 
nations  ought  to  regard,  it  is  not  easy  to  see  why  the  presumption  of  such  payment,  thus 
arising  from  the  lex  loci  contractus,  should  not  be  as  conclusive  in  every  other  place  as  in  the 
place  of  the  contract.'  And  that  was  said  in  Leroy  v.  Crowninshield,  in  opposition  to  the 
declaration  of  both  of  those  writers,  that  in  any  other  place  than  that  of  the  contract  such 
a  presumption  could  not  be  made  to  defeat  a  law  providing  for  proceedings  upon  suits. 
Here,  turning  aside  for  an  instant  from  our  main  purpose,  we  find  the  beginning  or  source 
of  those  constructions  of  the  English  statutes  of  limitation  which  almost  made  them  useless 
for  the  accomplishment  of  their  end.  AVithin  a  few  years,  the  abuses  of  such  constructions 
have  been  much  corrected,  and  we  are  now,  in  the  English  and  American  courts,  nearer  to 
the  legislative  intent  of  such  enactments. 

"  But  neither  Pothier  nor  Lord  Kames  meant  to  be  understood,  that  the  theory  of  statutes 
of  limitation  purported  to  afford  positive  presumptions  of  payment  and  extinction  of  con- 
tracts, according  to  the  laws  of  the  place  where  they  are  made.  The  extract  which  was 
made  from  Pothier  shows  his  meaning  is,  that,  when  the  statute  of  limitations  has  been 
pleaded  by  a  defendant,  the  presumption  is  in  his  favour  that  he  has  extinguished  and 
discharged  his  contract,  until  the  plaintiff  overcomes  it  by  proof  that  he  is  within  one  of 
those  exceptions  of  the  statute  which  takes  it  out  of  the  time  after  which  he  cannot  bring 
a  suit  to  enforce  judicially  the  obligation  of  the  defendant.  The  extract  from  Lord  Kames 
only  shows  what  may  be  done  in  Scotland  when  a  process  has  been  brought  for  payment 
of  an  English  debt,  after  the  English  prescription  has  taken  place.  The  English  statute 
cannot  be  pleaded  in  Scotland  in  such  a  case,  but,  according  to  the  law  of  that  forum,  it 
may  be  pleaded  that  the  debt  is  presumed  to  have  been  paid.  And  it  makes  an  issue,  in 
which  the  plaintiff  in  the  suit  may  show  that  such  a  presumption  does  not  apply  to  his 
demand  ;  and  that  without  any  regard  to  the  prescription  of  time  in  the  English  statute  of 
limitation.  It  is  upon  this  presumption  of  payment  that  the  conclusion  in  Leroy  v.  Crown- 
inshield was  reached,  and  as  it  is  now  universally  admitted  that  it  is  not  a  correct  theory 
for  the  administration  of  statutes  of  limitation,  we  may  say  it  was  in  fact  because  that 
theory  was  assumed  in  that  case  that  doubts  in  it  were  expressed,  contrary  to  the  judgment 
which  was  given,  in  submission  to  what  was  admitted  to  be  the  law  of  the  case.  What  we 
have  said  may  serve  a  good  purpose.  It  is  pertinent  to  the  point  raised  by  the  pleading 
in  the  case  before  us,  and  in  our  judgment  there  is  no  error  in  the  District  Court's  having 
sustained  the  demurrer. 

"  Before  concluding,  we  will  remark  that  nothing  has  been  said  in  this  case  at  all  in  conflict 
with  what  was  said  by  this  court  in  Shelb)/  v.  Guy,  11  Whcaton,  361.  The  distinctions 
made  by  us  here  between  statutes  giving  a  right  to  property  from  possession  for  a  certain 
time,  and  such  as  only  take  away  remedies  for  the  recovery  of  property  after  a  certain  time 
has  passed,  confirm  it.  In  Shelly  v.  Guy,  this  court  declared  that,  as  by  the  laws  of 
Virginia  five  years'  bond  fide  possession  of  a  slave  constitutes  a  good  title  upon  which  the 
possessor  may  recover  in  detinue,  such  a  title  may  be  set  up  by  the  vendee  of  such  possessor 
in  the  courts  of  Tennessee  as  a  defence  to  a  suit  brought  by  a  third  party  in  those  courts. 
The  same  had  been  previously  ruled  in  this  court  in  Brent  v.  Chapman,  5  Cranch,  358 ;  and 


15  OF  ACTIONS,  ETC. 

The  statute  cannot  be  a  bar  in  any  ease,  unless  the  time  of  limitation 
be  expired  after  there  hath  been  a  complete  cause  of  action  :[b]  as  if  a  man 

it  is  the  rule  in  all  cases  where  it  is  declared  by  statute  that  all  rights  to  debts  due  more 
than  a  prescribed  term  of  years  shall  be  deemed  extinguished,  and  that  all  titles  to  real  and 
personal  property  not  pressed  within  the  prescribed  time  shall  give  ownership  to  an  adverse 
possessor.  Such  a  law,  though  one  of  limitation,  goes  directly  to  the  extinguishment  of  the 
debt,  claim,  or  right,  and  is  not  a  bar  to  the  remedy.  Lincoln  v.  Batlelle,  6  Wend.  475. 
Confl.  of  Laws,  582. 

"In  Lincoln  v.  Battelle,  6  Wend.  475,  the  same  doctrine  was  held.  It  is  stated  in  the 
Conflict  of  Laws,  582,  to  be  a  settled  point.  The  courts  of  Louisiana  act  upon  it.  We 
could  cite  other  instances  in  which  it  has  been  announced  in  American  courts  of  the  last 
resort.  In  the  cases  of  Z>e  la  Vega  v.  Vianna,  1  Barn.  &  Adol.  284,  and  the  British  Linen 
Company  v.  Drunimond,  10  Barn.  &  Cres.  903,  it  is  said,  that,  if  a  French  bill  of  exchange 
is  sued  in  England,  it  must  be  sued  on  according  to  the  laws  of  England,  and  there  the 
English  statute  of  limitations  would  form  a  bar  to  the  demand  if  the  bill  had  been  due  for 
more  than  six  years.  In  the  case  of  Doe  v.  Lippmann,  5  Clark  &  Fin.  1,  it  was  admitted  by 
the  very  learned  counsel  who  argued  that  case  for  the  defendants  in  error,  that,  though 
the  law  for  expounding  a  contract  was  the  law  of  the  place  in  which  it  was  made,  the 
remedy  for  enforcing  it  must  be  the  law  of  the  place  in  which  it  is  sued.  In  that  case  will 
be  found,  in  the  argument  of  Lord  Brougham  before  the  House  of  Lords,  his  declaration  of 
the  same  doctrine,  sustained  by  very  cogent  reasoning,  drawn  from  what  is  the  actual  intent 
of  the  parties  to  a  contract  when  it  is  made,  and  from  the  inconveniences  of  pursuing  a 
different  course.  In  Beckford  and  others  v.  Wade,  17  Vesey,  87,  Sir  William  Grant,  acknow- 
ledging the  rule,  makes  the  distinction  between  statutes  merely  barring  the  legal  remedy, 
and  such  as  prohibit  a  suit  from  being  brought  after  a  specified  time.  It  was  a  case  arising 
under  the  possessory  law  of  Jamaica,  which  converts  a  possession  for  seven  years  under  a 
deed,  will,  or  other  conveyance,  into  a  positive  absolute  title,  against  all  the  world, — without 
exceptions  in  favour  of  any  one  or  any  right,  however  a  party  may  have  been  situated  during 
that  time,  or  whatever  his  previous  right  of  property  may  have  been.  There  is  a  statute  of 
the  same  kind  in  Rhode  Island.  2  R.  I.  Laws,  363,  364,  ed.  1822.  In  Tennessee,  there  is 
an  act  in  some  respects  similar  to  the  possessory  law  of  Jamaica  ;  it  gives  an  indefeasible 
title  in  fee  simple  to  lands  of  which  a  person  has  had  possession  for  seven  years,  excepting 
only  from  its  operation,  infants,  feme  coverts,  non  compotes  mentis,  persons  imprisoned  or 
beyond  the  limits  of  the  United  States  and  the  Territories  thereof,  and  the  heirs  of  the 
excepted,  provided  they  bring  actions  within  three  years  after  they  have  a  right  to  sue. 
Act  of  November  16,  1817,  ch.  28,  ^§  1,  2.  So  in  North  Carolina,  there  is  a  provision  in 
the  Act  of  1715,  ch.  17,  §  2,  with  the  same  exceptions  as  in  the  act  of  Tennessee,  the  latter 
being  probably  copied  substantially  from  the  former.  Thirty  years'  possession  in  Louisiana 
prescribes  land,  though  possessed  without  title  and  maid  fide. 

"  We  have  mentioned  those  acts  in  our  own  States,  only  for  the  purpose  of  showing  the 
difference  between  statutes  giving  title  from  possession,  and  such  as  only  limit  the  bringing 
of  suits.  It  not  unfrequently  happens  in  legislation,  that  such  sections  are  found  in  statutes 
for  the  limitation  of  actions.  It  is  in  fact  because  they  have  been  overlooked,  that  the 
distinction  between  them  has  not  been  recognized  as  much  as  it  ought  to  have  been  in  the 
discussion  of  the  point,  whether  a  certain  time  assigned  by  a  statute,  within  which  an  action 
must  be  brought,  is  a  part  of  the  contract,  or  solely  the  remedy.  The[rule  in  such  a  case 
is,  that  the  obligations  of  the  contract  upon  the  parties  to  it,  except  in  well-known  cases, 
are  to  be  expounded  by  the  lex  loci  contractus.  Suits  brought  to  enforce  contracts,  either  in 
the  State  where  they  were  made,  or  in  the  courts  of  other  States,  are  subject  to  the  remedies 
of  the  forum  in  which  the  suit  is,  including  that  of  statutes  of  limitations."  Townsc7id  v. 
Jamison,  9  How.  S.  C.  Rep.  413. 

[b]  "  Where  a  debt  due  by  specialty  has  been  unclaimed,  and  without  recognition,  for 
twenty  years,  in  the  absence  of  any  explanatory  evidence,  it  is  presumed  to  have  been  paid. 
The  jury  may  infer  the  fact  of  payment  from  the  circumstances  of  the  case,  within  that 
period;  but  the  presumption  of  law  does  not  attach  till  the  twenty  years  are  expired.  This 
rule,  with  its  limitation  of  twenty  years,  was  first  introduced  into  the  courts  of  law  by  Sir 
Matthew  Hale,  and  has  since  been  generally  recognized,  both  in  the  courts  of  law  and  of 
equity.  It  is  applied  not  only  to  bonds  for  the  payment  of  money,  but  to  mortgages,  judg- 
ments, warrants  to  confess  judgment,  decrees,  statutes,  recognizances,  and  other  matters  of 
record,  when  not  affected  by  statutes ;  but  with  respect  to  all  other  claims  not  under  seal 
nor  of  record,  and  not  otherwise  limited,  whether  for  the  payment  of  money  or  the  per- 
formance of  specific  duties,  the  general  analogies  are  followed  as  to  the  application  of  the 
lapse  of  time,  which  prevail  on  kindred  subjects.  But  in  all  these  cases  the  presumption 
of  payment  may  be  repelled  by  any  evidence  of  the  situation  of  the  parties,  or  other  cir- 
cumstance tending  to  satisfy  the  jury  that  the  debt  is  still  due."  1  Greenleaf  on  Evid.  sec. 
39.  Matthews  on  Presump.  Evid.  ch.  19,  20.  Best  on  Presump.  Evid.  p.  1,  chaps.  2  &  3. 
1  Phil,  on  Evid.  p.  160,  Cowen  &  Hill's  notes. 


OF  ACTIONS,  ETC.  17 

promise  to  pay  ten  pounds  to  J.  S.  "when  he  comes  from  Borne,  or  when 
he  marries,  and  ten  years  after  J.  S.  marries,  or  comes  from  Rome,  the 
right  of  action  accrues  from  the  happening  of  the  contingency,  from  which 
time  the  statute  will  begin  to  run,  and  not  from  the  time  of  the  promise. (6) 
So  in  assumpsit,  where  the  plaintifi"  declared  that  the  defendant,  in  con- 
sideration that  the  plaintiff,  at  the  defendant's  request,  would  receive  A. 
and  B.  into  his  house  as  guests,  and  diet  them,  promised,  kc,  the  defend- 
ant pleaded  non   assu7npsit   infra  sex   annos,  upon  Avhich  the  plaintiff 
demurred,  and  it  was  held  no  plea ;  for  the  defendant  cannot  in  such  case 
plead  non  assumpsit  infra  sex  annos,  but  aetio  non  accrevit  infra  sex 
annos  ;  for  it  is  not  material  when  the  promise  was  made,  if  the  cause  of 
action  be  within  the  six  years,  and  the  dieting  might  belong  afterwards.(c) 
So  if  the  captain  of  a  ship  insured,  barratrously  carry  her  out  of  the 
course  of  the  voyage,  procure  her  to  be  condemned  in  a  Vice-Admiralty 
court,  sell  her,  and  deliver  her  up  to  the  purchaser,  it  is  only  from  this 
last  event  that  the  statute  of  limitations  begins  to  run,  as  between  the 
assured  and  the  underwriter. (cZ)     And  no  debt  accrues  on  a  bill  payable 
at  sight,  until  it  be  presented  for  payment :  Therefore,  the  statute  of  limi- 
tations is  no  bar  to  an  action  on  such  a  bill,  unless  it  has  been  presented 
for  payment  six  years  before  the  action  commenced.(e)     So,  the  statute 
is  no  bar  to  an  action  on  a  promissory  note,  payable  twenty  four  months 
after  demand,  if  presented  for  payment  within  six  years  before  the  com- 
mencement of  the  action.(/)     But  a  promissory  note,  payable  on  demand, 
is  payable  immediately  ;  and  the  statute  of  limitations  runs  from  the  date 
of  the  note,  and  not  from  the  time  of  demand.((/)[l]    And  where  the  breach 
of  a  contract  is  attended  with  special  damage,  the  statute  runs  from  the 
time  of  the  breach,  which  is  the  gist  of  the  action,  and  not  from  the  time 
when  it  was  discovered,(7i)  or  the  damage  arose.(2)    In  an  action  by  an 
administrator,  upon   a  bill  of  exchange   payable  to   the  intestate,  but 
accepted  after  his  death,  it  was  hoklen,  that  the  statute  of  limi- 
tations begins  to  run  from  *the  time  of  granting  the  letters    [  *18  ] 
of  administration,  and  not  from  the  time  the  bill  becomes  due ; 
there  being  no  cause  of  action,  until  there  is  a  party  capable  of  suing.(a)[2] 
There  is  is  no  statute  of  limitations  in  an  action  of  deht  on  bond.(i) 

(J)  Godb.,  437.     1  Lev.,  48.     1  Blac.  Rep.,  354.     1  H.  Blac,  G31. 

(c)  2  Salk.,  422.  2  Ld.  Raym.  838,  S.  C,  and  see  Ballantine  on  the  Statute  of  Limita- 
tions, p.  215,  &c. 

{d)  1  Camp.,  539,  and  see  4  Esp.  Rep.  18.  [c)  2  Tauut.,  323. 

(/)  1  Rv.  &  Mo.,  388.     8  Dowl.  &  Ryl.,  347,  S.  C. 

\g)  Christie  v.  Fonseck,  Sit.  Lond.  after  M.  T.,  52  Geo.  III.,  C.  P.,  per  Mansfield,  Ch.  J.  Sel. 
Ni.  Pri.,  6  Ed.,  136,  36h  1  Ves.,  344,  accord.,  but  sec  Hardr.,  36.  1  Mod.,  89.  15  Vin. 
Abr.  tit.  Limitatiou,  P.  14.     M'Clel.  &  Y.,  338. 

(/t)  3  Barn.  &  Aid.,  626,  and  see  4  Moore,  508.  2  Brod.  &  Bing.,  73,  S.  C.  5  Barn.  & 
Cres.,  259.     8  Dowl.  &  Ryl.,  14.     2  Car.  &  P.,  238,  S.  C.  accord. 

(i)  3  Barn.  &  Aid.,  288.  (a)  5  Barn.  &  Aid.,  204.  (6)  Cowp.,  109. 

[1]  7  Har.  &  Johns.,  14.  So,  also,  a  receipt  given  for  a  sum  of  money  borrowed,  whereby 
the  person  borrowing  undertook  to  return  the  money  "  when  called  on  to  do  so,"  creates  a 
cause  of  action  from  its  date,  bearing  interest,  and  against  which  the  act  of  limitations 
begins  to  run  from  that  time.     1  Har.  &  Gill,  439. 

[2]  When  the  statute  once  begins  to  run,  no  subsequent  circumstance  stops  its  operation. 
It  does  not,  however,  begin  to  operate  unless  there  is  a  person,  in  esse,  competent  to  sue  at 
the  time  the  cause  of  action  accrues.  Huff's  Adm'r  v.  JJull,  7  Har.  &  J.  14.  So,  in  trover, 
where  the  conversion  of  the  property  of  the  deceased  was  before  letters  of  administration 
were  granted,  the  statute  runs  only  from  the  time  a  right  vested  in  some  one  to  demand  it. 
Ifaslell's  Adm'r  v.  Glenn,  Id.  lb.  'Hepburn's  Adm'r  v.  Scwcll,  4  Id.  393,  430.  See  Augell  on 
Limitations,  §  477,  478. 


18  OF  ACTIONS,  ETC. 

But  where  the  bond  has  been  given  more  than  twenty  years  before  the 
commencement  of  the  action,  and  no  interest  has  been  paid  upon  it,  nor 
any  acknowledgment  by  the  obligor  of  the  existence  of  the  debt,  during 
that  period,  the  law  in  general  will  presume  it  to  be  satisfied  ;(c)  particu- 
larly if  the  debt  be  large,  and  the  obligor  has  been  all  along  in  good 
circumstances. (cZ)  And  the  defendant  shall  have  the  benefit  of  this  pre- 
sumption on  the  plea  of  solvit  ad  diem,  unless  interest  appears  to  have 
been  paid  upon  the  bond,  after  the  time  mentioned  in  the  condition ;  in 
which  case  he  must  plead  solvit  post  diem.[e)  So,  where  a  bond  has  been 
given,  or  interest  paid  upon  it,  within  twenty  years,  the  law  in  some  cases 
will  presume  it  to  be  satisfied ;  as  where  it  has  been  given  eighteen  or 
nineteen  years,  and  in  the  mean  time  an  account  has  been  settled  between 
the  parties,  without  taking  any  notice  of  the  demand :(/)  but  in  that  case 
the  presumption  must  be  fortified  by  evidence  of  some  auxiliary  circum- 
stances ;(^)  though,  after  a  considerable  length  of  time,  slight  evidence  is 
said  to  be  sufiicient. (7i)  The  doctrine  of  presumption  is  said  to  have  been 
first  taken  up  by  Lord  Hale^{i)  who  thought  the  lapse  of  time  a  circum- 
stance whence  a  jury  might  presume  payment,  [a]  In  this  he  was  followed 
by  Lord  Holt,  who  held  that  if  a  bond  be  of  twenty  years  standing,  and 
no  demand  proved  thereon,  or  good  cause  of  so  long  forbearance  shown, 
on  solvit  ad  diem,  he  should  intend  it  paid.(^)     This  doctrine  was  after- 

(c)  6  Mod.,  22.     11  Mod.,  2.     1  Str.,  652.     3  P.  Wms.,  395,  &c.     1  Bur.,  434.     1  Blac. 
Rep.,  532.     4  Bur.,  1963.     Cowp.,  109.     1  Durnf.  &  East,  270. 

{d)  1  Durnf.  &  East,  271,2.  (e)  1  Str.,  652. 

(/)  1  Bur.,  434.     1  Durnf.  &  East,  271. 

(V)  Cowp.,  214.     1  Durnf.  &  East,  270.     1  Camp.,  27. 

{h)  1  Durnf.  &  East,  272. 

(i)  Id.,  271,  but  see  1  Chan.  Rep.,  42,  47,  and  the  cases  referred  to  in  Yin.  Abr.  tit. 
Length  of  Time,  52,  &c. 

{k)  6  Mod.,  22.     11  Mod.,  2. 

» 

[a]  a  debt  once  proved  to  have  existed  is  presumed  to  continue,  unless  payment,  or 
some  other  discharge,  be  either  proved  or  established  from  circumstances.  A  receipt 
under  hand  and  seal  is  the  strongest  evidence  of  payment,  for  it  amounts  to  an  estoppel, 
conclusive  on  the  party  making  it ;  but  a  receipt  under  band  alone,  or  a  verbal  admission 
of  payment,  is  in  general  on\y  j^rima  facie  evidence  of  it,  and  may  be  rebutted.  Of  the  pre- 
sumptive proof  of  payment,  the  most  obvious  is  that  of  no  demand  having  been  made  for 
a  considerable  time ;  and  previous  to  the  3  &  4  Will.  4,  c.  42,  §  3,  the  courts,  by  analogy 
to  the  Statute  of  Limitations,  had  established  the  artificial  presumption,  that,  where  pay- 
ment of  a  bond  or  other  specialty  was  not  demanded  for  twenty  years,  and  there  was  no 
payment  of  interest  or  other  circumstance  to  show  that  it  was  still  in  force,  payment  or 
release  ought  to  be  presumed  by  a  jury.  By  that  statute  it  is  enacted,  that  "all  actions  for 
debt,  for  rent  upon  an  indenture  of  demise,  all  actions  of  covenant  or  debt  Ujpon  any  bond 
or  other  specialty,  and  all  actions  of  debt  or  sci7-e  faeias  upon  any  recognizance  that  shall 
be  sued  or  brought  at  any  time  after  the  end  of  that  session  of  parliament,  shall  be  com- 
menced and  sued  within  ten  years  after  the  end  of  that  session,  or  within  twenty  years 
after  the  cause  of  action,  but  not  after."  Even  though  this  statute  be  not  pleaded,  the  fact 
of  payment  may  still  be  presumed  by  a  jury  from  lapse  of  time,  or  other  circumstances 
■which  render  the  fact  probable,  as,  for  instance,  the  settlement  of  accounts  subsequent  to 
the  accruing  of  the  debt,  and  in  which  no  mention  is  made  of  it.  Where  a  landlord  gives  a 
receipt  for  rent  due  up  to  a  certain  day,  all  former  arrears  are  presumed  to  have  been  paid ; 
for  ii  is  likely  that  he  would  take  the  debt  of  longest  standing  first.  Previous  to  the  statute, 
it  was  laid  down  by  Lord  EUenborough,  in  Calsell  v.  Budd,  1  Campb.  27,  that,  "  after  a  lapse 
of  twenty  years,  a  bond  will  be  presumed  to  be  satisfied;  but  there  must  either  be  a  lapse 
of  twenty  years,  or  a  less  time,  coupled  with  some  circumstance  to  strengthen  the  presump- 
tion." In  Brembridge  v.  Osborn,  1  Stark,  374,  also,  the  same  learned  judge  told  the  jury, 
that,  where  there  is  a  competition  of  evidence  as  to  the  question,  whether  a  security  has  or 
has  not  been  satisfied  by  payment,  the  possession  of  the  uncancelled  security  by  the  claimant 
ought  to  turn  the  scale  in  his  favour,  since,  in  the  ordinary  course  of  dealing,  the  security  is 
given  up  to  the  party  who  pays  it.     Best  on  Presump.  sec.  127. 


OF  ACTIONS,  ETC.  18 

wards  adopted  by  Lord  Raymond^  in  the  case  of  Constable  y.  Somerset. {!) 
And  it  is  not  confined  to  actions  of  debt  on  bond ;  but  the  like  presump- 
tion has  been  made,  after  twenty  years,  in  an  action  of  debt,{m)  or  scire 
facias,{n)  on  a  judgment  :[1]  and  in  a  modern  case,(o)  where  it  appeared 
that  the  bond  was  not  satisfied,  the  jury,  under  particular  circumstances, 
and  after  a  great  lapse  of  time,  presumed  it  to  have  been  released.  So,  in 
assumpsit,  where  the  statute  of  limitations  is  not  pleaded  or  replied,  the 
jury  may  presume,  from  length  of  time  and  other  circumstances,  that  the 
debt  has  been  satisfied. (^j) 

*The  presumption  of  payment,  however,  may  in  general  be  re- 
butted, by  showing  that  interest  has  been  paid  on  the  bond  within  [  *19  ] 
twenty  years,[A]  or  that  the  obligor  has  acknowledged  the  exis- 
tence of  the  debt  within  that  pcriod,(rt)  or  that  he  was  in  bad  circum- 
stances, (?>)  or  the  demand  trifling, (c)  or  that  he  has  ever  since  his  acknow- 
ledgment resided  abroad. (^Z)  But  where  there  was  no  evidence  of  payment, 
or  of  any  sort  of  acknowledgment,  for  more  than  thirty  years,  the  pre- 
sumption arising  from  lapse  of  time,  of  a  judgment  being  satisfied,  was 
holden  not  to  be  rebutted,  by  evidence  of  the  defendant  having  been  in 
embarrassed  circumstances,  and  in  the  opinion  of  those  who  knew  him, 
incapable  of  paying  the  debt  secured  by  the  judgment. (f)  In  order  to 
prove  the  payment  of  interest,  or  a  part  of  the  principal,  an  indorsement 
made  by  the  obligee  upon  the  bond,  within  twenty  years,  is  allowed  to  be 
evidence ;(/)  but  an  indorsement  made  after  the  presumption  had  taken 
place,  is  not  admissible. (^)  And,  by  the  statute  "J  Geo.  IV.,  c.  14,  §  3, 
"  no  indorsement  or  memorandum  of  any  payment,  written  or  made  after 
the  time  appointed  for  that  act  to  take  effect,  upon  any  promissory  note, 
bill  of  exchange,  or  other  writing,  by  or  on  the  behalf  of  the  party  to  whom 
such  payment  shall  be  made,  shall  be  deemed  sufficient  proof  of  such  pay- 
ment, so  as  to  take  the  case  out  of  the  operation  of  the  statute  of  limita- 
tions." 

In  actions  for  ivrongs,  particular  times  of  limitation  are  frequently 
appointed  by  statute,  different  from  those  in  common  cases.  Thus,  by  the 
statute  24  Geo.  II.,  c.  44,  §  8,  it  is  provided,  that  "  no  action  shall  be 
brought  against  any  justice  of  the  peace,  for  any  thing  done  in  the  cxecu- 

{l)  Hil.  1  Geo.  II.,  at  Guildhall.  (m)  1  Str.,  639. 

(;j)  Peakc's  Evid.,  5  Ed.,  28.  Curds  v.  Lord  Grandison,  cor.  Ld.  Kenyon,  Sit.  Westm., 
after  M.,  37  Geo.  III.,  S.  P. 

(o)  Washington  aud  Brymcr,  H.  42  Geo.  III.  K.  B.  Peake's  Evid.  5  Ed.  Appendix, 
XXV.,  S.  C. 

[p)  2  Stark.  Ni.  Pri.  407,  and  see  5  Esp.  Rep.  22.  1  Taunt.  572,  but  see  1  Dowl.  & 
Ryl.  16. 

'(a)  Cowp.  109.     1  Durnf.  &  East,  271,  2.  {b)  Cowp.  109. 

(c)  Id.  214.  {d)  1  Stark.  Ni.  Pri.  101.  (c)  1  Caiupb.  217. 

(/)  2  Sir.  826.  2  Ld.  Raym.  1370.  8  Mod.  278.  Se!.  Cas.  Ev.  152.  3  Bro.  P.  C.  535, 
B.C. 

{g)  2  Str.  827.     2  Vez.  43,  ace.     1  Barnard,  K.  B.  432,  cotitra. 

[1]  14  Serg.  &Rawle,  15.  2  Con3t.  Rep.  S.  Car.  617,  146.  2  South.  Rep.  721,  accord. 
And  satisfaction  of  a  judgment  after  the  lapse  of  twenty  years,  is  a  presumption  of  law  upon 
the  facts;  if  there  are  no  facts  or  circumstances  to  account  for  the  delay,  it  is  not  the  duty 
of  the  court  to  suV)mit  the  question,  as  an  open  one  to  the  jury.  14  Serg.  &  R.  15.  If  the 
original  judgment  were  against  several  defendants,  and  on  a  scire  facias,  the  return  as  to 
one,  is  nihil  hahct,  and  judgment  is  entered  against  him  by  default,  this  is  not  a  circumstance 
to  affect  the  presumption  of  payment,  as  an  implied  confession  of  judgment.     Id.  ibid. 

[a]  See  Best  on  Presurap.,  §  137  ;  2  Green!,  on  Ev.,  g  528. 


19  OF  ACTIONS,  ETC. 

tion  of  his  office,  or  against  any  constable,  headhorough,  or  other  officer, 
or  person  acting  bj  his  order  and  in  his  aid,  unless  commenced  within  six 
calender  months  after  the  act  committed."  In  the  construction  of  this 
statute,  it  seems  that  the  months  are  to  be  reckoned  inclusive  of  the  day 
of  committing  the  act.(7^)  And  where  a  constable,  acting  under  a  warrant 
commanding  him  to  take  the  goods  of  ^.,  takes  the  goods  of  B.,  believing 
them  to  belong  to  A.,  he  is  entitled  to  the  protection  of  the  statute ;  and 
an  action  therefore  must  be  brought  against  him,  within  six  calendar 
months. (z)  And,  in  like  manner,  where  constables,  under  a  warrant  to 
search  a  house  for  black  cloth  which  had  been  stolen,  finding  no  black 
cloth,  took  cloth  of  other  colours,  and  carried  it  before  a  magistrate, 
refusing  at  the  same  time  to  tell  the  owner  of  the  house  searched,  whether 
they  had  any  warrant  or  no ;  the  court  of  Common  Pleas  held,  that  they 
were  within  the  protection  of  the  statute,  and  that  an  action  against  them 
ought  to  have  been  commenced  within  six  months  after  the  grievance 
complained  of.(/(^)  So,  where  a  constable,  having  a  magistrate's  warrant 
of  distress,  to  levy  a  church  rate,  under  the  statute  53  Geo.  III.,  c.  127, 
§  7,  broke  the  door  of,  and  entered  the  plaintifif's  dwelling  house ;  the 

court  held,  that  although  he  thereby  exceeded  iiis  authority,  yet 
[   *20   ]  that  no  action  could  be  maintained,  after  the  expiration  of  ^three 

calendar  months. («)  But,  in  the  case  of  a  continued  imprison- 
ment, the  magistrate  is  liable  to  answer  in  an  action  for  such  part  of  the 
imprisonment  suffered  under  his  warrant,  as  was  within  six  calendar 
months  before  the  action  commenced  against  him. (5)  And  where  an 
action  of  assault  and  false  imprisonment  was  brought  against  a  constable, 
who  had  exceeded  his  authority,  it  being  objected  that  the  plaintiff  had 
not  shown  the  action  commenced  within  six  months,  according  to  the 
above  statute.  Lord  Kenyon  over-ruled  the  objection,  on  this  distinction ; 
that  the  defendant  acted  colore  officii,  and  not  virtute  officii;  and  said, 
that  it  had  often  been  held,  that  a  constable  acting  colore  officii  was  not 
protected  by  the  statute,  where  the  act  committed  is  of  such  a  nature  that 
the  office  gives  him  no  authority  to  do  it :  in  the  doing  of  that  act  he  is 
not  to  be  considered  as  an  officer  :  but  where  a  man  doing  an  act  within 
the  limits  of  his  official  authority,  exercises  that  authority  improperly,  or 
abuses  the  discretion  placed  in  him,  to  such  cases  the  statute  extends : 
The  distinction  is,  between  the  extent  and  the  abuse  of  the  authority,  (c) 

By  the  statute  28  Geo.  III.  c.  37,  §  23,  "  if  any  action  or  suit  shall  be 
brought  or  commenced  against  any  person  or  persons,  for  any  thing  by 
him  or  them  done  in  pursuance  of  that  or  any  other  act  or  acts  of  parlia- 
ment then  in  force,  or  thereafter  to  be  made,  relating  to  his  majesty's 
revenues  of  customs  and  excise,  or  either  of  them,  such  action  or  suit 
shall  be  commenced  within  three  months  next  after  the  matter  or  thing 
done."(c?)  And,  by  the  statute  6  Geo.  IV.  c.  108,  §  97,  "  if  any  action 
or  suit  shall  be  brought  or  commenced  against  any  officer  of  the  army, 
navy,  marines,  customs  or  excise,  or  against  any  person  acting  under  the 

{K)  4  Moore,  465.  [i)  3  Barn.  &  Aid.  330. 

\k)  5  Moore,  322.  2  Brod.  &  Bing.  619,  S.  C,  and  see  7  Moore,  51.  3  Bred.  &  Bing.  239. 
S.  C.  («)  1  Barn.  &  Aid.  227.  {b)  12  East,  67. 

(c)  2  Esp.  Rep.  542,  m  notis,  and  see  2  Chit.  Rep.  140.  6  Barn.  &  Cres.  351.  7  Barn.  & 
Cres.  394.     1  Man.  &  Ryl.  102,  S.  C.     Id.  211.     Post,  29,  31. 

(d)  See  also  the  former  statutes  of  23  Geo.  III.,  c.  70,  §  34,  24  Geo.  III.,  sess.  2,  c.  47,  \  35, 
39,  which  latter  statute,  however,  is  repealed  by  6  Geo.  IV.,  c.  105.  And  for  the  construc- 
tion of  the  former  of  these  statutes,  see  2  Dowl.  &  Ryl.  9. 


OF  ACTIONS,  ETC.  20 

direction  of  the  commissioners  of  his  majesty's  customs,  for  any  thing 
done  in  the  execution  of  or  by  reason  of  his  office,  such  action  or  suit 
shall  be  brought  or  commenced  within  six  months  next  after  the  cause  of 
action  shall  have  arisen,  and  not  afterwards."  On  the  former  of  these 
statutes,  it  has  been  holden,  tliat  the  action  must  be  commenced  Avithin 
three  months  from  the  time  of  the  original  seizure,  notwithstanding  the 
pendency  of  process  in  the  Exchcqucr.(c)  And  as  the  statute  28  Geo. 
III.  c.  37,  is  not  repealed  by  the  6  Geo.  IV.  c.  105,  it  seems  that  actions 
for  any  thing  done  in  pursuance  of  the  acts  relating  to  the  customs  or  ex- 
cise, must  still  be  commenced  within  three  months  after  the  matter  or 
thing  done.  Also,  by  the  acts  relating  to  the  West  India,{f)  and  Lon- 
don,{g)  Dock  companies,  actions  against  their  treasurer  must  be  brought 
within  six  calendar  months  after  the  fact  committed. 

*By  the  general  highwai/,{a)  turnpike,{b)  and  hmlding{e)  [  *21  ] 
acts,  actions  for  things  done  in  pursuance  thereof,  must  be 
brought  within  three  months  next  after  the  act  committed,  and  not  after- 
wards. But  it  has  been  determined,  that  if  surveyors  of  highways,  in  the 
execution  of  their  office,  undermine  a  wall  adjoining  to  the  highway, 
which  does  not  fall  till  more  than  three  months  afterwards,  they  are  sub- 
ject to  an  action  on  the  case,  for  the  consequential  injury,  within  tJiree 
months  after  the  falling  of  the  wall.(fZ)  By  the  statute  43  Geo.  III.  c. 
99,_§  70,  for  consolidating  the  provisions  in  the  acts  relating  to  the  duties 
under  the  management  of  the  commissioners  for  the  affairs  of  taxes,  "if 
any  action  or  suit  shall  be  brought  against  any  person  or  persons,  for  any 
thing  done  in  pursuance  of  that  act,  or  any  act  for  granting  duties  to  be 
assessed  under  the  regulations  of  that  act,  such  action  or  suit  shall  be 
commenced  within  six  calendar  months  next  after  the  fact  committed, 
and  not  afterwards."  By  the  statute  6  Geo.  IV.  c.  16,  to  amend  the  laws 
relating  to  hankrupts,{e)  "  every  action  brought  against  any  person,  for 
any  thing  done  in  pursuance  of  that  act,  shall  be  commenced  within  three 
calendar  months  next  after  the  fact  committed."  By  the  statutes  7  &  8 
Geo.  IV.  c.  29,  §  75,  and  c.  30,  §  41,  "all  actions  and  prosecutions 
against  any  person,  for  any  thing  done  in  pursuance  of  the  acts  for  con- 
solidating and  amending  the  laws  relative  to  larceny,  kc,  and  malicious 
injuries  to  property,  shall  be  commenced  within  six  calendar  months  after 
the  fact  committed,  and  not  otherwise."  And,  by  the  statute  7  &  8  Geo. 
IV.  c.  31,  for  consolidating  and  amending  the  laws  relative  to  remedies 
against  the  hundred,{f)  "  no  person  shall  be  enabled  to  bring  any  action 
by  virtue  of  that  statute,  unless  he  shall  commence  the  same  within  three 
calendar  months  after  the  commission  of  the  offence." 

The  statute  of  limitations  is  a  bar  to  an  action  of  trover,  commenced 
more  than  six  years  after  the  conversion,  although  the  plaintiff  did  not 

(e)  2  H.  Blac.  14.     2  East,  254,  and  see  1  Bing.  167. 

(/)  Stat.  39  Geo.  III.,  c.  Ixix.,  ?  184,  and  see  5  Taunt.  534. 

{g)  Stat.  39  &  40  Geo.  III.,  c.  xlvii.,  g  151,  and  see  1  Ry.  &  Mo.  IGl.  1  Car.  &  P.  541, 
S.  C.  («)  13  Geo.  III.,  c.  78,  ?  82. 

{h)  13  Geo.  III.,  c.  84,  §  85.  3  Geo.  IV.,  c.  126,  ?  147,  and  sec  statutes  5  Geo.  III.,  c.  105. 
42  Geo.  III.,  Chap.  C.  56  Geo.  III.,  c.  li.  And  for  decisions  on  these  statutes,  see  1  Marsh. 
429.  6  Taunt.  29,  S.  C.  2  Barn.  &  Cres.  703.  4  Dowl.  &  Ryl.  195,  S.  C.  4  Barn.  & 
Cres.  200. 

(c)  14  Geo.  III.  c.  73,  ?  100,  and  see  4  Barn,  k  Cres.  269.     6  Dowl.  &  Ryl.  360,  S.  C. 

\d)  16  East,  215,  and  see  5  Taunt.  537,  8.  1  Marsh.  429.  6  Taunt.  29,  S.  C.  3  Maule  & 
Sel.  580.     2  Barn.  &  Cr«3.  703.     4  Dowl.  &  Ryl.  195,  S.  C. 

{e)  i  44.  (/)  ?  3. 

Vol.  I.— 3 


21  .  OF  ACTIONS,  ETC. 

know  of  it  until  witliin  thcat  period  ;  the  defendant  not  having  practised 
any  fraud,  in  order  to  prevent  the  plaintiff  from  obtaining  that  knowledge 
at  an  earlier  period. (^)  And  in  an  action  on  the  case  against  an  attorney, 
for  misconduct,  in  laying  out  money  on  insufficient  securities,  the  statute 
of  limitations  begins  to  run  from  the  time  when  the  defendant  was  guilty 
of  such  misconduct,  and  not  from  the  time  when  it  was  discovered  that 
the  securities  were  insufficient. (//,)  To  a  declaration  in  an  action 
[  *22  ]  on  the  *case,  founded  in  tort,  the  defendant,  in  pleading  the 
statute  of  limitations,  should  allege  that  the  cause  of  action  did 
not  accrue  within  six  years  next  before  the  commencement  of  the  suit ;  a 
plea  of  not  guilty  of  the  grievances  mentioned  in  the  declaration,  within 
six  years,  being  bad  upon  special  demurrer. (a)  And  a  subsequent  admis- 
sion by  the  defendant,  of  having  committed  a  trespass,  will  not  take  the 
case  out  of  the  statute  of  limitations. (5) 

To  take  a  case  out  of  the  statute,  it  is  usual,  in  assumpsit,  to  prove  a 
promise  to  pay,  or  acknowledgment  of  the  debt,  within  six  years  before 
the  commencement  of  the  action. [a]  And  a  conditional  promise  has  been 
holden  sufficient  for  this  purpose,  as  well  as  an  absolute  one ;  as  where 
the  defendant  said  to  the  plaintiff,  j^rove  your  debt,  and  I  ivill  pay  it.{c) 
But  if  an  executor  bring  assumpsit  on  a  promise  made  to  his  testator, 
and  the  defendant  plead  that  he  made  no  promise  to  the  testator  within 
six  years:  if  issue  be  joined  thereon,  a  promise  to  the  executor  within  six 
years  will  not  maintain  the  action. (cZ)  So,  where  an  action  was  brought 
against  A.  and  B.  and  C,  his  wife,  upon  a  joint  promissory  note  made  by 
A.  and  C  before  her  marriage,  and  the  promise  was  laid  by  A.  and  C. 
"while  the  latter  was  sole,  and  the  defendants  pleaded  the  statute  of  limi- 
tations, whereupon  issue  was  joined ;  the  court  held,  that  an  acknow- 
ledgment of  the  note  by  A.,  within  six  years,  but  after  the  intermarriage 
of  B.  and  C,  was  not  evidence  to  support  the  issue. (g)  And,  upon  a 
replication  that  the  defendant  did  promise  within  six  years,  to  a  plea  of 
the  statute  of  limitations,  fraud  in  the  defendants  cannot  be  set  up  as  an 
answer  to  the  plea.(/)[l] 

(g)  5  Barn.  &  Cres.  149.  7  Dowl.  &  Ryl.  729,  S.  C,  and  see  Ballentine,  on  the  statute  of 
limitations,  97,  &c. 

(h)  5  Barn.  &  Cres.  259.  8  Dowl.  &  Ryl.  14.  2  Car.  &  P.  238,  S.  C,  and  see  3  Barn.  & 
Aid.  288,  626.     4  Moore,  508.     2  Brod.  &  Bing.  73,  S.  C.  (a)  3  Barn.  &  Aid.  448. 

(6)  1  Barn.  &  Aid.  92.  2  Chit.  Rep.  249,  S.  C,  and  see  2  Campb.  160.  3  Barn.  &  Aid. 
626.     5  Moore,  105.     2  Brod.  &  Bing.  372,  S.  C,  Post,  27. 

(c)  1  Ld.  Raym.  389,  422.  1  Salk.  29.  Carth.  470.  5  Mod.  425,  S.  C,  and  see  2  Show. 
126.     2  Vent.  151.     12  Mod.  224. 

(d)  1  Salk.  28.     2  Ld.  Raym.  1101.     6  Mod.  309,  S.  C.     Bui.  M.  Pri.  150.     3  East,  409. 

(e)  1  Barn.  &  Cres.  248.     2  Dowl.  &  Ryl.  363,  S.  C. 
(/)  2  Barn.  &  Cres.  149.     3  Dowl.  &  Ryl.  322,  S.  C. 

[1]  In  this  case,  each  of  the  judges  intimated  an  opinion  that  fraud  would  have  been  a 
good  answer,  if  it  had  been  specially  stated  in  the  replication.  See  2  Barn.  &  Cres.  149,  par- 
ticularly what  is  said  by  Bayley  and  Best,  Js.  See  also  5  Barn.  &  Cres.  149.  In  this  country, 
the  cases  on  this  subject  are  as  follows  :  when  the  statute  is  pleaded  to  an  action  founded  on 
fraud,  a  replication  which  avers  an  ignorance  of  the  fraud  until  within  six  years,  is  sufEcient. 
1  Pickering,  438.  3  id.  74.  2  M'Cord,  426,  contra,  20  Johns.  33.  And  the  ignorance  so 
averred  is  traversable,  and  may  be  proved  or  disproved,  like  other  traversable  matters.  1 
Pick,  ut  supra.  Such  replication  is  good,  though  the  plaintiff  aver  generally  that  he  did  not  dis- 
cover the  fraud  until  within  six  years,  without  stating  the  time  when  he  discovered  it,  or  any 
act  of  the  defendant  by  which  the  knowledge  of  it  was  prevented.  Ibid.  Mr.  Chitty,  in  his 
work  on  the  Practice  of  the  Law  in  all  its  Departments  (vol.  i.  p.  766,)  makes,  upon  this  sub- 
ject, the  following  observations  :  "  It  has  been  suggested  that  even  at  law  a  case  might  be  taken 

[a]  See  a  full  discussion  of  the  subject  and  collection  of  authorities  in  Angell  on  Limita- 
tions, I  208,  235,  3d  Ed. 


OF  ACTIOXS,  ETC.  22 

It  was  formerly  doubted,  whether  a  bare  aeknomledgment  of  the  debt, 
without  a  jJroinise  of  payment,  was  sufficient  to  take  the  case  out  of  the 
statute ;  such  an  acknowledgment  being  only  considered  as  evidence  of  a 
promise ;  as  in  trover^  where  a  demand  and  refusal  arc  not  holden  to  be  a 
conversion,  but  only  evidence  of  it.  A  bare  acknowledgment,  however,(,^) 
and  that  of  the  slightest  nature,(7i)  is  now  deemed  sufficient  to  prevent  the 
operation  of  the  statutc.[A]  So,  in  an  action  brought  by  an  administrator, 
an  agreement  for  a  compromise,  executed  between  the  intestate  and  the 
defendant,  wherein  the  existence  of  the  debt  sued  for  was  admitted,  was 
deemed  sufficient  to  take  the  case  out  of  the  statute  of  limitations. (i)  And 
where  the  defendant,  having  entered  into  a  guarantee  in  writing,  and 
become  liable  upon  it,  at  a  period  of  more  than  six  years  before 
the  *commenccment  of  the  suit,  verbally  promised,  within  six  [  *23  ] 
years,  that  the  matter  should  be  arranged ;  and  afterwards,  on 
an  action  being  brought,  pleaded  actio  non  accrevit,  kc.  the  court  held, 
that  the  statute  of  frauds  having  been  once  satisfied,  by  the  original  pro- 
mise being  in  writing,  it  was  not  necessary,  in  order  to  take  the  case  out 
of  the  statute  of  limitations,  that  the  latter  promise  should  also  be  in  wri- 
ting.(rt)  If  an  agent  has  been  employed  to  pay  money  for  work  done 
for  the  defendant,  and  the  workmen  are  referred  to  him  for  payment,  an 
acknowledgment  or  promise  to  pay  by  him,  will  take  the  case  out  of  the 
statute  of  limitations. (5)  So  the  admission  of  the  wife,  who  was  accus- 
tomed to  conduct  her  husband's  business,  is  sufficient  to  take  the  case  out 
of  the  statute  of  limitations,  in  an  action  against  the  husband. (c)  And,  in 
an  action  against  a  husband,  for  goods  supplied  to  his  wife  for  her  accom- 
modation, while  he  occasionally  visited  her,  a  letter  written  by  the  wife, 
acknowledging  the  debt,  within  six  years,  was  deemed  admissible  evidence 
for  that  purpose. ((i) 

An  acknowledgment  by  one  of  several  drawers  of  a  joint  and  several 
promissory  note,  will  take  the  case  out  of  the  statute,  as  against  any  one 
of  the  other  drawers,  in  a  separate  action  on  the  note  against  him.(c')  So, 
in  a  joint  action  against  several  drawers  of  a  promissory  note,  an  acknow- 
ledgment Avithin  six  years,  by  one  of  them,  will  revive  the  debt  against 
another,  although  the  latter  has  made  no  acknowledgment,  and  only 
signed  the  note  as  a  surety.(/)[l]      And  where  one  of  two  drawers  of  a 

(.y)  2  Bur.  1099. 

(A)  5  Bur.  2630,  and  see  Cowp.  548.  4  Esp.  Rep.  46.  1  Car.  &  P.  452,  3,  631,  675.  3 
Bing.  119,  but  see  the  opioion  of  Best,  CIi.  J.  id.  331. 

(i)  9  Price,  122.  (a)  1  Barn.  &  Aid.  690.  (b)  5  Esp.  Rep.  145. 

(c)  Holt  iW.  Pri.  591.  (d)  1  Campb.  394.  (e)  Doug.  652,  3. 

(/)  2  Bing.  306.     9  Moore,  566,  S.  C. 

out  of  the  statute  of  limitations,  by  showing  that  the  ^vrong-doQT  by  fraud,  concealed  from  the 
party  injured  the  knowledge  of  the  cause  of  action  until  after  the  limited  time  liad  elapsed. 
Granger  v.  George,  5  B.  &  C.  149,  S.  C.  7.  D.  &  R.  729  ;  Howell  v.  Young,  5  B.  &  C.  259  ;  but  the 
case  appears  to  have  been  put  rather  as  a  possible  than  a  positive  exception,  and  in  these  cases 
it  seems  at  least  better  to  resort  to  a  court  of  equity,  or  by  an  injunction  in  that  court  to 
prevent  tiie  defendant  from  setting  up  the  lapse  of  time  as  a  bar."  Whallcy  v.  M'halley,  3 
Bligh's  Rep.  2. 

[1]  So,  in  the  State  of  Connecticut,  it  is  held  that  the  acknowledgment  of  one  of  several 
joint  makers  of  a  promissory  note,  will  take  it  out  of  the  statute  as  against  the  others. 
Bound  V.  Lnthrop,  4  Conn.  Rep.  336.  So,  in  Massachusetts,  the  acknowledgment  by  one  of 
several  joint  promisors,  or  debtors,  even  though  the  others  be  sureties.  Hunt  v.  Bridgliam. 
2  Pick.  58 1.  White  v.  Hale,  3  Id.  291.  Fn/e  v.  Baker,  4  Id.  382.  It  is  said,  however,  that 
this  is  true,  only,  where  the  acknowledgment  is  made  under  such  circumstauces,  as  to  entitle 
it  to  its  full  weight.     For,  although  such  evidence  is  in  all  cases  admissible,  for  such  a  pur- 

[a]  See  Angell  on  Limitations,  §  235,  240,  3d  Ed. 


23  OF  ACTIONS,  ETC. 

joint  and  several  promissory  note  having  become  a  bankrupt,  the  payee 
received  a  dividend  under  the  commission  on  account  of  the  note,  the  court 
of  Common  Pleas  held  that  this  would  prevent  the  other  draAver  from  avail- 
ing himself  of  the  statute,  in  an  action  brought  against  him  for  the  remain- 
der of  the  money  due  on  the  note ;  the  dividend  having  been  received 
within  six  years  after  the  action  brought.  ((/)  But  in  a  subsequent  case, 
■where  one  of  two  joint  drawers  of  a  bill  of  exchange  became  bankrupt,  and 
the  indorsees  proved  a  debt  under  his  commission,  beyond  the  amount  of 
the  bill,  for  goods  sold,  &c.,  and  exhibited  the  bill  as  a  security  they  then 
held  for  their  debt,  and  afterwards  received  a  dividend ;  the  court  of  King's 
Bench  held,  in  action  by  the  indorsees  of  the  bill  against  the  solvent 
partner,  that  the  statute  of  limitations  was  a  good  defence,  altough  the 
dividend  had  been  paid  by  the  assignees  of  the  bankrupt  partner,  within  six 
years. (A)  In  an  action  against  A.  on  the  joint  and  several  promissory  note 
of  himself  and  B.,  to  take  the  case  out  of  the  statute  of  limitations,  it  is 
enough  to  give  in  evidence  a  letter  written  by  A.  to  B.,  within  the  six 
years,  desiring  him  to  settle  the  money. (i)  But  it  is  not  sufficient  to  show 
a  payment  by  a  joint  maker  of  the  note  to  the  payee,  within  six  years,  so  as 

to  throw  it  upon  the  defendant  to  show  that  the  payment  was  not 
[  *24  ]   made  on  account  of  the  note.     An  acknowledgment  by  *one 

drawer  in  such  case,  to  bind  the  other,  must  be  clear  and  explicit,  (a) 
And  where  A.  and  B.  made  a  joint  and  several  promissory  note,  and  A. 
died,  and  ten  years  after  his  death,  B.  paid  interest  upon  the  note;  it  was 
holden,  in  an  action  brought  thereon  against  the  executors  of  A.,  that  the 
payment  of  interest  by  B.  did  not  take  the  case  out  of  the  statute,  so  as 
to  make  the  executors  liable.(6)[l] 

(^r)  2  H.  Blac.  340. 

(A)  1  Bara.  &  Aid.  463,  and  see  1  Barn.  &  Cres.  248,  2  Dowl.  &  Ryl.  363,  S.  C. 

(t)  Campb.  32.  (a)  1  Stark.  Ni.  Pri.  488. 

(b)  2  Barn.  &  Cres.  23.     3  Dowl.  &  Ryl.  200,  S.  C. 

pose,  it  will  not  in  all  cases  be  sufficient.  Coit  v.  Tracy,  8  Conn.  Rep.  2G8.  Therefore,  where 
there  was  a  joint  indebtedness  by  A.  k  B.  to  C,  growing  out  of  an  agency  conducted  by  A. 
&  B.  joint ;  and  more  than  twenty  years  after  such  agency  was  ended,  B.  made  an  acknow- 
ledgment of  the  debt,  and  then,  at  his  own  expense,  and  with  a  view  to  obtain  an  advantage 
to  himself,  by  a  recovery  against  A.,  procured  a  suit  to  be  brought  in  the  name  of  C,  against 
A.  and  himself;  it  was  held  that  the  acknowledgment  of  B.  under  such  circumstances,  was 
not  sufficient  to  remove  the  bar  of  the  statute  of  limitations  set  up  by  A.  Ibid.  The  same 
distinction  between  the  admissibility  and  the  sufficiency  of  evidence,  was  made  in  the  case  of 
Peck  V.  Botsford,  7  Id.  172  ;  in  which  it  was  held,  that  an  acknowledgment  by  a  personal 
representative  of  a  deceased  person,  that  a  demand  against  the  estate  of  the  deceased,  barred 
by  the  statute,  is  due,  will  not  take  the  case  out  of  the  statute. 

An  acknowledgment  of  debt,  or  a  new  promise,  by  the  maker  of  a  promissory  note,  takes 
it  out  of  the  statute  of  limitations  only  so  far  as  he  is  concerned;  but  does  not  affect  the 
rights  or  obligations  of  collateral  parties.  Gardiner  v.  Nutting,  5  Greeuleaf,  140.  Where 
the  maker  of  a  promissory  note,  of  more  than  six  years  standing,  died  insolvent,  and  a  col- 
lateral guarantor  of  the  note  was  appointed  a  commissioner  on  his  estate;  the  allowance  of 
the  note  by  the  commissioner,  as  a  valid  claim  against  the  estate,  being  an  ofBcial  act,  was 
held,  not  to  amount  to  a  new  promise  on  his  part  to  pay  the  debt.    Id.  Ibid. 

The  acknowledgment  of  a  debt  by  one  partner,  after  a  dissolution  of  the  partnership,  is 
not  sufficient  to  take  the  case  out  of  the  statute,  as  to  the  other  partners.    Arnold  v.  Dexter^ 

4  Mason,  122.  Bell  v.  Morrison,  et  al.  1  Pet.  Rep.  S.  C.  351,  373.  Searight  \.  Craighead,  1 
Pennsyl.  Rep.  135.  Levy  v.  Cadet,  17  Serg.  &  Rawle,  126.  Contra,  in  the  State  of  Mary- 
land, where  it  is  held  that,  although  the  admissions  of  one  partner,  after  the  partnership  is 
dissolved,  are  not  sufficient  to  charge  the  other  partners  with  a  debt,  they  are  sufficient  to 
take  a  debt  due  from  the  partners  out  of  the  statute  of  limitations.      Ward  v.  Iloicell  et  al. 

5  Har.  &  J.  60.  So,  also,  in  the  State  of  New  York;  Patterson  v.  Choate,  7  Wendell,  441 ; 
where  the  admission  was  made  twelve  years  after  the  dissolution.  But  see  Cady  v.  Shepherd, 
11  Pick.  400.  Van  Kusen  v.  Parmelee,  2  Comst.  523,  and  2  Parsons  on  Contr.  p.  360,  note  j, 
p.  364,  note  p. 

[Ij  A  payment  of  interest  by  A.,  on  the  joint  and  several  note  of  A.  and  B.,  is  evidence  of 


OF  ACTIONS,  ETC.  24 

If  a  letter  be  written  by  a  plaintiiF  to  tbe  defendant's  attorney,  on  being 
served  Avith  a  writ,  couched  in  ambiguous  terms,  neither  expressly  admit- 
ting nor  denying  the  debt,  it  should  be  left  to  the  jury  to  consider  whether 
it  amounts  to  an  acknowledgment  of  the  debt.((?)[A]  And  if  there  be  a 
mutual  account  of  any  sort  between  the  plaintiff  and  defendant,  for  any 
item  of  which  credit  has  been  given  within  six  years,  that  is  evidence  of  an 
acknowledgment  of  there  being  such  an  open  account  between  the  parties, 
and  of  a  promise  to  pay  the  balance,  as  to  take  the  case  out  of  the  statute. (<i) 
So,  if  a  defendant  admit  the  existence  of  a  debt,  which  would  otherwise  be 
barred  by  the  statute  of  limitations,  but  claim  to  be  discharged  by  a  writ- 
ten instrument,  which  does  not  amount  to  a  legal  discharge,  he  shall  be 
bound  by  his  admission. (e)  And  where  the  acceptor  of  a  bill  of  exchange 
acknowledged  his  acceptance,  and  that  he  had  been  liable,  but  said  that 
"  he  was  not  liable  then,  because  it  was  out  of  date,  and  that  he  would 
not  pay  it,  and  that  it  was  not  in  his  power  to  pay  it,"  this  was  deemed 
sufficient  to  take  the  case  out  of  the  statute. (/)  So  it  is  sufficient  to  prove, 
that  a  demand  being  made  by  a  seaman  on  the  owner  of  a  ship,  for  wages 
which  had  accrued  during  an  embargo,  he  said,  "  if  others  paid,  he  should 
do  the  same."(_7)  So  where  A.,  by  means  of  a  misrepresentation,  received 
of  B.  and  several  other  persons,  his  tenants,  various  sums  of  money,  to 
which  he  was  not  entitled:  and  B.  having  applied  to  him  to  have  the 
money  which  he  had  so  paid  returned,  saying,  that  he  and  the  other  ten- 
ants had  been  induced  to  pay  more  than  was  due,  A.  replied,  that  "  if 
there  was  any  mistake,  it  should  be  rectified;"  it  was  holden,  that  this 
obviated  the  statute  of  limitations,  as  to  payments  made  by  the  other  ten- 
ants, as  well  as  by  B.(7i)  So  where,  in  a  deed  between  the  defendants  and 
a  third  person,  defendants  acknowledged,  within  six  years,  the  existence 
of  a  debt,  and  the  plaintiffs  were  wholly  strangers  to  the  deed ;  the  court 
held  this  was  sufficient  to  take  the  case  out  of  the  statute  of  limitations. (i) 
And  a  promise  by  a  defendant,  in  embarrassed  circumstances,  to  pay  a 
debt  by  instalments,  if  time  were  given  him,  is  sufficient  to  take  a  case  out 
of  the  statute. (A;) 

On  the  other  hand,  a  note,  written  by  a  debtor  to  an  executor,  that 
*"the  testator  always  promised  never  to  distress  him  for  the 
debt,"  is  not  evidence  of  a  promise  to  pay  it,  made  to  the  tes-   [  *25  ] 
tator  within  six  years. («)     And  where  the  acknowledgment  was, 
"I  had  the  money,  but  the  testatrix  gave  it  to  me;"  the  latter  words 

(c)  2  Durnf.  &  East,  Y60,  and  see  8  Moore,  180.     1  Bing.  206,  S.  C. 

(d)  6  Durnf.  &  East,  189.  [e]  6  Esp.  Rep.  66.  (/)   16  East,  420. 
[g)  4  Campb.  185,  and  see  5  Maule  &  Sel.  75.     2  Stark.  Ni.  Pri.  98,  but  see  3  Dowl.  & 

Ryl.  267.     4  Dowl.  &  Ryl.  179.  (h)  2  Barn.  &  Cres.  149.     3  Dowl.  &  Ryl.  322.  S.  C. 

'(t)  3  Barn.  &  Aid.  141.  (k)  2  Stark.  M.  Pri.  98. 

(a)  6  Taunt.  210. 

a  promise  by  B.,  and  lakes  the  case  out  of  the  statute,  though  B.  were  a  mere  surety,  and 
the  payment  was  made  without  his  knowledge.  Burleigh  v.  Sc(jU,  2  Man.  &  Ryl.  93*,  S.  C. 
8  Barn,  k  Cres.  36.  And  per  Ilolroi/d,  J.  The  joint  and  several  promises  applj-  to  the  same 
sum  of  money.  It  was  a  joint  debt,  though  there  was  a  several  promise  by  each  to  pay  it. 
Such  payment,  therefore,  operates  as  a  new  promise  to  the  full  extent  of  the  original  pro- 
mise contained  in  the  note.     Jhid. 

Payment  within  si.x  years  of  interest  due  on  a  note  beyond  six  years,  where  the  note 
remains  in  the  payee's  hands,  is  sufiicient  to  take  tbe  case  out  of  the  statute  of  limitations. 
Beahj  v.  Greensladc,  2  Cromp.  &  Jer.  61. 

[a]  See  Angell  on  Limitations,  §270,  285,  3d  Ed. 


25  OF  ACTIONS,  ETC. 

■were  holden  to  qualify  the  generality  of  the  first  admission,  and  not  to 
amount  to  a  new  promise  or  confession  of  the  defendant,  sufficient  to 
take  the  case  out  of  the  statute.(5)  So,  where  the  defendant  had  said  to 
the  plaintiff,  "  I  owe  you  not  a  farthing,  for  it  is  more  than  six  years 
since;"  the  court  held,  that  this  was  not  to  be  left  to  the  jury,  as  evidence 
of  an  admission,  to  take  a  debt  out  of  the  statute  of  limitations. (c)  So,  an 
acknowledgment  by  the  acceptor  of  a  bill  of  exchange,  within  six  years, 
of  his  liability  to  the  payee  of  the  bill,  there  being  no  consideration  for 
the  acceptance,  is  not  sufficient,  in  an  action  by  the  drawers  against  the 
acceptor,  to  take  the  case  out  of  the  statute  of  limitations. (t^)  So  where, 
upon  demand  made  of  payment  of  two  promissory  notes,  over-due  ten 
years,  the  defendant  said,  "I  cannot  afford  to  pay  my  new  debts,  much 
less  my  old  ones;"  the  court  held,  that  the  jury  were  warranted  in  nega- 
tiving this  as  evidence  of  a  subsisting  debt,  to  take  the  case  out  of  the 
statute. (e)  And  where  the  defendant,  on  being  arrested  for  a  debt  more 
than  six  years  old,  said,  "  I  know  than  I  owe  the  money,  but  the  bill  I 
gave  you  is  on  a  tliree-pe^iny  receipt  stamp,  and  I  will  never  pay  it ;"  the 
court  of  Common  Pleas  held,  that  this  was  not  such  an  acknowledgment, 
as  would  revive  the  debt.(/) 

In  like  manner,  a  qualified  admission,  by  a  party  who  relies  on  an  objec- 
tion, which  would  at  any  time  have  been  a  good  defence  to  the  action,  does 
not  take  the  case  out  of  the  statute.(^)  So  where  a  defendant,  on  being 
applied  to  by  the  plaintiff's  attorney,  for  the  payment  of  a  debt,  wrote  in 
answer,  that  "  he  would  wait  on  the  plaintiff,  when  he  should  "  be  able  to 
satisfy  him  respecting  the  misunderstanding  which  had  occurred  between 
them :"  this  was  holden  not  to  be  such  an  acknowledgment  of  a  debt,  as 
would  bar  a  plea  of  the  statute  of  limitations ;  and  that  such  evidence  ought 
not  to  be  left  to  a  jury,  as  a  ground  to  infer  a  new  promise  to  pay.(7i)  So, 
in  assumpsit  by  an  executrix,  where  the  defendant,  on  being  applied  to  by 
the  plaintiff  for  payment  of  interest,  stated  that  he  would  bring  her  some  on 
the  following  Sunday;  the  court  held,  that  although  this  was  an  admission 
that  something  was  due,  still  as  it  did  not  appear  what  the  nature  of  the 
debt  was,  or  that  it  was  due  to  the  plaintiff  as  executrix,  or  in  her  own  right, 
or  that  it  was  one  for  which  assumjjsit  would  lie,  the  plaintiff  was  not 
entitled  to  recover  even  nominal  damages,  and  a  non-suit  was  entered.(z) 
And  where,  in  an  action  against  several  executors,  on  a  promise  made  by 

themselves,  as  well  as  by  the  testator,  to  which  the  defendants 
[  *26  ]    pleaded  the  general  issue,  and  the  *statute  of  limitations ;  it  was 

holden,  that  neither  a  mere  acknowledgment  of  the  debt  by  all  the 
executors,  nor  an  express  promise  by  one  of  them,  would  take  the  case  out 
of  the  statute;  but  there  must  be  an  express  promise  by  all. (a)  So,  in 
assumpsit  by  an  attorney,  to  recover  his  charges  relative  to  the  grant  of  an 
annuity,  evidence  that  the  defendant  said,  "  he  thought  it  had  been  settled, 
when  the  annuity  was  granted,  but  he  had  been  in  so  much  trouble  since, 
that  he  could  not  recollect  any  thing  about  it,"  was  holden  not  to  be  a  suf- 
ficient acknowledgment  of  the  debt,  to  take  the  case  out  of  the  statute  of 

(b)  6  Esp.  Rep.  67,  8. 

(c)  3  Taunt.  380,  and  see  5  Esp.  Rep.  81.     4  Manle  &  Sel.  457.     5  Price,  636,  accord. 

(d)  3  Stark.  M.  Pri.  186.  («)  4  Dowl.  &  Ryl.  179. 

(/)  3  Bing.  329,  and  see  4  Bing.  105.  [g)  1  Stark.  Ni.  Pri.  7. 

{h)  Holt  A^i.  Pri.  380,  and  see  4  Esp.  Rep.  184,  5  Esp.  Rep.  81,  1  New  Rep.  C.  P.  20,  3 
Dowl.  &  Ryl.  207. 
{i)  4  Barn.  &  Cres.  235.  (a)  1  Ry.  &  Mo.  416.     9  Dowl.  &  Ryl.  40  S.  C. 


OF  ACTIONS,  ETC.  26 

limitations,  and  ought  not  to  be  left  to  the  jury,  as  evidence  of  an  admission 
of  such  debt ;  although  the  plaintiff  proved  his  bill  was  not  paid  at  the  time 
of  granting  the  annuity. (Z*)  So  Avhcre,  in  assumpsit  on  a  promissory  note, 
it  was  proved  that  on  the  plaintiff's  showing  the  note  to  the  defendant 
within  six  years,  the  latter  said,  "  you  owe  me  more  money ;  I  have  a  set-off 
against  it;"  this  was  holden,  by  two  of  the  judges,  not  to  be  a  sufficient 
acknowledgment  within  six  years,  to  take  the  case  out  of  the  statute  of 
limitations.(c)  And  where  a  party,  on  being  asked  for  the  payment  of  his 
attorney's  bill,  admitted  that  there  had  been  such  a  bill,  but  stated  that  it 
had  been  paid  to  the  deceased  partner  of  the  attorney,  who  had  retained  the 
amount  out  of  a  floating  balance  in  his  hands  ;  it  seems  that,  in  order  to  take 
the  case  out  of  the  statute  of  limitations,  evidence  is  inadmissible  to  show 
that  the  bill  had  never  in  fact  been  paid  in  this  manner.(cZ) 

In  assumpsit  for  goods  sold  and  delivered,  and  on  the  money  counts, 
where  the  defendant  had  pleaded  the  general  issue,  with  the  statute  of  limi- 
tations, and  paid  money  into  court  generally ;  the  court  held,  that  such  pay- 
ment did  not  take  the  case  out  of  the  statute,  (e)  And  where  a  party  revives 
a  debt  barred  by  the  statute  of  limitations,  by  paying  it  into  court,  but  at 
the  same  time  refuses  to  pay  interest,  such  payment  of  the  principal  does 
not  revive  the  claim  for  interest.  4  Bing.  313.  So,  in  an  action  by  an 
executor  for  the  balance  of  an  account,  a  warrant  of  attorney  given  by  the 
defendant  to  the  testator,  to  confess  a  judgment  for  such  balance,  was  holden 
not  to  be  sufficient  to  take  the  case  out  of  the  statute  of  limitations. (/ )  And 
where  the  defendant,  on  being  applied  to  for  payment,  said,  "  I  think  I  am 
bound  in  honour  to  pay  the  money,  and  shall  do  it  when  I  am  able ;"  Lord 
Kenyon  ruled,  that  it  was  a  conditional  promise[A]  only,  and  that  the 

(b)  7  Taunt.  603.     1  Moore,  340,  S.  C. 

(c)  2  Bara.  &  Aid.  759.  {d)  4  Barn.  &  Aid.  568. 

(e)  3  Barn.  &  Ores.  10.     4  Dowl.  &  Ryl.  632,  S.  C.  (/)  2  Stark.  Ni.Pri.  234. 


[a]  "  The  acknowledgment  of  a  debt  if  accompanied  with  a  promise  to  pay  conditionally, 
is  of  no  avail  unless  the  condition  to  which  the  promise  is  subjected  by  the  defendant  is 
complied  with,  or  the  event  has  happened  upon  which  the  promise  depends.  It  would  be 
absurd  to  say  that  a  conditional  promise  is  the  continuation  of  one  which  is  unconditional. 
Therefore  the  cases  wherein  it  has  been  held  that  if  the  condition  accompanying  the  ac- 
knowledgment is  complied  with,  it  will  avail  and  not  otherwise,  must  be  on  the  ground  that 
the  acknowledgment  furnishes  a  new  promise  in  the  words  of  Mr.  Justice  Story  in  Bell  v. 
Morrkon,  1  Pet.  360,  springing  out  of  and  supported  by  the  original  consideration."  All 
those  cases,  according  to  Lord  Chief  Justice  Tenterden,  "proceed  upon  the  principle,  that 
under  the  ordinary  issue  of  the  statute  of  limitations,  an  acknowledgment  is  only  an  evi- 
dence of  a  promise  to  pay;  and  unless  it  is  conformable  to,  and  maintains  the  promises  in 
the  declaration,  though  it  may  show  to  demonstration  that  the  debt  has  never  been  paid, 
and  is  still  subsisting,  it  has  no  effect.  The  question,  then,  comes  to  this:  is  there  any 
promise  in  this  case,  which  will  sup{)ort  tlie  promises  in  the  declaration?  The  promises  in 
the  declaration  are  absolute  and  unconditional  to  pay  when  thereunto  afterwards  requested. 
The  promise  proved  here  was,  '  I  will  pay  you  as  soon  as  I  can  ;'  and  there  was  no 
evidence  of  ability  to  pay,  so  as  to  raise  that,  which  was  in  its  terms  a  quallQed  promise 
into  one  that  was  absolute  and  unqualified."  Tanner  v.  Smart,  6  B.  &  C.  603.  Chief  Justice 
Marshall,  in  delivering  the  opinion  of  the  Supreme  Court  of  the  United  States,  in  Wdzell  v. 
Bussard,  11  Wheat.  309,  held  that  certain  declarations  could  not  be  construed  into  a  revival 
of  the  original  cause  of  action,  unless  that  was  done  on  which  the  revival  was  made  to  de- 
pend. Says  he,  "It  m.iy  be  considered  a  new  promise  for  which  the  old  debt  is  a  sufficient 
consideration."  I  know,  says  Carr,  J.,  (in  the  case  of  the  Farmers'  Bank  v.  Clark,  in  the 
Court  of  Appeals  of  Virginia,)  4  Leigh,  603,  "  there  are  many  old  cases  which  consider  the 
statute  founded  on  the  presumption  of  payment :  that  whatever  repels  that  presumption  is 
in  legal  etfect,  a  promise  to  pay  the  debt;  and  that  such  acknowledgment,  is  accompanied 
with  only  a  conditional  promise,  or  even  a  refusal  to  pay,  the  law  considers  the  condition 
or  refusal  void,  and  the  acknowledgment  itself  as  an  unconditional  answer  to  the  statute. 
But,"  he  continues,  "  the   more  recent,  and,  I  think,  the  more  rational  decisions,  take  a 


26  OF  ACTIONS,  ETC. 

plaintiff  was  bound  to  show  that  the  defendant  was  then  of  sufficient 
ability  to  pay;  adding,  that  it  had  been  so  ruled  before,  by  Lord  Chief 
Justice  Eyre.{g)  In  a  late  case,(7i)  the  Court  of  Common  Pleas  were 
divided  in  opinion,  whether,  on  a  promise  to  pay  ivlien  of  ability^  made 
tliree  years  after  the  original  cause  of  action  accrued,  and  within  six 
years  before  the  commencement  of  the  action,  it  was  necessary  for 
the  plaintiff  to  prove  the  defendant's  ability.  But,  in  a  subsequent 
case,(2)  where  it  appeared  that  the  defendant,  being  applied  to  to  pay  a 

debt  barred  by  the  statute  of  limitations,  said  "  he  should  be 
[  *27  ]    happy  to  pay,  *if  he  could;"  the   court  held,  that  the  plaintiff 

must  show  the  defendant's  ability  to  pay.  So,  in  the  King's 
Bench,  where  assumpsit  was  brought  to  recover  a  sum  of  money,  and  the 
defendant  pleaded  the  statute  of  limitations,  upon,  which  issue  was  joined, 
and,  at  the  trial,  the  plaintiff  proved  the  following  acknowledgment  by  the 
defendant,  within  six  years,  "I  cannot  pay  the  debt  at  present,  but  I 
will  pay  it  as  soon  as  I  can ;"  the  court  held,  that  this  was  not  sufficient 
to  entitle  the  plaintiff  to  a  verdict,  no  proof  being  given  of  the  defendant's 
ability  to  pay.  6  Barn.  &  Cres.  603.  If  a  cause  of  action  arising  from  the 
breach  of  a  contract  to  do  an  act  at  a  specific  time,  be  once  barred  by  the 
statute  of  limitations,  a  subsequent  acknowledgment  by  the  party,  that  he 
broke  the  contract,  will  not  it  seems  take  the  case  out  of  the  statute. (a)[l] 

{g)  4  Esp.  Rep.  36,  but  see  2  Stark.  Ni.  Pri.  99,  in  nods,  mnh.  contra;  and  see  2  H.  Blac. 
116.    3  Esp.  Rep.  159. 

(h)  3  Bing.  638.  (t)  4  Bing.  105. 

(a)  2  Campb.  160,  and  see  Peake's  Evid.  5  Ed.  212,  271.  1  Barn.  &  Aid.  92.  2  Chit.  Rep. 
249,  S.  C.     3  Barn.  &  Aid.  626.     5  Moore,  105.     2  Broad  &  Bing.  372,  S.  C.  Ante,  22. 

[1]  In  order  to  prevent  various  questions  which  had  arisen  in  actions  founded  on  simple 
contract,  as  to  the  proof  and  effect  of  acknowledgments  and  promises  oflFered  in  evidence, 
for  the  purpose  of  taking  the  case  out  of  the  operation  of  the  enactments  of  the  statute  21 
Jac.  1,  c.  16,  ^  1,  and  to  make  provision  for  giving  effect  to  the  said  enactments,  and  to  the 
intention  thereof;  it  is  enacted  by  the  statute  9  Geo.  IV.  c.  14,  |  1,  that  "  in  actions  of  debt, 
or  upon  the  case,  grounded  upon  any  simple  contract,  no  acknowledgment  or  promise,  by 
words  only,  shall  be  deemed  sufficient  evidence  of  a  new  or  continuing  contract,  whereby 
to  take  any  case  out  of  the  operation  of  said  enactments,  or  either  of  them,  or  to  deprive 
any  party  of  the  benefit  thereof,  unless  such  acknowledgment  or  promise  shall  be  made  or 
contained  by  or  in  some  writing,  to  be  signed  by  the  party  chargeable  thereby  :  And  that 
where  there  shall  be  two  or  more  joint  contractors,  or  executors,  or  administrators  of  any 
contractor,  no  such  joint  contractor,  executor  or  administrator,  shall  lose  the  benefit  of  the 
said  enactments,  or  either  of  them,  so  as  to  be  chargeable  in  respect  or  by  reason  only  of 
any  written  acknowledgment  or  promise,  made  and  signed  by  any  other  or  others  of  them. 
Provided  always,  that  nothing  therein  contained  shall  alter  or  take  away,  or  lessen  the 
effect  of  any  payment  of  any  principal  or  interest,  made  by  any  person  whatsoever.  Pro- 
vided also,  that  in  actions  to  be  commenced  against  two  or  more  such  joint  contractors,  or 
executors  or  administrators,  if  it  shall  appear  at  the  trial  or  otherwise,  that  the  plaintiff, 
though  barred  by  either  of  the  therein  recited  acts  or  that  act,  as  to  one  or  more  of  such 
joint  contractors,  or  executors  or  administrators,  shall  nevertheless  be  entitled  to  recover 
against  any  other  or  others  of  the  defendants,  by  virtue  of  a  new  acknowledgment  or  pro- 
mise or  otherwise,  judgment  may  be  given  and  costs  allowed  for  the  plaintiff  as  to  such 
defendant  or  defendants  against  whom  he  shall  recover,  and  for  the  other  defendant  or 
defendants  against  the  plaintiff." 

different  view  of  the  case.  They  consider  this  a  statute  of  repose,  which  ought  to  receive 
from  the  courts  a  firm  and  just  support.  They  consider  the  acknowledgment  a  new  promise, 
not  a  continuance  of  the  old."     Angell  on  Limitations, §  235. 

Direct  proof  of  an  acknowledgment  or  promise,  in  any  set  form  of  words,  is  not  required 
to  take  a  case  out  of  the  statute.  It  may  be  inferred  from  facts  without  words.  Whitney 
T.  Bigelow,  4  Pick.  110.  It  is  for  the  court  to  decide  what  kind  of  promise  or  acknowledg- 
ment is  suCBcient ;  and  the  evidence  offered  is  proper  to  be  submitted  to  the  jury,  under  the 


OF  ACTIONS,  ETC.  27 

In  order  to  show  that  the  action  was  commenced  in  due  time,  a  bill  of 
3Iiddlesex  or  latitat  in  the  King's  Bench, (?/)  or  a  capias  quare  clausum 
fregit  in  the  Common  Pleas,(c)  is  as  effectual  as  an  original  writ  :[1]  and 
suing  out  a  testatum  capias  ad  respondendum  is  a  good  commencement  of 
an  action  by  original. (rZ)  In  proceeding  against  Vk  j)ccr  of  the  realm,  cor- 
poration,  or  hundredors  on  the  statute  7  &  8  Geo.  IV.  c.  31,  an  original 
writ  must,  in  both  courts,  be  sued  out  for  avoiding  the  statute :  and  where 
a  member  of  the  House  of  Commons  is  defendant,  the  plaintiff  must  pro- 
ceed for  that  purpose,  either  by  suing  out  an  original  writ,  and  getting  it 
returned  nihil,{e)  or  by  bill  and  summons,  &c.,  on  the  statute  12  &  13  W. 
III.  c.  3,  §  2.(/)  An  attachment  of  privilege  is  holden  to  be  a  good 
commencement  of  the  suit,((/)  at  the  suit  of  an  attorney,  even  though  it  be 
informal  :(A)  But  an  attachment  of  privilege,  in  the  King's  Bench,  is  not 
a  continuance  of  a  bill  of  Middlesex,  so  as  to  avoid  the  statute. (^')  And, 
in  the  Common  Pleas,  an  original  writ  of  quare  clausum  fregit,  upon  which 
no  proceedings  were  had,  cannot  be  connected  with  another  writ  of  the 
same  nature,  subsequently  issued.(^)  As  against  an  attorney  or  officer  of 
the  court  of  King's  Bench,  or  a  p)risoner  in  the  actual  custody  of  the 
marshal  of  that  court,  the  statute  can  only  be  avoided,  by  filing  a  bill 
with  the  clerk  of  the  declarations,  in  the  King's  Bench  office ;  which  bill 

(h)  Sty.  Rep.  156,  178.  1  Sid.  53,  60.  Carth.  233.  2  Ld.  Raym.  883.  1  Str.  550.  2 
Str.  736.     2  Ld.  Raym.  1441,  S.  C.     2  Bur.  961.     1  Blac.  Rep.  215,  S.  C.     3  Bur.  1241. 

1  Blac.  Rep.  312,  S.C. 

(c)  2  Ld.  Raym.  880.     Willes,  258.     2  Blac.  Rep.  925. 

(d)  5  Barn.  &  Aid.  452.  1  Dowl.  &  Ryl.  27,  S.  C.  (e)  1  Lev.  111.  2  Ld.  Raym.  1113. 
(/•)  Append.  Chap.  VL  g  28.  {<;)  1  Show.  366.  2  Salk.  420,  S.  C. 
(h)  2  Blac.  Rep.  1131. 

(i)  3  Durnf.  &  East,  662,  and  see  6  Moore,  525.  3  Brod.  &  Bing.  212,  S.  C.  1  Bing.  324. 
5  Barn.  &  Cres.  341.  8  Dowl.  &  Ryl.  270,  S.  C,  as  to  the  effect  of  entering  continuances,  on 
a  writ  of  special  capias  ad  respondendum,  in  K.  B.,  in  supporting  a  commission  of  bankrupt, 
for  a  debt  that  would  otherwise  have  been  barred  by  the  statute  of  limitations. 

(k)  3  Bos.  &  Pul.  330,  but  see  Willes,  259.(c) 

[1]  A  writ  of  latitat  is  considered  as  a  continuance  of  a  bill  o{  3Iiddlesez,  1  Barn.  &  Cres. 
526.     1  Man.  &  RyL  232,  237,  S.  C. 

direction  of  the  court.  Oliver  v.  Gray,  1  Har.  &  Gill.  204.  Every  acknowledgment  must  be 
taken  altogether,  and  no  evidence  can  be  received  to  turn  a  denial  of  the  existence  of  a 
debt  into  an  acknowledgment  of  a  subsisting  liability,  by  proving  that  the  party  making 
the  admission  was  mistaken  in  supposing  the  debt  to  have  been  paid.  lb.  An  acknow- 
ledgment, accompanied  by  a  naked  refusal  to  pay,  or  a  refusal  and  an  excuse  for  not  pay- 
ing, which  in  itself  implies  an  admission  that  the  debt  remains  due,  and  furnishes  no  real 
objection  to  the  payment  of  it,  is  sufBcient.  lb.  An  admission  that  the  sum  claimed  has 
not  been  paid,  is  not  sufficient,  without  some  further  admission,  or  other  proof  that  the 
debt  once  existed.     lb. 

The  acknowledgment  maybe  in  whole  or  in  part,  and  is  sufficient  after  suit  is  brought; 
but  there  must  be  evidence  of  a  promise,  express  or  implied  to  pay  the  debt.  Allcock  v. 
Guan,  2  Hill,  S.  C.  326.  Lawrcnccv.  Hopkins,  13  Johns.  288.  Sands  v.  Gclston,  15  ib.  511. 
Moore  v.  JJank  of  Columbia,  6  Pet.  86.      Moshcr  v.  Hubbard,  13  Johns.  510.     Guicr  v.  riercc, 

2  Browne,  35.  Young  v.  Monpocy,  2  Bailey,  278.  Cohen  v.  Aubin,  ib.  283.  Lowryy.  Dubose, 
ib.  425.      Tntmmell  v.  Salmon,  ib.  308. 

The  acknowledgment  must  admit  that  the  debt  continues  due  at  the  time  of  the  acknow- 
ledgment. Bangs  v.  Hall,  2  Pick.  368.  French  v.  Frazicr,  7  J.  J.  Marsh.  425.  Wctzell  v.  Bus- 
sard,  11  Wheat.  310.  OUrer  v.  Gra;/,  1  Har.  &  Gill,  204.  Ferguson  v.  Taylor,  1  Haj-w.  20. 
Belles  v.  Belles,  7  Halst.  339.  Furd;/  v.  Austin,  3  Wend.  187.  Jiussellv.  Gass,'M&Tt.  &  Yerg. 
270.     Barlow  v.  Bellomy,  7  Verm.  54.     Mellick  y.  He  Scelhoerst,  Breese,  171. 

Such  an  acknowledgment  as  will  satisfy  a  reasonable  man  that  the  defendant,  at  the  time 
of  making  the  acknowledgment,  considered  the  debt  then  existing,  is  sufficient.  Harwell  v. 
M'CuUock,  2  Overt.  275. 


27  OF  ACTIONS,  ETC. 

may  be  filed  in  vacation,  as  well  as  in  term-time. (?)  In  the  Common 
Pleas,  the  bill  against  an  attorney  is  filed  in  the  Prothonotaries'  ofiice ; 
and  to  avoid  the  statute  of  limitations,  it  may,  it  seems,  be  filed  in  vaca- 
tion.(wi)  If  a  plaint  be  levied  in  an  inferior  court,  in  due  time,  and  then 
it  be  removed  into  the  King's  Bench  by  habeas  corpus,  and  the  plaintiff 
declare  there  de  novo,  and  the  defendant  plead  the  statute  of  limitations, 
the  plaintiff  may  reply,  and  show  the  plaint  in  the  inferior  court,  and  that 

will  be  sufficient  to  *avoid  the  statute. (a)     In  the  Exchequer, 
[  *28  ]    the  suing  out  of  process  is  considered  as  the  commencement  of 

proceedings  by  information,  within  the  statute  of  limitations. (6) 
If  an  executor  take  out  proper  process  in  assumpsit,  within  a  year  after 
the  death  of  his  testator,  the  six  years  not  being  elapsed  before,  though 
they  expire  within  that  period,  yet  it  will  be  sufficient  to  take  the  case  out 
of  the  statute. (c)  So,  if  assumpsit  be  brought  in  proper  time,  but  the 
plaintiff  or  defendant  die  before  judgment,  and  the  six  years  run,  his 
executor  or  administrator  may  notwithstanding  bring  a  fresh  action  •,{d) 
provided  he  does  it  recently,  or  within  a  reasonable  time.  What  shall  be 
deemed  a  reasonable  time,  in  this  case,  is  a  matter  of  considerable  doubt, 
and  there  are  various  opinions  in  the  books  upon  the  subject.  In  Spen- 
cer s  case,(e)  it  is  said  to  be  entirely  in  the  discretion  of  the  court.  In 
another  case  it  is  said,  that  heretofore  they  used  to  allow  half  a  year,  but 
that  was  held  to  be  too  long,  and  therefore  they  allowed  but  thirty  days.(/) 
In  a  third  case,  a  year  was  said  to  be  a  reasonable  time  :(</)  And  this 
opinion  was  adhered  to  in  a  subsequent  case,(7i)  in  analogy  to  that  part  of 
the  statute,  which  authorizes  the  party  to  bring  a  new  action  within  a  year, 
after  the  reversal  of  the  judgment,  by  writ  of  error, (z)  &c.  But  whatever 
may  be  the  precise  rule  upon  this  subject,  it  seems  that  if  a  new  action  be 
brought  within  a  half  a  year  after  the  abatement  of  the  former,  it  would 
be  sufficient  to  avoid  the  statute.(A;)[A] 

[I)  Doug.  313,  14.    5  Durnf.  &  East,  173,  325,  but  see  Peake's  Cas.  Ni.  Pri.  3  Ed.  275. 
(m)  Imp.  0.  P.  7  Ed.  456,  {a).     6  Taunt.  347,  8,  355.     2  Marsh.  50,  52,  56,  S.  C. 
(a)  1  Sid.  228.     1  Lev.  143,  S.  C.     1   Ld.  Raym.  553.     2  Salk.  424.     2  Ld.  Raym.  881. 
2  Str.  719.     2  Ld.  Raym.  1427,  S.  C.  (6)  Forrest,  210,  and  see  2  Price,  116. 

(c)  Bui.  Ni.  Pri.  150.  (r/)  2  Salk.  425.     Bui.  Ni.  Pri.  150.  (e)  6  Co.  10. 

(/)  1  Ld.  Raym.  283.     1  Salk.  393,  S.  C,  and  see  1  Lutw.  297. 
ig)  1  Ld.  Raym.  434.     1  Lutw.  256,  S.  C,  and  see  6  Edw.  IIL  32,  b.  Willes,  257. (a) 
(A)  2  Str.  907.     Fitzgib.  170,  289.     1  Barnard,  K.  B.,  335,  S.  C.  {()  Cro.  Car.  294. 

{k)  Cowp.  738,  740,  and  see  Ballantine,  on  the  statute  of  limitations,  156,  166. 

[a]  Under  the  statute  of  Limitations,  a  presumption  arises  that  the  defendant,  from  the 
lapse  of  time,  has  lost  the  evidence  which  would  have  availed  him  in  his  defence,  if  he  had 
been  seasonably  called  upon  for  payment;  but,  when  this  presumption  is  rebutted  by  an 
acknowledgment  of  the  defendant  within  six  years,  the  contract  is  not  within  the  intent  of 
the  statute.  Baxter  v.  Penniman,  8  Mass.  133.  Fiske  v.  JVeedham,  11  ib.  452.  Grist  v.  Neuman, 
2  Bailey,  92.  McLean  v.  TJiorj},  3  Mis.  215.  Gailerv.  Grinnell,  2  Aik.  349.  Lyon  v.  Marclay^ 
1  Watts,  271.     Bullock  v.  Perry,  2  Stew.  &  Port.  319.     Beale  v.  Edmonson,  3  Call.  514. 

The  statute  of  limitations  does  not  run  against  a  state,  unless  it  is  expressly  named. 
Lindsey  v.  Aliller,  6  Pet.  666.  State  v.  Arledge,  2  Bailey,  401.  Weathcrhead  v.  Bledroe,  2 
Overt.  352.  People  v.  Gilbert,  18  Johns.  227.  Slate  Treasurer  v.  Weeks,  4  Verm.  215. 
Stoughton  v.  Baker,  4  Mass.  522,  528.  Nimmo  v.  Commonwealth,  4  H.  &  M.  57.  Bayl/y  v. 
Wallace,  16  S.  &  R.  245.  Munshowcr  v.  Patton,  10  ib.  334.  Commonwealth  v.  Baldwin,  1 
Watts,  54.      Wallace  v.  Miner,  6  Ham.  366. 

Where  an  act  of  the  legislature  allowed  credits  to  be  given  to  persons  who  had  made 
payment  by  mistake  to  D.,  an  officer  whose  term  of  ofiBce  had  expired,  on  their  complying 
with  certain  requisitions,  and  a  collector,  on  complying  with  those  requisitions,  obtained 
credits  to  a  large  amount,  by  fraud  and  collusion  with  D. ;  and,  in  an  action  by  the  Com- 
monwealth to  recover  the  amount,  commenced  in  pursuance  of  a  subsequent  statute,  the 


OF  NOTICES  OF  ACTION.  28 

Previous  to  the  commencement  of  an  action,  it  is  sometimes  necessary 
for  the  intended  plaintiff  to  make  a  request  or  demand^  or  to  give  notice 
to  the  opposite  party,  for  completing  the  cause  of  action ;  and  after  it  is 
completed,  some  things  are  required  to  be  done,  before  the  action  is 
brought.  A  formal  demand  is  necessary,  before  an  action  can  be  main- 
tained against  overseers,  for  the  surplus  arising  from  a  distress  for  poor's 
rates,  under  the  statute  27  Geo.  II.  c.  20,  §  2.(/)  And,  in  order  to  main- 
tain an  action  for  the  recovery  of 'an  attorney's  bill  for  fees  and  disburse- 
ments, at  law  or  in  equity,  it  is  in  general  necessary,  by  the  statute  2 
Geo.  II.  c.  23,  §  23,  that  it  should  be  signed  by  the  attorney,  and  deli- 
vered to  the  party  to  be  charged  therewith,  a  month  at  least  before  the 
action  is  commenced. 

[1)  4  Dowl.  &  Ryl.  181.     2  Barn.  &  Cres.  G82,  S.  C. 

defendant  pleaded  the  statute  of  limitations,  it  was  held,  that  the  plea  could  not  be  sus- 
tained.    Commomcealth  v.  iM^Gouan,  4  Bibb,  C2. 

The  general  statute  of  limitations  in  Massachusetts  does  not  apply  to  trusts.  Ilemin- 
way  V.  Gates,  5  Pick.  321,  and  cases  cited  in  note  thereto.  But  held  otherwise  in  Penn- 
sylvania as  to  implied  or  constructive  trusts.  Walker  v.  Walker,  IG  S.  &  R.  369.  Except 
implied  trusts  in  favour  of  infants,  Smilec  v.  B)J)lc,  2  Barr,  52.  To  exempt  a  trust  from 
the  bar  of  the  statute,  it  must  be,  first,  a  direct  trust ;  secondly,  it  must  be  of  a  kind  be- 
longing exclusively  to  the  jurisdiction  of  a  court  of  equity,  and,  thirdly,  the  question  must 
arise  between  the  trustee  and  the  cestui  que  trust,  per  Ross,  J.  in  Lyon  v.  Marclay,  1  Watts, 
275.    Rush  V.  L'arr,  1  Watts,  120.     Finney  v.  Cochran,  1  Watts  &  Serg.  118. 

It  has  been  uniformly  ruled  in  the  United  States,  that  in  the  case  of  an  express  continu- 
ing trust,  the  statute  of  limitations  docs  not  begin  to  run  as  against  the  cestui  que  trust,  and 
in  favour  of  the  trustee,  until  there  has  been  some  open,  express  denial  of  the  right  of  the 
former,  and  what  amounts  to  an  adverse  possession  on  the  part  of  the  latter.  Decouche  v. 
Savetier,  3  J.  C.  R.  190.  Anstice  v.  Broicn,  G  Paige,  448.  Kane  v.  Bloodyood,  1  J.  C.  R.  90. 
Bohannon's  Heirs  v.  Sthreslcy's  Administrators,  2  B.  Monr.  438.  Fescue  v.  Foscue,  2  Ired.  Eq. 
321.  White  v.  WJiite,  1  Johns.  Maryl.  Ch.  53.  Finson  v.  Grey,  1  Yerg.  29G.  Cook  v.  Wil- 
liams, 1  Green.  Ch.  209.  Boone  v.  Chiles,  10  Pet.  177.  Prevost  v.  Gratz,  6  Wheat. 48.  Oliver 
V.  Fiatl,  2  How.  U.  S.  333.  Zellers  Lessee  v.  Fckart,  4  Id.  289.  Johnson  v.  Humphries,  14 
S.  &  R.  394.  Finney  v.  Cochran,  1  W.  &  S.  118.  Murdoch  v.  Hughes,  7  Sm.  &  M.  219. 
Starke  v.  Starke,  3  Rich.  438.  Perkins  v.  Cartwell,  4  Harring.*270.  Varick  v.  Edwards,  11 
Paige,  259.  Furnnm  v.  Brooks,  9  Pick.  212.  Smith  v.  Calloway,  1  Blackf.  86.  McDonald 
X.Sims,  3  Kelly,  383.  Wickl  iff e  y.  City  of  Lexinyton,  U  B.  Monroe,  161.  And  even  in 
cases  of  adverse  possession,  the  knowledge  of,  or  notice  to,  the  cesttd  que  trust  is  neces- 
sary. Fox  V.  Cash,  11  Penn.  St.  R.  207.  Starke  v.  Starke,  3  Rich.  438.  Where  a  trustee 
for  the  sale  of  stock  actually  sells,  and  incurs  a  liability  for  the  proceeds,  the  statute  begins 
to  run  from  that  time.  White  v.  While,  1  John.  Mary.  Ch.  56.  So,  in  general,  where  the 
relation  is  terminated  by  a  breach  of  trust.  Wickliffe  v.  City  of  Lexington,  11  B.  Monroe, 
ICl.  Where  the  trust,  however,  is  merely  implied  or  constructive,  there  has  been  some 
disagreement  among  the  cases,  but  the  better  opinion  appears  to  be  that,  as  in  general,  the 
facts  out  of  which  such  trust  arises,  from  their  very  nature,  presupposes  an  adverse  claim 
of  right  on  the  part  of  the  trustee  by  implication,  from  the  beginning,  the  statute  will  com- 
mence to  run  against  the  cestui  que  trust,  from  the\ period  from  which  he  could  have  vindi- 
cated his  right  by  action  or  otherwise  ;  which,  however  it  may  be  at  law,  where  there  has 
been  a  dilference  among  the  cases,  (see  Angell  on  Limit.  Ch.  18,)  in  equity  is  considered 
to  bo  when  he  has,  or,  with  reasonable  diligence,  could  have  made  himself  acquainted 
with  th.at  right.  Angell  on  Limitation,  Ch.  16,  35  and  cases  there  cited;  19  Am.  Jurist, 
389.  Sheppard  v.  Turpin,  3  Grat.  373.  Murdoch  v.  Hughes,  7  Sm.  &  M.  219.  Gratz  v.  Pre- 
vost, 6  Wheat.  481.  Cuyler  v.  Brant,  2  Caines,  Cas.  326,  on  the  effect  of  lapse  of  time  in 
equity.  A  resulting  trust  from,  the  payment  of  purchase  money  is  barred  by  the  statute, 
Strimpfler  v.  Roberts,  18  Penn.  St.  R.  300. 

An  executor  or  administrator  is  a  trustee  for  legatees,  next  of  kin,  or  creditors,  and  the 
general  rule  applies,  Lindsai/  v.  Lindsay,  1  Desaus.  150,  Carr  v.  Boh,  7  Dana,  417,  Blee 
V.  Patterson,  1  Dev.  &  Batt.  Eq.  457,  Bird  v.  Graham,  1  Ired.  Eq.  196,  (except  where  there 
is  some  statutory  limitation,  as  there  is  indeed  in  most  of  the  States,)  though  there  will  be 
a  presumption  of  payment  after  a  great  lapse  of  time.  Bird  v.  Graham,  ul  supr.  Graham 
V.  Torrance  1  Ired.  Eq.  210.  Shearing.  Eaton,  Id.  282.  Graham  v.  Davidson,  2  Dev.  &  Batt. 
155.  Tatex.  Connor,  2  Dev.  Eq.  224.  Hudson  v.  Hudson,  3  Rand.  117.  Hayes  v.  Good,  7 
Leigh,  452.  Skinner  v.  Skinner,  1  J.  J.  Marsh.  594.  Hill  on  Trustees,  page  264,  2d  Am.  Ed. 
by  Wharton. 


28  OF  NOTICES  OF  ACTION, 

A  notice  of  action  is  also  in  some  cases  required  to  be  given,  to  the 

party  or  parties  against  whom  it  is  intended  to  be  brought,  in 
[  *29  ]     order  to  give  them  *an  opportunity  of  tendering  amends.(a) 

Thus,  by  the  statute  24  Geo.  II.  c.  44,  it  is  enacted,  that  "  no 
writ  shall  be  sued  out  against,  nor  any  copy  of  any  process  at  the  suit  of 
a  subject  shall  be  served  on,  any  justice  of  the  peace,  for  any  thing  by 
him  done  in  the  execution  of  his  office,  until  yiotice  in  writing  of  such  in- 
tended writ  or  process  shall  have  been  delivered  to  him,  or  left  at  the 
usual  place  of  his  abode,  by  the  attorney  or  agent  for  the  party  who  in- 
tends to  sue  or  cause  the  same  to  be  sued  out  or  served,  at  least  one 
calendar  month  before  the  suing  out  or  serving  the  same ;  in  which  notice 
shall  be  clearly  and  explicitly  contained  the  cause  of  action,  which  such 
party  hath  or  claimeth  to  have  against  such  justice  of  the  peace :  on  the 
back  of  which  notice  shall  be  indorsed  the  name  of  such  attorney  or  agent, 
together  with  the  place  of  his  abode ;  who  shall  be  entitled  to  have  the 
fee  of  twenty  shillings  for  the  preparing  and  serving  such  notice,  and  no 
more. (5)  And  no  evidence  shall  be  permitted  to  be  given  by  the  plaintiff, 
on  the  trial,  of  any  cause  of  action,  except  such  as  is  contained  in  the 
notice,  (c)  [a] 

It  has  been  deemed  sufficient,  to  entitle  a  justice  to  the  benefit  of  this 
statute,  that  he  conceived  himself  to  be  acting  as  a  justice,  though  what  he 
did  was  not  in  the  regular  execution  of  his  office.(cZ)  And  accordingly,  the 
lord  of  the  manor,  who  was  also  a  justice  of  the  peace,  was  held  to  be  enti  tied 
to  a  month's  notice  of  action  against  him,  for  taking  away  a  gun  in  the  house 
of  an  unqualified  person. (g)  So,  one  magistrate  who  had  committed  the 
mother  of  a  bastard  to  prison,  for  not  filiating  the  child,  was  holden  to  be 
entitled  to  the  notice  of  action  required  by  the  statute,  though  by  the  18 
Eliz.  c.  3,  §  2,  jurisdiction  over  the  subject  matter  is  given  to  two  magis- 
trates.(/)  And  where  a  justice  of  the  peace  does  not  act  under  colour  of  his 
office,  though  he  exceed  his  jurisdiction,  he  is  entitled  to  notice,  before  an 
action  can  be  brought  against  him  \{g)  but  where  he  does  not  act  colore 
officii,  a  notice  is  unnecessary. (7i)  And  no  notice  is  necessary,  to  support 
an  action  against  a  person,  for  the  penalty  given  by  the  statute  18  Geo.  II. 
c.  20,  for  acting  as  a  justice,  without  a  proper  qualification. (2)  The  notice 
to  a  justice  of  the  peace  must  express  the  nature  of  the  tvrit  or  process 
intended  to  be  sued  out,  as  well  as  of  the  cause  of  action  :{k)  And  where 
the  notice  was  not  indorsed  with  the  place  of  abode  of  the  attorney,  but 
concluded  thus — "  Given  under  my  hand  at  Durham,  this day  of 

,"  &c.  it  was  deemed  insufficient.(Z)     But  a  notice  to  a 

[  *30  ]    magistrate  *need  not  specify  the/orm  of  action  intended  to  be 

brought :  It  is  sufficient  if  it  state  the  writ  or  process,  and  the 

{a)  Append.  Chap.  I.  \  1,  &c.  N.  B. — The  references  are  to  the  seventh  edition  of  the 
Practical  Forms,  which  were  originally  intended  as  an  Appendix  to  the  Practice,  and  are  re- 
ferred to  accordingly  throughout.  (b)  |  1.  (c)  §  4. 

(d)  Birdy.  Gunston,  E.  24  Geo.  III.  K.  B.,  2  Chit.  Rep.  459,  S.  C,  and  see  8  East,  113. 
9  East,  365.  3  Campb.  242.  3  Maule  &  Sel.  580.  2  Price,  126.  10  Moore,  63.  2  Bing.  483, 
S.  C.     3  Bing.  78.     10  Moore,  376,  S.  C.     Post,  31. 

(e)  2  H.  Blac.  114.  (/)  9  East,  364.     2  Campb.  199,  n. 

Iff)  1  Barn.  &  Cres.  12.     2  Dowl.  &  Ryl.  43,  S.  C,  and  see  1  Car.  &  P.  459,  466,  n.  669. 
(/ij  2  Barn.  &  Cres.  729.     4  Dowl.  &  llyl.  283,  S.  C.     6  Barn.  &  Cres.  351.     Ante,  20. 
{i)  Holt  Ni.  Pri.  458.  [k]  7  Durnf.  &  East,  631. 

(l)  Taylor  y.  Fenwick,  M.  23  Geo.  III.  K.  B.  7  Durnf.  &  East,  635.  3  Bos.  &  Pul.  553.('a.) 
S.  C.  cited. 

[a]  See  2  Troubat  &  Haley's  Pract.  515,  3d  ed. 


OF  NOTICES  OF  ACTION.  30 

cause  of  action  :{a)  and  in  stating  the  cause  of  action,  it  is  sufficient  to 
inform  the  defendant  suhstantially  of  the  ground  of  complaint. (i)  Where 
notice  of  action  is  given  to  a  magistrate,  under  the  2-4  Geo.  II.  c.  44,  it  is 
sufficient,  in  indorsing  the  attorney's  name,  to  put  the  initial  only  of  his 
christian  name,  Avith  his  surname  and  place  of  ahodc,  in  words  at  length  {:c) 
And  where  the  notice  was  signed  T.  and  W.  A.  Williams,  the  names  of 
the  attorneys  for  the  plaintiff  being  Tliomas  Adams  Williams  ?ii\i[William 
Adams  Williams,  it  was  deemed  sufficient. (c?)  The  attorney  giving  the 
notice,  may  describe  himself  generally  of  the  town  in  which  he  resides,  as 
'"'•  oi  Bir7ning1iam,'\e)  or  ^'- Bolt  on  en  le  3Ioo7\-"{f)  though  where  he 
described  himself  in  the  notice  as  of  a  place  in  London,  which  in  fact  Avas 
in  Westminster,  it  was  holdcn  to  be  fatal.(^) 

In  like  manner,  by  the  statute  28  Geo.  III.  c.  37,  §  25,(74)  "no  writ  or 
process  shall  be  sued  out  against  any  officer  of  the  customs  or  excise,  or 
against  any  person  or  persons  acting  by  his  or  their  order,  in  his  or  their 
aid,  for  any  thing  done  in  the  execution  or  by  reason  of  that  or  any  other 
act  or  acts  of  parliament  then  in  force,  or  thereafter  to  be  made,  relating  to 
the  said  revenues,  or  cither  of  them,  until  one  calendar  month  next  after 
notice  in  writing  shall  have  been  delivered  to  him  or  them,  or  left  at  the 
usual  place  of  his  or  their  abode,  by  the  attorney  or  agent  for  the  person  or 
persons  who  intends  or  intend  to  sue  out  such  writ  or  process  as  aforesaid; 
in  which  notice  shall  be  clearly  and  explicitly  contained  the  cause  of  action, 
the  name  and  place  of  abode  of  the  person  or  persons  in  whose  name  such 
action  is  intended  to  be  brought,  and  the  name  and  place  of  abode  of  the  said 
attorney  or  agent  :(^')  and  that  a  fee  oHiventy  shillings,  and  no  more,  shall 
be  paid  for  the  preparing  and  serving  of  every  such  notice."  And,  by  the 
statute  6  Geo.  IV.  c.  108,  §  93,  a  similar  notice  is  required  to  be  given, 
previously  to  the  commencement  of  an  action  against  any  officer  of  the 
army,  navy,  or  marines,  or  against  any  person  acting  under  the  direction 
of  the  commissioners  of  his  majesty's  customs,  for  any  thing  done  in  the 
execution  of,  or  *by  reason  of  his  office.  On  the  former  of  these 
statutes  it  has  been  holden,  that  notice  of  action  against  a  custom-    [  *31  ] 

house  officer,  for  breaking  the  plaintiff's  dwelling  house  in  C 

street,  in  the  Parish  of  G ,  is  not  a  sufficient  notice  of  the  plaintiff's 

place  of  abode.(a) 

An  extra  man,  not  appointed  by  the  board  of  excise,  is  holden  to  be  en- 
titled to  the  benefit  of  the  statute  28  Geo.  III.  c.  37,  §  25 ;  or  at  least  he  is 

(a)  2  Campb.  196. 

(h)  5  Barn.  &  Aid.  837.  1  Dowl.  &  Ryl.  497,  S.  C,  and  see  M'Clel.  k  Y.  4(59,  but  see  2 
Chit.  Rep.  673. 

(c)  7  Taunt.  63.  2  Marsh.  377,  S.  C.  In  Crookc  v.  C'/m/,  Durham  Sum.  Assiz.,  1789, 
Thomson,  B.  held,  that  the  attorney's  name  and  place  of  abode  being  in  the  body,  instead  of 
on  the  back  of  the  notice,  was  sufiicient,  on  the  grounds  of  the  intent  of  the  statute  being, 
that  the  justice  might  be  able  to  tender  amends  to  the  party  or  his  attorney,  and  of  the 
case  oi  Rex  v.  Bigg,  (3  P.  Wms.  419.  1  Str.  18,)  in  which  a  writing  on  the  inside  of  a  bank 
note,  was  holden  to  be  properly  described  as  an  indorsement,  even  in  an  indictment  for 
forgery.     Sedqucere?  and  see  7  Durnf.  <fc  East,  634,  5. 

(d)  4  Barn.  &  Ores.  681.     6  Dowl.  &  Ryl.  625.     2  Car.  &  P.  237,  S.  C. 
{fi)  3  Bos.  &  Pul.  551. 

(/)  Crooke  r.  Curry,  Durham  Sum.  Assiz.,  1789,  but  Thomson,  B.  there  said,  ^^  London, 
Manchester,  or  other  such  large  town,  generally,  would  not  be  sufficient." 

(g)  6  Esp.  Rep.  138. 
'    (A)  And  see  the  statutes  23  Geo.  III.,  c.  70,  ?  30,  32,  and  24  Geo.  III.,  sess.  2,  c.  47,  ?  35, 
.which  latter  statute,  however,  is  repealed  by  6  Geo.  IV.,  c.  105. 

(i)  Append.  Chap.  I.,  g  7,  8,  9. 

(a)  3  Taunt.  127. 


31  OF  NOTICES  OF  ACTION. 

entitled  to  it,  as  a  person  actingimder  an  excise  officer,  if  he  be  sent  to  make 
a  search,  though  no  regular  officer  be  present. (6)  And  an  excise  officer  is 
entitled  to  notice,  before  an  action  is  brought  against  him,  for  an  act  not  war- 
ranted by  his  official  capacity,  if  done  bo7id  fide,  in  the  supposed,  execution 
of  his  duty;  such  as  the  assaulting  of  an  innocent  person,  whom  he  suspects 
to  be  a  smuggler  employed  in  running  goods  :{c)  for  otherwise,  he  would 
never  be  entitled  to  notice,  except  in  cases  where  he  did  not  needit.(6?)  But 
a  constable  detaining  a  person  by  direction  of  a  custom-house  officer,  who 
had  himself  no  power  to  detain  him,  is  not  within  the  protection  of  the  act, 
there  being  no  pretence  that  he  was  acting  within  the  scope  of  his  author- 
ity.(<3)  And  where  a  revenue  officer,  having  seized  goods  as  forfeited,  which 
were  not  liable  to  seizure,  takes  a  sum  of  money  of  the  owner  to  release 
them,  an  action  for  money  had  and  received  will  lie  to  recover  it  back, 
though  the  officer  has  not  had  a  month's  notice  previous  to  bringing  the  ac- 
tion.(/)  The  month  begins  the  day  on  which  the  notice  is  served  :(^)  and 
the  action,  we  have  seen, (A)  must  be  brought  within  three  months  (which 
are  holden  to  be  lunar  months,)(z)  after  the  cause  of  it  accrued  :  so  that  the 
notice  must  be  served  one  calendar  month  at  least  before  the  expiration  of 
three  lunar  months  from  the  time  of  the  cause  of  action. 

The  statute  39  Geo.  III.  c.  Ixix.  §  184,  directs,  that  the  West  India 
Dock  Company/  shall  sue  in  the  name  of  their  treasurer,  in  all  actions  by 
or  on  behalf  of  the  company,  and  that  he  shall  be  sued  for  the  recovery  of 
any  claim  or  demand  upon,  or  of  any  damages  occasioned  by  the  com- 
pany ;  and  §  185,  after  extending  the  protection  of  the  statute  24  Geo.  II. 
c.  44,  for  privileging  justices  of  peace,  in  actions  brought  against  them  as 
such,  to  the  Lord  Mayor  and  Aldermen  of  London,  acting  under  this  act 
beyond  the  limits  of  the  city,  directs  that  "  no  action  shall  be  commenced 
against  an^  person  or  p)ersons,  for  any  thing  done  in  pursuance  or  under 
colour  of  this  act,  until  after  fourteen  days  notice  in  writing,  or  after 
tender  of  amends,  &c. :"  upon  which  it  has  been  holden,  that  the  trea- 
surer of  the  company  is  a  person  within  the  said  clause ;  and  being  sued 
*for  an  act  done  by  the  company,  which  induced  an  injury  to 
[  *32  ]  the  plaintiffs,  was  entitled  to  such  notice  before  the  action 
brought. (a)  And  there  are  similar  provisions  in  the  act  relating 
to  the  London  Dock  company.(5) 

By  the  building  act,(c)  "  no  action  or  suit  shall  be  commenced  against 
any  person  or  persons,  for  any  thing  done  in  pursuance  of  that  act,  until 
tiventy-one  days  after  notice  in  writing,  of  an  intention  to  bring  such  ac- 
tion or  suit,  has  been  given  to  the  person  or  persons  against  whom  it  shall 
be  brought."  And,  by  the  statute  43  Geo.  III.  c.  99,  §  70,  for  consolida- 
ting the  provisions  in  the  acts  relating  to  the  duties  under  the  manage- 

(b)  2  Smith  R.  220. 

(c)  5  Durnf.  &  East,  1.  Davtj  v.  Hoslcms,  M.  23  Geo.  III.,  C.  P.  S.  P.,  and  see  1  Car.  &  P. 
466,  n.  4  Barn.  &  Ores.  200.  6  Dowl.  &  Ryl.  257,  S.  C.  4  Barn.  &  Cres.  2G9.  But  per 
Heath,  J.  he  is  not  entitled  to  notice,  for  any  collateral  act. 

(d)  Per  Lawrence,  J.,  2  Smith  R.  223,  and  see  9  East,  365.     3  Camp.  242. 

(e)  2  Chit.  Rep.  140,  and  see  6  Barn.  &  Cres.  351. 

(/)  4  Durnf.  &  East,  485,  and  see  5  East,  122.     1  Barn.  &  Aid.  42.     2  Barn.  &  Cres.  729. 
4  Dowl.  &  Ryl.  283,  S.  C,  accord,  but  see  4  Durnf.  &  East,  553,  semb.  contra. 
[g)  3  Durnf.  &  East,  623.  (A)  Ante,  20. 

(i)  6  Durnf.  &  East,  224.     8  Moore,  265.     1  Bing.  307,  S.  C. 
[a)  5  East,  115,  and  see  Holt  Ni.  Pri.  27.     7  Taunt.  1. 
(6)  39  &  40  Geo.  III.  c.  xlvii.  §  150,  51. 
(c)  14  Geo.  III.  c.  78,  §  100,  and  see  4  Barn.  &  Cres.  269.    G  Dowl.  &  Ryl.  3G0,  S.  C. 


OF  NOTICES  OF  ACTION.  32 

mcnt  of  the  commissioners  for  the  ail^iirs  of  taxes,  "  no  writ  or  process 
shall  be  sued  out,  for  the  commencement  of  any  action  or  suit,  against  any 
person  or  persons,  for  any  thing  done  in  pursuance  of  that  act,  or  any  act 
for  granting  duties  to  be  assessed  under  the  regulations  of  that  act,  until 
one  calendar  month  next  after  notice  in  writing  shall  have  been  delivered 
to,  or  left  at  the  usual  place  of  abode  of  such  person  or  persons,  by  the 
attorney  or  agent  for  the  intended  plaintiff  or  plaintiffs ;  in  which  notice 
shall  be  clearly  and  completely  contained  the  cause  and  causes  of  action, 
the  name  and  place  or  places  of  abode  of  the  intended  plaintiff  or  plain- 
tiffs, and  of  his  or  their  attorney  or  agent :  and  no  evidence  shall  be  given, 
on  the  trial  of  such  action  or  suit,  of  any  cause  or  causes  of  action,  other 
than  such  as  is  or  are  contained  in  such  notice."  It  is  not  necessary  to 
give  a  notice  of  action  on  this  statute,  where  assumpsit  is  intended  to  be 
brought,  for  money  had  and  received,  to  recover  the  amount  of  an  exces- 
sive charge  made  by  the  defendants  as  collectors,  on  a  distress  for  arrears 
of  taxes. (t7)  And  a  sheriff,  who  levies  arrears  of  taxes,  under  48  Geo.  III. 
c.  1-41, (e)  is  not  entitled  to  notice  of  an  action  to  be  brought  against  him, 
for  any  thing  done  under  the  provisions  of  that  act.(/) 

By  the  statute  57  Geo.  III.  c.  99,  §  40,  "  no  writ  shall  be  sued  out 
against,  nor  any  copy  of  any  process,  at  the  suit  of  any  informer,  be  served 
upon  any  spiritual  person,  for  any  penalty  or  forfeiture  incurred  under 
any  of  the  provisions  of  that  act,  until  a  notice  in  writing  of  such  intended 
writ  or  process  shall  have  been  delivered  to  him,  or  left  at  the  usual  or 
last  place  of  his  abode,  and  also  to  the  bishop  of  the  diocese,  by  leaving 
the  same  at  Jhe  registry  of  his  diocese,  by  the  attorney  or  agent  for  the 
party  who  intends  to  sue  or  cause  the  same  to  be  sued  out  or  served,  one 
calendar  month  at  the  least  before  the  suing  out  or  serving  of  the  same ; 
in  which  notice  shall  be  clearly  and  explicitly  contained  the  cause  of  ac- 
tion, which  such  party  hath  or  claimeth  to  have,  and  the  penalty  or  penal- 
ties for  which  such  person  intends  to  sue ;  and  on  the  back  of  which 
notices  respectively  shall  be  indorsed  the  name  of  such  attorney 
or  agent,  together  with  the  place  of  his  abode ;  and  no  *such  [  *33  ] 
notice  shall  be  given  before  the  first  day  of  Ai^ril,  in  the  year 
next  after  any  such  penalty  or  penalties  shall  have  been  incurred."  By 
the  statute  6  Geo.  IV.  c.  10,  §  41,  "  no  writ  shall  be  sued  out  against,  nor 
copy  of  any  process  served  on  any  commissioner  of  bankrupt,  for  any 
thing  by  him  done  as  such  commissioner,  unless  notice  in  writing,  of  such 
intended  writ  or  process,  shall  have  been  delivered  to  him,  or  left  at  his 
usual  place  of  abode,  by  the  attorney  or  agent  for  the  party  intending  to 
sue,  or  cause  the  same  to  be  sued  out  or  served,  at  least  one  calendar 
month  before  the  suing  out  or  serving  the  same  ;  and  such  notice  shall  set 
forth  the  cause  of  action  which  such  party  has  or  claims  to  have  against 
such  commissioner ;  and  on  the  back  of  such  notice  shall  be  indorsed  the 
name  of  such  attorney  or  agent,  together  with  the  place  of  his  abode,  who 
shall  receive  no  more  than  tiventy  shillings  for  preparing  and  serving 
such  notice."  And,  by  §  42,  "no  such  plaintiff  shall  recover  any  verdict 
against  such  commissioner,  in  any  case  where  the  action  shall  be  grounded 
on  any  act  of  the  defendant  as  commissioner,  unless  it  is  proved  upon  the 
trial  of  such  action,  that  such  notice  was  given  as  aforesaid ;  but  in  default 
thereof,  such  commissioner  shall  recover  a  verdict  and  costs  as  thereinafter 

(d)  1  Barn.  &  Aid.  42.  (c)  No.  V.  Rule,  2. 

(/)  8  -Moore,  400.     1  Blng.  SCO,  S.  C. 


33  OF  NOTICES  OP  ACTION. 

mentioned  ;(a)  and  no  evidence  shall  be  permitted  to  be  given  by  the 
plaintiff,  on  the  trial  of  any  such  action,  of  any  cause  of  action,  except 
such  as  is  contained  in  the  notice."  And  lastly,  by  the  statutes  7  &  8 
Geo.  IV.  c.  29,  §  75,  and  c.  30,  §  41,  "  notice  in  writing  of  an  action,  for 
any  thing  done  in  pursuance  of  the  acts  for  consolidating  and  amending 
the  laws  relative  to  larceny^  &c.,  and  malicious  injuries  to  property,  and 
of  the  cause  thereof,  shall  be  given  to  the  defendant,  one  calendar  month 
at  least  before  the  commencement  of  the  action." 

A  separate  notice  to  each  of  several  persons  intended  to  be  sued  in  tres- 
]mss,  has  been  deemed  sufficient  to  found  a  joint  action  against  all  of  them, 
for  things  done  in  pursuance  of  an  act  of  parliament ;  although  none  of  the 
other  persons,  who  were  afterwards  joined  in  the  action,  were  named  in 
the  notice  to  either  of  them. (J)  But  where  one  person  acted  as  clerk  to 
two  public  bodies,  and  a  notice  of  action  required  by  statute  was  given, 
addressed  to  him  as  clerk  to  one  body,  the  cause  of  action  arising  under 
the  authority  of  the  other  body,  the  court  of  Common  Pleas  held  that  the 
notice  was  insufficient. (c)  And  a  notice  of  action,  under  an  act  of  parlia- 
ment against  a  toll-gate  keeper,  "  for  demanding  and  taking  toll,  for  and 
in  respect  of  certain  matters  and  things  particularly  mentioned  and  ex- 
empted from  the  payment  of  toll,  in  and  by  a  certain  act  of  parliament, 
intituled,  &c.,"  is  too  uncertain,  and  bad.((^) 

For  the  protection  of  constables,  &c.,  acting  in  obedience  to  the  warrant 
of  a  magistrate,  it  is  enacted  by  stat.  24  Geo.  II.  c.  44.  §  6,  that 
[  *34  ]  "no  *action  shall  be  brought  against  any  constable,  headborough 
or  other  officer,  or  against  any  person  or  persons  ^.cting  by  his 
order  and  in  his  aid,  for  any  thing  done  in  obedience  to  any  warrant  under 
the  hand  or  seal  of  any  justice  of  the  peace,  until  dcynand  hath  been  made,(«) 
or  left  at  the  usual  place  of  his  abode,  by  the  party  or  parties  intending  to 
bring  such  action,  or  by  his,  her  or  their  attorney  or  agent,  in  writing, 
signed  by  the  party  demanding  the  same,  of  the  perusal  and  copy  of  such 
warrant,  and  the  same  hath  been  refused  or  neglected  for  the  space  of  six 
days  after  such  demand :  And  in  case,  after  such  demand  and  compliance 
therewith,  by  showing  the  said  warrant  to,  and  permitting  a  copy  to  be 
taken  thereof,  by  the  party  demanding  the  same,  any  action  shall  be  brought 
against  such  constable,  &c.,  without  making  the  justice  or  justices,  who 
signed  or  sealed  the  said  warrant,  defendant  or  defendants,  that  on  produc- 
ing and  proving  such  warrant  at  the  trial  of  such  action,  the  jury  shall  give 
their  verdict  for  the  defendant  or  defendants,  notwithstanding  any  defect  of 
jurisdiction  in  such  justice  or  justices :  And  if  such  action  be  brought 
jointly  against  such  justice  or  justices,  and  also  against  such  constable,  &c. 
then,  on  proof  of  such  warrant,  the  jury  shall  find  for  such  constable,  &c. 
notwithstanding  such  defect  of  jurisdiction  as  aforesaid :  And  if  the  verdict 
shall  be  given  against  the  justice  or  justices,  in  such  case  the  plaintiff  or 
plaintiffs  shall  recover  his,  her  or  their  costs  against  him  or  them ;  to  be 
taxed  in  such  manner,  by  the  proper  officer,  as  to  include  such  costs  as  the 
plaintiff  or  plaintiffs  are  liable  to  pay  to  the  defendant  or  defendants,  for 
whom  such  verdict  shall  be  found." 

The  intent  of  these  provisions  was  to  prevent  the  constable  or  other 

(«)  See  I  44.  {b)  2  Price,  126,  and  see  5  Price,  168.  (c)  1  Taunt.  383. 

{d)  2  Ciiit.  Rep.  673,  and  see  5  Barn.  &  Cres.  125.    7  Dowl.  &  Ryl.  810,  S.  C. 
(a)  For  the  form  of  the  demand,  see  Append.  Cliap.  I.  §  10,  11. 


OF  TUE  DEMAND,  ETC.  34 

officer,  when  acting  in  obedience  to  his  warrant, (5)  from  being  answerable, 
on  account  of  any  defect  of  jurisdiction  in  the  justice :  Therefore,  if  an 
officer  seize  goods,  in  obedience  to  the  warrant  of  a  magistrate,  whether  that 
warrant  be  legal  or  not,  he  cannot  be  sued,  until  a  previous  demand  has 
been  made  of  a  copy  of  it.(t')  And  a  constable,  executing  the  warrant  of  a 
justice  of  peace,  if  sued  in  trespass  without  the  magistrate,  is  within  the 
protection  of  the  statute,  and  entitled  to  a  verdict,  on  proof  of  such  warrant; 
having  first  complied  with  the  plaintiff's  demand  of  a  perusal  and  copy  of 
it,  before  the  action  brought,  though  not  within  six  days  after  such  demand, 
as  the  act  directs. (tZ)  But  where  a  constable  of  one  hundred  took  upon 
him  to  execute  a  warrant  out  of  his  own  hundred,  directed  to  the  constable 
of  another  hundred  byname,  "and  to  all  other  peace  officers  in  the  county 
oi  Kent ;''  this  was  holden  not  to  be  a  case  within  the  protection 
of  the  statute.(<')  So,  where  goods  were  taken  under  a  *warrant  [  *35  ] 
of  distress,  granted  by  a  justice  of  peace  for  the  county  of  Kent, 
directed  to  the  constables  of  the  lower  half-hundred  of  C.  and  G.  in  the 
county  of  Kent,  if  it  turn  out,  that  the  warrant  was  executed  within  the 
jurisdiction  of  the  cinque  ports,  and  not  in  the  county  of  Kent,  the  consta- 
bles who  executed  it  are  not  entitled  to  the  benefit  of  the  statute,  but  may 
be  sued  in  trespass,  without  the  magistrate  being  made  a  defendant. (aa) 
And  where  the  defendants,  in  order  to  levy  a  poor's  rate  under  a  warrant 
of  distress  granted  by  two  magistrates,  broke  and  entered  the  plaintiff's 
house,  and  broke  the  windows,  &c.  the  court  held  that  they  might  be  sued 
in  trespass,  without  a  previous  demand  of  the  perusal  and  copy  of  the 
warrant.  (J) 

It  has  been  determined,  that  a  cTiurchivarden  or  overseer  of  the  poor, 
taking  a  distress  for  a  poor's  rate,((?)  or  a  gaoler,  receiving  and  detaining  a 
prisoner, ((:?)  under  a  warrant  of  magistrates,  is  entitled  to  the  protection  of 
the  statute,  in  having  the  magistrates  made  defendants  with  him,  in  an  action 
of  trespass.  '  And  a  constable,  who  merely  acts  in  aid  of  a  parish  officer,, 
in  levying  a  distress  for  poor  rates ;  under  a  warrant  of  magistrates  directed 
to  such  officer,  is  not  liable  to  an  action  of  trespass,  although  a  demand  was 
duly  made  on  such  constable,  in  pursuance  of  the  statute. (c)  But  an  action 
of  ?'epZt;ymisholdennotto  be  an  action,  within  the  meaning  of  the  statute. (/) 
And  the  act  extends  only  to  actions  of  trespass,  or  tort :  Therefore,  where 
an  action  for  money  had  and  received  was  brought  against  an  officer,  who 
had  levied  money  on  a  conviction  by  a  justice  of  the  peace,  the  conviction 
having  been  quashed,  it  was  holden  that  a  demand  of  a  copy  of  the  warrant 
was  not  necessary. (</)  In  cases  to  which  the  act  applies,  if  the  plaintiff's 
attorney  make  out  two  papers  precisely  similar,  purporting  to  be  demands 
of  a  copy  of  the  warrant,  pursuant  to  the  statute,  and  sign  both  for  his  client^ 

(i)  3  Bur.  1742.  1  Blac.  Rep.  555,  S.  C.  3  Esp.  Rep.  22G.  2  Maule  &  Sel.  259.  1  Car. 
&  P.  41,(<;). 

(c)  2  Bos.  &  Pul.  158.     3  Esp.  Rep,  96,  S.  C.  (d)  5  East,  445. 

((?)  1  H.  Blac.  15,  n.  and  see  3  Barn.  &  Aid.  330,  but  see  stat.  5  Geo.  IV.  c.  18,  ?  6,  which 
authorizes  constables  to  execute  warrants  out  of  their  prcciucts,  provided  it  be  within  the 
jurisdiction  of  the  justices  granting  or  backing  the  same. 

(aa)  5  East,  233. 
I   (b)  2  Maule  &  Sel.  259,  and  see  2  Bos.  k  Pul.  158.     G  Barn.  &  Crcs.  232. 

(c)  Bui.  Ni.  Pri.  24.    7  Durnf.  &  East,  270.  (rf)  I  Gow,  97. 

(e)  4  Moore,  4G5. 

(/)  2  Blac.  Rep.  1330,  G  East,  283,  but  see  Willes,  6G3.     7  Durnf.  &  East,  270,  contra. 

Iff)  Bui  m  Pri.  24.  Anle,  31,  2. 

Vol.  l— 4 


35  OF  THE  DEMAND,  ETC. 

and  then  deliver  one  to  the  defendant,  the  other  will  be  sufficient  evidence 
at  the  trial. (/t) 

The  benefit  of  the  statute  24  Geo.  II.  c.  44,  §  1,  was  extended  to  commis- 
sioners of  bankrupt,  by  the  statute  G  Geo.  IV.  c.  16,  §  31,  by  which  it  is 
enacted,  that  "  no  action  shall  be  brought  against  any  person  appointed  by 
commissioners  of  bankrupt,  for  anything  done  in  obedience  to  their  warrant, 
prior  to  the  choice  of  assignees,  unless  demand  of  the  perusal  and  copy  of 
such  warrant  hath  been  made,  or  left  at  the  usual  place  of  abode,  of  such 
person  or  persons,  by  the  party  or  parties  intending  to  bring  such  action,  or 
by  his  or  their  attorney  or  agent,  in  writing,  signed  by  the  party  or  parties 
demanding  the  same,  and  unless  the  same  hath  been  refused  or 
[  *36  ]  neglected  for  six  days  after  such  demand :  and  if,  *after  such 
demand  and  compliance  therewith,  any  action  be  brought  against 
the  person  so  appointed  as  aforesaid,  without  making  the  petitioning  creditor 
or  creditors  defendant  or  defendants,  if  living,  on  producing  and  proving  such 
warrant  at  the  trial  of  such  action,  the  jury  shall  give  their  verdict  for  the 
defendant,  notwithstanding  any  defect  of  jurisdiction  in  the  commissioners; 
and  if  such  action  be  brought  against  the  petioning  creditor  or  creditors, 
and  the  person  so  appointed  as  aforesaid,  the  jury  shall,  on  proof  of  such 
warrant,  give  their  verdict  for  the  person  so  appointed,  notwithstanding 
any  such  defect  of  jurisdiction  ;  and  if  the  verdict  shall  be  given  against  the 
petitioning  creditor  or  creditors,  the  plaintiff  or  plaintiffs  shall  recover  his, 
her  or  their  costs  against  him  or  them,  to  be  taxed  so  as  to  include  such 
costs  as  the  plaintiff  or  plaintiffs  are  liable  to  pay  to  the  person  so  appointed 
as  aforesaid." 

Having  thus  stated  what  is  necessary  to  be  done  by  the  plaintiff,  before 
the  commencement  of  the  action,  it  may  be  proper  to  add,  that  where  it 
is  meant  to  be  defended  on  the  ground  of  a  terider  of  the  debt,  such  tender 
should  be  made  before  the  action  is  brought :  And  a  tender  of  sufficient 
amends  may  be  made,  by  the  statute  21  Jao.  L,  c.  16,  §  5,  in  an  action 
for  an  involuntary  trespass  to  real  property. (a)[l] 

(h)  2  Bos.  &  Pul.  39,  and  see  4  Esp.  Rep.  203.     Peake's  Evid.  5  Ed.  104.     2  Campb.  110. 
7  Moore,  112,  3  Bred.  &  Bing.  288,  S.  C.     1  Car.  &  P.  41. (a)     6  Bam.  &  Cres.  394. 
(a)  1  Str.  549. 

[1]  Before  the  statute  3  &  4  W.  IV.,  c.  98,  the  tender  should  regularly  have  been  made 
in  lawful  money  of  England;  which  is  of  two  sorts,  viz.,  English  money,  coined  by  the 
King's  authority,  or  foreign  coin,  made  current  by  his  royal  proclamation  within  the  realm, 
Co.  Lit.  207  ;  the  latter  was  considered  as  a  good  tender,  Wade's  case,  5  Co.  114,  b. ;  and 
though  banli  notes  were  not  made  a  legal  tender,  by  the  statute  37  Geo.  III.,  c.  45,  Grigby 
V.  Oahes,  2  Bos.  &  P.  526,  and  see  stat.  56  Geo.  IIL,  c.  68,  §  11,  by  which  gold  coin  was 
declared  to  be  the  only  legal  tender ;  yet  a  tender  in  Bank  of  England,  or  country  bank 
notes,  was  good,  unless  specially  objected  to  on  that  account  at  the  time.  Wright  v.  Reed,  3 
Durnf.  &  E.  554.  Broivn  v.  Saul,  4  Esp.  Rep.  261,  per  Ld.  Ellenborough,  Ch.  J.  Saunders  v. 
Graham,  Gow,  Ul,per  Dallas,  Ch.  J.  Polglass  v.  Oliver,  2  Cromp.  &  J.  15.    2  Tyr.  Rep.  89. 

1  Price  N.  R.  133,  S.  C.  The  same  doctrine  was  applied  to  a  draft  on  a  banker,  pe?-  Buller,J., 
in  117%  v.  Warren,  Sit.  Md.  after  M.  T.  28  Geo.  III.  K.  B.,  Tidd  Prac.  9  Ed.  187  :(m)  and  in 
one  case  it  was  holden,  that  a  tender  in  a  Liverpool  bank  bill  of  exchange  was  good,  if  not 
specially  objected  to,  Lockyer  v.  Jones,  Peake  Cas.  Ni.  Pri.  180,  n.  ;  but,  in  a  subsequent 
case,  the  tender  of  a  Bristol  bank  bill  was  holden  not  to  be  good,  although  the  party  made 
no  objection  as  to  the  form  of  the  tender,  3Iills  v.  Safford,  id.  ib.,  and  see  Polglass  v.  Oliver, 

2  Cromp.  &  J.  15.  2  Tyr.  Rep.  89,  S.  C.  And  for  the  doctrine  of  tender  in  general,  and  in 
what  cases  it  is,  or  is  not  allowed,  at  common  law,  or  by  statute  ;  at  what  time,  by  and  to 
whom,  and  in  what  manner  it  should  be  made ;  and  when  and  how  it  should  be  pleaded, 
&c.,  see  Tidd  Sup.  1830,  p.  10,  &c.  And  now,  by  the  statute  3  &  4  W.  IV.,  c.  98,  \  6,  it  is 
enacted,  that  "  from  and  after  the  1st  day  of  ^-Iw^ms^,  1834,  unless  and  until  parliament  shall 
otherwise  direct,  a  tender  of  a  note  or  notes  of  the  Governor  and  Company  of  the  Bank  of 


OF  THE  JURISDICTION  OF  THE  COURTS.  *37 


•CHAPTER  II. 

Of  the  Jurisdiction  of  the  Courts  of  King's  Bench,  Common  Pleas, 
and  Exchequer  ^/ Pleas,  in  personal  Actions;  and  of  the  Judges, 
Advocates,  and  Officers  of  the  Courts. 

The  Court  of  King's  Bench  has  an  original  jurisdiction  in  actions  for 
trespasses  vi  et  arniis,  committed  in  Middlesex,  or  other  county,  -svhere 
the  court  sits  :{aa)  and  it  has  by  degrees  acquired  a  jurisdiction,  which  it 
exercises  by  original  writ,  against  peers  of  the  reahn,  and  members  of  the 
house  of  commons  :  and  against  corporations,  and  hundredors  on  the 
statute  7  &  8  Geo.  IV.,  c.  31  ;  and  in  all  personal  actions,  brought  against 
any  person  not  being  a  jirisoner  in  the  actual  custody  of  the  marslial,  nor 
privileged  as  an  attorney  or  officer  of  the  court.  It  has  likewise  jurisdic- 
tion by  bill,  in  all  personal  actions,  brought  against  prisoners  in  the  actual 
custody  of  the  marshal,  or  persons  who  have  put  in  bail  upon  a  cepicorpxis^ 
or  habeas  corpus,  and  who  are  still  for  this  purpose  supposed  to  be  in 
custody.(6)  On  which  latter  ground,  the  court  is  enabled,  by  a  fiction,  to 
hold  plea  by  bill,  in  all  personal  actions  whatever ;  for,  by  feigning  a 
complaint  of  trespass,  over  which  the  court  has  an  inherent  jurisdiction, 
the  plaintiff  is  allowed,  when  the  defendant  is  brought  in  on  such  com- 
plaint, to  waive  or  abandon  it,  and  to  exhibit  his  bill  and  declare  against 
him  as  a  prisoner,  for  any  other  species  of  injury.(c)  This  court  has  also 
jurisdiction  in  all  personal  actions,  brought  by  or  against  its  attorneys  and 
officers  ;{d)  who  are  entitled  to  sue  therein  by  attachment  of  privilege,  and 
must  be  sued  by  bill:  And  members  of  the  house  of  commons  may  be  sued 
therein  by  bill  and  summons,  &c.,  in  consequence  of  the  statute  12  &  13 
W.  III.,  c.  3,  §  2. 

The  court  of  Common  Pleas  has  a  concurrent  jurisdiction  with  the  court 
of  King's  Bench,  in  all  personal  actions.  This  jurisdiction  is  exercised, 
first,  by  original  writ,  issuing  out  of  Chancery ;  which,  however,  is  seldom 
issued,  except  where  it  is  necessary  in  consequence  of  a  writ  of 
error,  after  *a  judgment  by  default :  Secondly,  by  writ  of  capias  [  *38  ] 
quare  clausumf regit,  which  supposes  an  original  to  have  issued, 

(aa)  TTje'sJusfilizarii,  28. 

(b)  Id.  ih. 

(f)  R.  E.  15  Geo.  II.,  m/.  1.  K.  B.  Cowp.  455.  And,  for  an  account  of  the  jurisdiction  in 
general  of  the  court  of  King's  Bench,  and  of  that  in  particular  which  it  e.xercises  in  civil 
actions  by  bill,  see  Sul.  Lect.  XXXII.,  p.  300,  &c.  3  Blac.  Com.  42.  2  H.  Blac.  2T1,  299, 
300.  And  see  further,  as  to  the  jurisdiction  of  the  King's  Bench  in  personal  actions,  by 
oru/inal  writ,  Steph.  PL  4,  5,  b}-  bil/,  LI.  52,  <kc.,  and  by  aitachmenl  of  privilege,  Id.  58. 

(d)  4  Inst.  71,  72.     2  H.  Blac.  270,  299. 

England,  expressed  to  be  payable  to  bearer  on  demand,  shall  be  a  legal  tender,  to  the  amount 
expressed  in  such  note  or  notes;  and  shall  be  taken  to  be  valid,  as  a  tender  to  such  amount, 
or  all  sums  above  Jive  pounds,  on  all  occasions  on  which  any  tender  of  money  shall  be 
legally  made,  so  long  as  the  Bank  of  Enyland  shall  continue  to  pay  on  demand  their  said 
notes  in  legal  coin.  Provided  always,  that  no  such  note  or  notes  shall  be  deemed  a  legal 
tender  of  payment,  by  the  Governor  and  Company  of  the  Bank  of  England,  or  any  branch 
bank  of  the  said  Governor  and  Company :  but  the  said  Governor  and  Company  are  not  to 
become  liable,  or  be  required  to  pay  and  satisfy,  at  any  branch  bank  of  the  said  Governor 
and  Company,  any  note  or  nolcs  of  the  said  Governor  and  Company,  not  made  specially 
payaVile  at  such  branch  bank ;  but  the  said  Governor  and  Company  shall  be  liable  to  pay 
and  satisfy,  at  the  bank  of  England  in  London,  all  notes  of  the  said  Governor  and  Company, 
or  of  any  branch  thereof." 


38  OF  THE  JURISDICTION  OF  THE  COURTS. 

and  is  the  ordinary  mode  of  commencing  actions  in  this  court :  Thirdly, 
by  attachment  of  privilege,  at  the  suit  of  attorneys  and  officers  of  the 
court :  and  fourthly,  by  hill  against  attorneys  and  officers,  or  members  of 
the  house  of  commons. (a)  This  court  has  also  jurisdiction,  exclusive  of 
the  King's  Bench  in  all  rea/,  and  the  greater  part  of  mixed  actions :  and 
writs  of  haleas  co7'pus,  and  prohibition,  may  be  moved  for  therein,  as  well 
as  in  the  King's  Bench  ;  though  it  is  more  usual  to  move  for  the  writ  of 
habeas  corpus  in  the  latter  court. 

It  should  also  be  observed,  that  personal  actions  are  either  commenced 
originally,  by  the  means  which  have  been  stated,  in  the  courts  of  King's 
Bench  and  Common  Pleas ;  or  are  removed  thither  from  inferior  courts  by 
writ  of  certiorari  or  habeas  corpus  before  judgment,  or  by  writ  of  error 
after  judgment,  from  such  as  are  of  record;  or  by  writ  oi  pone,  recordari 
facias  loquelam,  or  accedas  ad  curiam,  before  judgment,  or  by  writ  of 
false  judgment  afterwards,  from  such  as  are  not  of  record  :  and  both  courts 
have  the  power  of  punishing  their  own  officers,  or  other  persons,  for  a 
contempt,  by  attachment. 

The  court  of  Pleas,  in  the  Exchequer,  is  holden  before  the  barons  ;{bb) 
and  has  jurisdiction  of  all  causes  which  concern  the  king's  profit  or 
revenue, (cc)  as  of  debts  or  duties  to  the  king  ;{dd)  and  of  matters  which 
relate  to  tenures  of  the  king  in  capite,  as  of  an  honour  or  manor,(e)  &c., 
or  which  concern  the  lands,  rents,  franchises,  hereditaments,  goods  and 
chattels  of  the  king.(/)  So,  one  who  is  indebted  to  the  king,  may  sue 
his  debtor  in  the  court  of  Pleas,  in  the  Exchequer,  upon  a  suggestion  of 
quo  minus,  &c.,  or  that  he  is  thereby  the  less  able  to  satisfy  his  majesty, 
the  debts  which  he  owes  to  him.(^)  And  the  court  of  pleas  has  jurisdic- 
tion in  all  personal  actions,  where  the  plaintiff  or  defendant  has  privilege 
as  an  officer  or  minister,(7i)  or  the  defendant  is  a  prisoner,(^)  of  the  court. 
But  the  plaintiff  cannot  proceed  in  this  court  by  07-iginal  writ ;  and  there- 
fore the  defendant  cannot  be  outlawed  therein. (Z::) 

There  are  three  sorts  of  privilege  in  this  court :  First,  as  debtor ;  sec- 
ondly, as  accountant ;  and  thirdly,  as  officer  of  the  court.  Against  the 
first  of  these,  any  man  who  hath  a  special  privilege  in  another  court,  as 
an  officer  of  the  court  or  attorney,  shall  have  his  privilege.  But  if  an 
accountant  begin  his  suit  here,  no  privilege  shall  be  allowed  elsewhere ; 
because  he  has  a  special  privilege,  by  reason  of  his  attendance  to  pass  his 
account,  in  which  the  king  hath  a  particular  concern.  The  same 
[  *39  ]  holds  *with  regard  to  an  officer  of  the  court :  If  he  commence  a 
suit  here,  no  privilege  in  another  court  shall  prevail  against  him ; 
because  his  attendance  here  is  requisite,  and  his  privilege  here  is  first  at- 
tached by  commencing  his  suit.  But  when  the  accountant  has  finished 
his  account,  and  reduced  it  to  a  certainty,  so  that  it  is  become  a  debt,  then 
he  is  only  privileged  as  a  general  debtor.  So,  a  servant  to  an  officer  or 
minister  of  the  court  has  no  privilege  against  a  privileged  person  else- 
where, (a)     And,  accordingly,  where  the  plaintiff,  as  debtor  to  the  king, 

(a)  See  further,  as  to  the  jurisdiction  of  the  Common  Pleas  in  personal  actions,  hj  original 
■writ,  Steph.  PI.  4,  5,  by  attachment  of  privilege.  Id.  58.  and  by  bill,  Id.  52,  &c. 

{bh)  4  Inst.  109.  {cc)  Id.  112.  (dd)' Id.  103,  110,  112.    2  Inst.  551. 

\e)  4  Inst.  110. 

(/)  4  Inst.  112.     2  Inst.  551,  and  see  the  statute  33  Hen.  VIII.,  c.  39,  §  56,  7. 

(^r)  2  Inst.  551.    4  Inst.  112.    Plowd.  208,  a.  [h)  Id.  ibid. 

[i)  2  Inst.  551,  and  see  Com.  Dig.  tit.  Courts,  D.  2.  \k)  1  Price,  309. 

{a)  Hardr.  365. 


OF  TUE  JUDGES.  39 

and  treasurer  of  the  navy,  exhibited  his  bill  in  this  court,  and  the  defend- 
ant pleaded  his  privilege,  as  one  of  the  six  clerks  in  Chancery,  under  the 
great  seal ;  Hah,  chief  baron,  and  the  court  held,  that  a  general  privilege 
as  debtor,  will  not  hold  against  a  special  privilege ;  but  against  a  general 
privilege  it  •will :  and  a  privilege  as  accountant  will  hold  against  a  special 
privilege  in  another  court,  as  officer  of  the  court  or  otherwise ;  though  it 
be  not  alleged,  that  he  has  entered  upon  his  account ;  and  in  this  case  the 
plaintiff,  being  treasurer  of  the  navy,  is  eo  ipso  an  accountant  in  the  Ex- 
chequer :(6)  But  it  must  be  averred,  that  he  is  present  in  court  on  his 
account,  (c) 


The  judges  of  the  courts  of  King's  Bench  and  Common  Pleas  are,  in 
each  court,  the  Lord  Chief  Justice,  created  by  writ,  and  three  ]misne 
judges,  created  by  letters  patent ;  who,  by  the  statute  12  &  13  W.  III.  c. 
2.,  hold  their  places  (fiamdiu  hene  se  gesserint,  and  not  as  formerly,  du- 
rante bene  j^lacito.  In  the  court  of  Pleas  in  the  Exchequer,  the  judges 
are  the  Chief  Baron,  and  three  puisne  barons,  who  are  created  by  letters 
patent  •,{d)  and  were  formerly  barons  and  peers  of  the  realm. (<;)  And,  by 
the  statute  1  Geo.  III.  c.  23.,  enacted  at  the  earnest  recommendation  of 
the  king  himself  from  the  throne,  the  judges  are  continued  in  their  offices 
during  their  good  behaviour,  notwithstanding  any  demise  of  the  crown, 
(which  was  formerly  holden(/)  immediately  to  vacate  seats,)  his  majesty 
having  been  pleased  to  declare,  that  he  looked  upon  the  independence  and 
uprightness  of  the  judges,  as  essential  to  the  impartial  administration  of 
justice;  as  one  of  the  best  securities  of  the  rights  and  liberties  of  his  sub- 
jects ;  and  as  most  conducive  to  the  honour  of  the  crown. (^) 

Before  the  making  of  the  statute  1  &  2  Geo.  IV.  c.  1(3.  a  practice  had 
prevailed,  for  the  judges  of  the  court  of  King's  Bench  to  sit  in  Sergeants 
Inn  Hall,  some  days  previous  to  the  commencement  of  Hilary, 
Easter,  and  *Michaelmas  terms,  and  hear  special  arguments  on  [  *40  ] 
demurrers,  writs  of  error,  special  verdicts,  special  cases,  and  new 
trials,  &c.,  upon  which  they  delivered  their  opinions,  except  in  cases  re- 
served for  further  consideration,  and  judgment  was  afterwards  formally 
pronounced  in  the  following  term. (a)  By  the  above  statute,  the  judges  of 
the  court  of  King's  Bench  were  enabled  and  required,  for  the  despatch  of 
matters  depending  in  the  said  court,  to  sit,  at  certain  times  therein  men- 
tioned, before  Hilary,  Easter  and  Michaelmas  terms  respectively :  But 
that  statute  was  repealed  by  the  3  Geo.  IV.  c.  102.,  which  authorizes  his 
majesty,  "by  warrant  under  his  sign  manual,  directed  to  the  judges  of  the 
said  court,  to  direct  and  require  the  judges  of  the  said  court,  or  any  two 
or  more  of  them,  to  meet  at  Sergeants  Inn  Hall,  Westminster  Hall,  or  some 
other  convenient  place  to  be  by  them  appointed,  on  such  and  so  many  days 

(6)  Hardr.  316,  and  seo  Bro.  Abr.  tit.  Privilege^  16,  25.  1  Lutw.  44,  46.  Sty.  Rep.  339. 
W.  Jon.  288.     2  Salk.  546. 

(c)  Bro.  Abr.  tit.  Brief,  342,  and  see  Man.  Ex.  Pr.  143,  4.     Steph.  PI.  5,  53,  4,  59,  60. 

\d)  Mad.  582.     4  Inst.  117. 

\e)  4  Inst.  103  in  marg.,  and  see  Com.  Dig.  tit.  CourU,  D.  10.  (/)  2  Ld.  Ryara.  747. 

Iff)  Com.  Journ.  3  mt  r.  17C1.  And  for  the  salaries  of  the  chief  justices  of  tlie  King's 
Bench  and  Common  Pleas,  see  stat.  6  Geo.  IV.  c.  82,  3,  and  for  those  of  the  Master  of  the 
Rolls,  Vice-Chancellor,  Chief  Baron  of  the  Exchequer,  puisne  judges  and  barons,  see  stat.  6 
Geo.  IV.  c.  84.     And  for  the  sa/aries  of  the  judges  in  India,  &c.,  see  stat.  6  Geo.  IV.  c.  85. 

(a)  1  Maiile  &  Sel.  304,  (a).  2  Maule  &  Sel.  1,  (a).  1  Barn.  &  Aid.  1,  (a).  218,  (a).  2  Barn. 
&  Aid.  2,(a)  and  see  7  Taunt.  192. 


40  OF  THE  JUDGES. 

in  the  vacation  or  interval  between  any  terms,  as  to  his  majesty  shall  seem  fit 
and  proper,  for  the  despatch  of  such  matters  as,  at  the  end  of  the  term  men- 
tioned in  such  warrant,  maybe  depending  in  the  said  court,  whether  on  the 
eroivn  or  plea  side  thereof:  which  warrant  shall  be  made  and  issued  ten  days 
at  the  least  before  the  end  of  the  term  preceding  the  vacation  mentioned  in 
such  Avarrant,  for  the  meeting  of  the  judges  for  the  dispatch  of  business  as 
aforesaid ;  and  the  issuing  of  such  warrant  shall,  tJiree  days  before  the 
end  of  the  said  term,  be  openly  and  publicly,  in  the  said  court  of  King's 
Bench,  notified  and  declared,  and  be  afterwards  published  in  the  London 
Crazette:  And  when  and  so  often  as  any  such  warrant  shall  be  made  and 
directed  to  the  judges  of  the  said  court,  the  same  judges,  or  any  two  or 
more  of  them,  are  authorized  and  required,  unless  prevented  by  illness, 
public  business,  or  other  reasonable  cause  to  meet,  in  pursuance  of  such 
warrant,  for  the  dispatch  of  such  matters  as  aforesaid,  or  of  so  much  and 
such  parts  thereof  as  may  appear  to  such  judges  chiefly  to  require  dis- 
patch, and  as  may  be  then  most  conveniently  dispatched,  and  to  hear,  de- 
cide, and  pronounce  rules,  orders,  and  judgments  thereupon  ;  which  rules, 
orders  and  judgments,  shall  be  drawn  up  and  entered  of  record,  either  of 
the  term  last  past  before  the  pronouncing  thereof,  or  as  of  the  term  then  next 
ensuing,  as  the  said  judges  shall  direct :  And  that  all  enlarged  rules  to 
show  cause,  which  may  be  pronounced  or  drawn  up  by,  or  by  the  direc- 
tion of  the  said  court,  for  showing  cause  in  any  term  next  after  any 
of  such  sittings  directed  by  such  warrant  as  aforesaid,  shall  be  deem- 
ed and  taken  to  be  rules  to  show  cause,  as  well  at  such  sittings,  as 
in  the  term  then  next  following,  and  may  be  heard  and  decided  in  such 
sittings  accordingly :  Provided,  that  nothing  therein  contained  shall  alter 
or  affect  the  return  of  any  writ,  either  mesne  or  judicial,  or  require  any 
return  of  such  writ,  or  appearance  thereto,  before  the  day  therein  men- 

tioned."(6)  *This  act  of  parliament  is  to  be  construed  liberally, 
[  *41  ]   for  the  dispatch  of  business ;  and  therefore,  it  has  been  holden 

that  an  affidavit  sworn  during  term,  is  sufficient  to  bring  the  sub- 
ject matter  before  the  court,  "as  a  matter  depending  in  the  court,"  within 
the  terms  of  the  act,  and  the  king's  warrant  founded  thereon. (a) 

The  judges,  upon  their  circuits,  sit  by  virtue  of  five  several  authorities: 
1.  the  commission  of  the  peace :  2.  a  commission  of  oyer  and  terminer : 
3,  a  commission  of  general  gaol  delivery :  4.  a  commission  of  assize, 
directed  to  the  justices  and  Serjeants  therein  named,  to  take  (together  with 
their  associates,)  assizes  in  the  several  counties,  that  is,  to  take  the  verdict 
of  a  peculiar  species  of  jury,  called  slu  assize,  and  summoned  for  the  trial  of 
landed  disputes  :  5.  their  authority  at  nisi  p'ius  is  by  the  commission  of 
assize,{bb)  being  annexed  to  the  office  of  justices  of  assize,  by  the  statute  of 
Westm.  2,  (13  Edw.  I.)  c.  30,  which  empowers  them  to  try  all  questions 
of  fact,  issuing  out  of  the  courts  at  Westminster,  that  are  then  ripe  for  trial 
by  jury.(c)  And,  by  a  late  act  of  parliament,(c?)  "  whenever  it  shall  happen 
that  the  commissions,  under  which  the  judges  sit  upon  their  circuits,  shall 
not  be  opened  and  read,  in  the  presence  of  one  of  the  quo^mm  commission- 
ers, at  anyplace  specified  for  holding  the  assizes,  on  the  very  day  appointed 

[b)  For  the  first  warrant  issued  on  this  statute,  see  2  Dowl.  &  Rjl.  439, (a)  and  see  1  Barn. 
&Cres.  288,(a).  657,(«).  2  Barn.  &  Cres.  112,((z).  3  Barn.  &Cres.  HS.fa).  738,(a).  5  Dowl. 
&  Ryl.  629,(a).    4  Barn.  &  Cres.  899,(«).    5  Barn.  &  Cres.  797,(0).     6  Barn.  &  Cres.  268,(aj. 

(a)  7  Dowl.  &  Ryl.  382.  [bb)  2  Salk.  454.  (c)  3  Blac.  Com.  59. 

{d)  3  Geo.  IV.,  c.  10. 


OF  ADVOCATES,  OR  COUNSEL,  41 

for  such  purpose,,  it  shall  and  may  be  lawful  to  open  and  read  the  same,  in 
the  presence  of  one  of  the  quorum  commissioners  therein  named,  on  the 
following  day,  or,  if  such  following  day  shall  be  a  Sunday,  or  any  other 
day  of  public  rest,  then  on  the  succeeding  day;  and  such  opening  and  read- 
ing thereof  shall  be  as  effectual,  to  all  intents  and  purposes,  as  if  the  same 
had  been  opened  and  read,  in  the  presence  of  one  of  the  quorum  commis- 
sions, on  the  very  day  appointed  for  that  purpose,  and  shall  be  deemed 
and  taken  to  be  an  opening  and  reading  thereof,  on  the  day  for  that  purpose 
appointed:  and  all  records  and  other  proceedings,  under  or  relating  to  any 
commission,  which  may  be  opened  and  read  by  virtue  of  that  act,  shall  and 
may  be  drawn  up,  entered,  and  made  out,  under  the  same  date,  and  in  the 
same  form,  in  all  respects,  as  if  such  commission  had  been  opened  and  read 
on  the  day  originally  appointed  for  that  purpose  :  Provided,  that  the  judges 
and  quorum  commissioners  are  directed  and  required  to  have  such  commis- 
sions opened  and  read,  on  the  very  days  appointed  for  that  purpose,  unless 
the  same  shall  be  prevented  for  the  pressure  of  business  elsewhere,  or  by 
some  unforeseen  cause  or  accident." 

The  advocates,  or  counsel,  who  next  claim  our  attention,  are  of  two  spe- 
cies or  degrees  ;  barristers,  and  Serjeants.  Before  a  student  can  be  called  to 
the  bar,  it  is  requisite  that  he  should  be  a  member  oi  five  years  standing,  at 
one  of  the  four  principal  inns  of  court;  unless  he  has  taken  the  degree  of 
Master  of  Arts,  or  Bachelor  of  Laws,  at  one  of  the  universities  of  Oxford, 
Cambridge,  ov  Dublin ;  in  which  case  three  jenra  standing  will  be  suffi- 
cient ;  and  he  must  keep  at  least  tzvelve  terms,  by  dining  in  commons,  or 
being  present  at  least  four  days  in  every  term  ;  that  is  to  say,  ttvo 
days  *in  each  of  iwo  separate  full  weeks  in  each  term  :  And,  unless  [  *42  ] 
a  certificate  be  produced,  of  his  being  a  member  of  the  college  of 
advocates  in  Scotland,  or  member  of  one  of  the  said  universities  of  Oxford, 
Cambridge,  or  Dublin,  he  must  make  a  deposit  of  XlOO,  previously  to  his 
entering  into  commons,  which  is  allowed  him  on  being  called  to  the  bar: 
And,  after  being  called,  he  must,  within  six  calendar  months,  take  the  oaths 
of  allegiance  and  supremacy,  and  subscribe  the  declaration  against  popery  ; 
or,  if  a  roman  catholic,  the  declaration  and  oath  prescribed  by  the  statute 
31  Geo.  III.  c.  32,  in  one  of  the  courts  at  Westminster,  or  at  the  general  or 
quarter  sessions  of  the  place  where  he  shall  reside ;  which  oaths  may  be 
taken,  and  the  declarations  subscribed,  in  the  King's  Bench,  before  a  single 
judge,  in  the  bail  court.(«) 

Serjeants  at  law  are  appointed,  or  called,  at  the  pleasure  of  the  king,  by 
writ  issuing  out  of  chancery ;  And,  by  a  late  act  of  parliament(6)  his 
majesty  may,  in  vacation,  cause  a  writ  to  be  issued,  directed  to  any  barris- 
ter*, calling  him  to  the  degree  of  a  scjeant  at  law;  and  such  persons  as  his 
majesty  may  be  pleased  to  call,  are  authorized  to  take  upon  themselves  that 
office,  in  vacation.  From  both  the  above  degrees,  some  are  usually  selected, 
to  be  his  majesty's  counsel  learned  in  the  laAV ;  the  two  principal  of  Avhom 
are  called  his  attorney,  and  solicitor  general.  And  a  custom  has  of  late 
years  prevailed,  of  granting  letters  patent  of  precedence,  to  such  barristers 
as  the  crown  thinks  proper  to  honour  with  that  mark  of  distinction  ;  whereby 
they  are  intitled  to  such  rank  and  pre-audience,  as  are  assigned  in  their 
respective  patents;  sometimes  next  after  the  king's  attorney-general,  but 
usually  next  after  his  majesty's  counsel  then  being.     These  (as  well  as  the 

(a)  Stat.  1  Geo.  IV.,  c.  55,  ?  4.  (b)  6  Geo.  IV.,  c.  95. 


42  OF  THE  OFFICERS  OF  THE  COURTS. 

queen's  attorney  and  solicitor-general,)((?)  rank  promiscuously  with  the 
kino-'s  counsel,  and  together  with  them  sit  within  the  bar  of  the  respective 
courts.  The  king's  counsel  have  a  standing  salary,  and  cannot  be  employed 
in  any  cause  against  the  crown,  without  special  license ;  but  those  who  have 
merely  patents  of  precedence  receive  no  salaries,  and  are  not  sworn  ;  and 
therefore  are  at  liberty  to  be  retained  in  causes  against  the  crown. (c^) 

By  a  mandate  of  his  late  majesty,(g)  the  king's  attorney  and  solicitor- 
general  are  now  to  have  place  and  audience,  before  the  king's  premier 
Serjeant ;  and  the  following  may  be  considered  as  the  order  of  precedence, 
or  pre-audience,  which  obtains  among  practisers  :  1.  The  king's  attorney- 
general :  2.  The  king's  solicitor-general:  3.  The  king's  jpremz'er  serjeant, 
(so  constituted  by  special  patent :)  4.  The  king's  ancient  Serjeant,  or  the 
eldest  among  the  king's  Serjeant's:  5.  The  king's  advocate-general :  6.  The 
king's  Serjeants  :  7.  The  king's  counsel,  or  those  who  have  patents  of  pre- 
cedence, with  the  queen's  attorney  and  solicitor-general :  8.  Serjeant's  at 
law:  9.  The  recorder  of  London:  10.  Advocates  of  the  civil  law;  and 
lastly.  Barristers.  In  the  court  of  Exchequer;  two  of  the  most 
[  *43  ]  experienced  *barristers,  called  the  postmari,  and  the  tubman, 
(from  the  place  in  which  they  sit,)  have  also  precedence  in 
motions. (aa) 

The  officers  of  the  court  of  King's  Bench,  on  the  crown  side,  are  the 
clerk  of  the  crown,{bb)  or  king's  coroner  and  attorney,  usually  called  the 
master  of  the  crown  office,  who  holds  his  place  for  life,  by  letters  patent  un- 
der the  great  seal,  and  has  the  appointment  of  the  secondary,  clerk  of  the 
rules,  examiner,  calendar,  keeper,  clerk  of  the  grand  juries,  and  clerks  in 
court;  and,  on  thepZea  side,  ^\q  prothonotary,  or  chief  clerk  for  enrolling' 
pleas,  in  civil  causes  depending  between  party  and  party,  and  particularly 
by  bill;{c)  the  secondary,  or  deputy  to  the  chief  clerk,  usually  called  the 
master  of  the  King's  Bench  office,  and  his  assistant;  the  clerk  of  the 
treasury  ;[d)  the  keeper  of  the  writs  and  records  of  the  court,  commonly 
called  the  custos  brevium,{e)  who  has  annexed  to  his  office,  the  making  up 
of  records  of  nisi  prius,  except  in  Middlesex;  the  Jilacer,{f)  exigenter, 
and  clerk  of  the  outlatvries,{g)  for  proceedings  by  original  writ ;  the  signer 
of  writs,  and  signer  of  bills  of  Middlesex ;  the  clerk  of  the  rules;  the  clerk 
oi  i\i.Q  i^ayers  ;[h)  the  clerk  of  the  declarations  ;  the  clerk  of  the  common 
bails,  posteas,  and  estreats;  the  clerk  of  the  dockets,  commitments,  and 
satisfactions  ;  the  clerks  of  the  in7ier  and  upper  treasury  ;  the  clerk  of  the 
outer  treasury;  the  clerk  of  nisi  prius  in  London,  and  other  cities,  and  on 
the  several  circuits  ;  the  clerk  of  nisi prius  for  Middlesex  ;  the  clerk  of  the 
errors  ;  and  bag  bearer,  on  the  plea  side  of  the  court. 

Before  the  making  of  the  statute  6  Geo.  IV.  c.  82,  the  several  offices  of 
chief  clerk,  clerk  of  the  treasury,  and  custos  brevium,  and  filacer,  exi- 
genter,  and  clerk  of  the  outlawries^  of  the  court  of  King's  Bench,  were  in 

(c)  Seld.  tit.  hon.  1,  6,  7.  (d)  3  Blac.  Com.  27,  8. 

(e)  14  Bee.  1811.  (aa)  3  Blac.  Com.  28. 

(bb)  Show.  P.  C.  Ill,  and  see  Cas.  temp.  Talb.  97. 

(c)  1  Ch.  Cas.  20.    Show.  P.  C.  111.    Skin.  354. 

(d)  This  officer  is  required  to  appoint  a  person  to  attend  in  the  treasury,  that  the  clerks 
may  have  access  to  the  rolls.    R.  T.  1656,  reff.  2,  K.B.  (e)  1  Lev.  1.  1  Sid.  74. 

(/)  This  officer  is  appointed  to  sign  original  writs,  and  all  writs  and  process  issuing  thereon, 
before  the  appearance  of  the  defendant.  R.  H.  30  Car.  II.,  R.  H.  31  Car.  II.,  and  R.  E.  31  Car. 
II.  K.  B.    See  also  R.  M.  15  Car.  I.  K.  B.,  and  Trje'sjws  fil.per  tot. 

(g)  Trye,  inpref.  (A)  i  Vent.  296.    2  Mod.  95,  S.  C. 


OF  THE  OFFICERS  OF  THE  COURTS.  43 

the  gift  of  the  Lord  Chief  Justice  of  the  same  court,  and  deemed  to  he 
saleable  by  him,  as  and  when  the  same  from  time  to  time  became  vacant ; 
and  the  several  offices  of  clerk  of  the  rules  on  the  plea  side,  clerk  of  the 
jjapers  on  the  pica  side,  clerk  of  the  declarations,  clerk  of  the  common 
bails,  estreats,  and  jmsteas,  and  clerk  of  the  dockets  of  the  same  court, 
were  in  the  gift  of  the  said  chief  clerk,  and  deemed  to  be  saleable  by  him ; 
and  the  several  offices  of  clerks  of  the  imier  and  outer  treasury,  clerks  of 
nisiprius  in  London,  and  other  cities,  and  on  the  several  circuits,  and  bag 
bearer,  on  the  plea  side  of  the  same  court,  were  in  the  gift  of  the  said 
eustos  brevium,  and  deemed  to  be  saleable  by  him ;  and  the  said  several 
offices  were  held  for  the  respective  lives  of  the  persons  then  holding  the 
same,  (or  for  the  life  of  the  survivor  of  two  persons,  where  the  office  was 
then  vested  in  two  persons,)  and  the  emoluments  thereof  were  derived 
entirely  from  the  fees  payable  by  the  suitors  of  the  same  court ; 
and  some  thereof  were,  and  for  "many  years  had  been,  executed  [*  44  ] 
by  deputy  :{a)  But  now,  by  the  above  statutc,(6)  it  is  enacted, 
that  "  the  said  offices  of  chief  clerk,  clerk  of  the  treasury,  and  cmtos  bre- 
vium, and  filacer,  exigenter,  and  clerk  of  the  outlawries,  shall  from  and 
after  the  passing  of  that  act,  and  the  said  several  offices  thereinbefore 
mentioned  to  be  in  the  gift  of  the  said  chief  clerk,  shall  from  and  after 
the  time  when  the  said  office  of  chief  clerk  shall  become  vacant,  and  the 
said  several  offices  thereinbefore  mentioned  to  be  in  the  gift  of  the  said 
eustos  breviian,  shall  from  and  after  the  time  when  the  said  office  of  eustos 
brevium  shall  become  vacant,  be  disposed  of,  and  all  appointments  to  the 
said  respective  offices,  as  they  may  respectively  become  vacant,  shall  be 
made,  according  to  the  directions  of  that  act,  and  not  otherwise :  And  all 
and  every  the  persons  to  be  so  appointed  to  the  said  several  offices,  shall 
continually  execute  the  same  in  person,  and  not  by  deputy,  unless  for 
some  reasonable  cause  to  be  allowed  as  thereinafter  mentioned;  and  every 
such  officer  and  his  deputy,  to  be  appointed  according  to  the  directions  of 
that  act,  shall  be  deemed  and  taken  to  be  a  public  accountable  officer,  to 
all  intents  and  purposes,  and  shall  severally  account  for  the  fees  and 
emoluments  of  his  office,  according  to  the  directions  of  that  act.  And  that 
all  appointments  to  the  said  several  offices,  to  be  made  by  virtue  of  that 
act,  shall  be  made  by  the  Lord  Chief  Justice  of  the  said  court  for  the  time 
being,  by  warrant  under  his  hand  and  seal,  without  any  fee,  gratuity,  or 
reward,  to  be  directly  or  indirectly  paid  or  received  for  the  same ;  and 
every  such  appointment  shall  be  made,  and  shall  be  in  such  warrant  ex- 
pressed to  be  made,  during  the  good  behaviour  of  the  person  appointed, 
and  for  so  long  time  only  as  the  person  appointed  shall  execute  the  same 
in  person  :  Provided  always,  that  no  such  office  shall  be  vacated,  by  reason 
of  the  officers  not  executing  the  office  in  person,  if  he  shall  execute  the 
same  by  some  deputy  to  be  appointed  by  virtue  of  that  act ;  nor  in  cases 
of  occasional  illness,  or  other  like  necessary  cause  of  absence,  not  conti- 
nuing more  than  two  months  at  any  one  time."  And,  by  the  same 
statute,((?)  "the  several  offices  of  clerk  of  the  ^j'r/?crs,  and  clerk  of  the 
declarations,  shall,  so  soon  as  an  appointment  thereto  may  be  made  by 
authority  of  that  act,  be  consolidated  into  one  office,  and  be  executed  by 
one  and  the  same  person." 

The  master  and  his  assistant,  and  signer  of  the  zvrits,  are  appointed  by, 

(a)  Stat.  6  Geo.  IV.  c.  82,  §  1.  (6)  §  1,  2.  (c)  §  8. 


44  OF  THE  OFFICERS  OF  THE  COURTS. 

and  hold  their  situations,  during  the  pleasure  of  the  chief  clerk.  The 
chief  justice  has  also  the  appointment  of  the  clerk  of  the  errors,  and  clerk 
of  nisi  prius  for  Middlesex,  whose  business  it  is  to  transcribe  from  the 
plea  rolls,  the  records  of  nisi  priiis  in  that  county,  and  to  examine  and 
seal  the  same,  and  to  receive  and  file  the  warrants  of  attorney  on  the  plea 
side  of  the  court.  The  three  other  judges  have  the  appointment  of  signer 
of  bills  of  Middlesex  ;  and  each  of  the  judges  appoints  his  own  clerk. 

The  officers  of  the  .court  of  Common  Pleas  are  the  three  prothonotaries  ; 
the  three  secondaries  ;  the  filacers ;  the  clerk  of  the  exigents  ; 
[  *45  ]  the  clerk  of  *the  supersedeases  ;  the  clerk  of  the  outlawries  ;  the 
clerk  of  the  reversal  of  outlawries  ;  the  clerk  of  the  king's  silver ; 
the  clerk  of  the  jurata  ;  the  clerk  of  the  juries  ;  the  clerk  of  the  warrants, 
enrolments,  and  estreats  ;  the  clerk  of  the  essoitis  ;  the  clerk  of  the  dockets  ; 
the  clerk  of  the  judgments ;  the  clerk  of  the  treasury  ;  and  the  clerk  of 
the  errors. 

Before  the  making  of  the  statute  6  Geo.  IV.  c.  83,  the  several  offices  of 
chief  and  third  prothonotaries,  clerk  of  the  king's  silver,  clerk  of  the 
jurata,  clerk  of  the  essoitis,  clerk  of  the  warrants,  enrolments,  and  estreats, 
exigenter,  clerk  of  the  supersedeas,  filacers  for  all  the  counties  in  England, 
and  clerk  of  the  errors  in  the  Exchequer  Chamber,  were  appointed  by  the 
Lord  Chief  Justice  of  the  Common  Pleas,  and  were  saleable  by  him,  as 
and  when  the  same  from  time  to  time  became  vacant ;  And  the  offices  of 
second  prothonotary,  and  clerk  of  the  juries,  were  appointed  by  the  said 
Lord  Chief  Justice,  on  the  nomination  of  the  custus  hrevium  ;  for  which 
last  mentioned  appointment  the  said  Lord  Chief  Justice  had  been  deemed 
entitled  to,  and  had  always  received,  whenever  such  appointments  had 
been  made,  certain  fees ;  and  each  of  the  three  prothonotaries  of  the  said 
court  had  the  appointment  of  one  secondary :  and  the  said  several  offices 
were  held  for  the  respective  lives  of  the  persons  then  holding  the  same,  and 
the  emoluments  thereof  were  derived  entirely  from  the  fees  payable  by  the 
suitors  of  the  same  court ;  and  some  of  such  offices  were,  and  for  many  years 
past  had  been,  executed  by  deputy.  But  now,  by  the  above  statute,(a)  it 
is  enacted,  that  "the  said  offices  of  chief  and  ^/^/rc?  prothonotaries,  clerk 
of  the  king's  silver,  clerk  of  the  jurata,  clerk  of  the  essoins,  clerk  of  the 
luarrants,  enrolmejits,  and  estreats,  exigenter,  clerk  of  the  supersedeas, 
filacers  for  all  the  counties  in  England,  and  clerk  of  the  errors  in  the 
Exchequer  Chamber,  shall  be  disposed  of,  and  all  appointments  to  the 
said  respective  offices,  as  they  may  respectively  become  vacant,  shall  be 
made,  according  to  the  directions  of  that  act,  and  not  otherwise :  And  all 
and  every  the  persons  to  be  so  appointed  to  the  said  several  offices,  shall 
continually  execute  the  same  in  p>erson,  and  not  by  deputy,  unless  for  some 
reasonable  cause  to  be  allowed  as  thereinafter  mentioned :  And  every  such 
officer  and  his  deputy,  to  be  appointed  acccording  to  the  directions  of  that 
act,  shall  be  deemed  and  taken  to  be  a  public  accountable  officer,  to  all 
intents  and  purposes,  and  shall  severally  account  for  the  fees  and  emolu- 
ments of  his  office,  according  to  the  directions  of  that  act.  And  that  all 
appointments  to  the  several  offices,  to  be  made  by  virtue  of  that  act,  shall 
be  made  by  the  Lord  Chief  Justice  of  the  said  court  for  the  time  being, 
by  warrant  under  his  hand  and  seal,  without  any  fee,  gratuity,  or  reward, 
to  be  directly  or  indirectly  paid  to,  or  received  for  the  same,  by  the  Lord 


OF  THE  OFFICERS  OF  THE  COURTS.  45 

Chief  Justice,  or  any  judge  of  the  said  court;  and  every  such  appoint- 
ment, except  the  appointment  of  the  filacers^  shall  be  made,  and  shall  be 
in  such  warrant  expressed  to  be  made,  during  the  good  behaviour  of  the 
person  appointed,  and  for  so  long  a  time  only  as  the  person  appointed 
shall  execute  the  same  in  person :  Provided  always,  that  no 
*such  office  shall  be  vacated,  by  reason  of  the  officer's  not  exe-  [  *46  ] 
cuting  his  office  in  person,  if  he  shall  execute  the  same  by  some 
deputy,  to  bo  appointed  by  virtue  of  that  act ;  nor  in  cases  of  occasional 
illness,  or  other  like  necessary  cause  of  absence,  not  continuing  more  than 
two  months  at  any  one  time. "(aa) 

"  And  if  any  person  to  be  appointed  by  virtue  of  that  act,  or  of  the 
statute  G  Geo.  IV.,  c.  82,  §  1,  2,  shall  demean  himself  in  any  manner 
contrary  to  the  true  intent  and  meaning  thereof,  or  otherwise  misbehave 
himself,  it  shall  be  lawful  for  the  court,  of  which  he  is  an  officer,  to  hear 
and  decide  upon  such  misbehaviour,  and  also  to  hear  and  determine  all 
complaints  that  may  be  made  against  such  person,  in  a  summary  way ; 
and,  by  rule  of  the  same  court,  to  order  compensation  to  be  made  to  any 
person  injured  by  such  misbehaviour ;  or  to  fine  such  offender,  or  make 
void  his  appointment,  or  punish  the  offender  by  all  or  any  of  the  ways 
aforesaid,  as  to  such  court  in  its  discretion  shall  seem  fit. "(6) 

"Provided  always,  that  in  case  any  officer  to  be  appointed  by  virtue  of 
either  of  the  above  acts,  shall,  by  ill  health  or  other  infirmity,  become 
incapable  of  discharging  the  duties  of  his  said  office,  or  shall  for  any 
other  reasonable  cause  to  be  allowed  by  the  Lord  Chief  Justice  of  the  court 
of  which  he  is  an  officer,  be  desirous  of  being  relieved  from  the  discharge 
of  the  duties  thereof,  either  permanently  or  for  a  certain  time  only,  it 
shall  and  may  be  lawful  for  the  said  Lord  Chief  Justice  to  appoint  some 
fit  and  proper  person  to  act  as  a  deputy  of  such  officer :  the  cause  of  such 
appointment  being  always  distinctly  mentioned  and  specified  in  the  war- 
rant of  such  appointment."(c) 

For  the  purpose  of  uniting  the  two  offices  of  chief  and  third  prothono- 
tary  in  the  same  officer,  it  is  enacted  by  the  statute  6  Geo.  IV.,  c.  83,  § 
12,  that  "  whoever  shall  be  appointed  to  the  first  of  those  offices  that  shall 
become  vacant  after  the  passing  of  that  act,  shall,  on  the  other  of  the  said 
offices  becoming  vacant,  take  upon  himself  and  perform  the  duties  of  the 
other  of  the  said  offices,  and  shall  receive  the  fees  accruing  in  respect  of 
the  said  last  mentioned  office  ;  and  shall  retain  out  of  the  fees  of  the  office 
last  becoming  vacant,  so  much  as  the  Lord  Chief  Jnstice  of  the  said  court 
of  Common  Pleas,  and  the  lord  high  treasurer,  or  any  three  or  more  of  the 
commissioners  of  the  treasury  for  the  time  being,  shall  think  a  reasonable 
compensation  for  his  additional  trouble,  and  shall  account  for  and  pay  the 
residue  of  such  fees  into  his  majesty's  Exchequer,  on  the  first  day  of  every 
term  :  And  the  said  offices  of  cliief  and  third  prothonotary  shall,  after  such 
union  as  aforesaid,  be  always  executed  by  one  officer,  who  shall  be  called 
the  clilcf  prothonotary  of  the  court  of  Common  Pleas,  and  who  shall 
receive  the  fees  payable  in  respect  of  the  offices  of  chief  and  third  pro- 
thonotary, and  account  for  the  same,  in  such  manner  as  may  be  directed 
by  the  lord  high  treasurer  or  commissioners  of  the  treasury  for  the  time 
beiug."((Z) 

{aa)  §  2.  {b)  Stat.  6  Geo.  IV.,  c.  82,  3,  ?  3.  (c)  Id.  {  4. 

(dj'Stat.  6  Geo.  IV.,  c.  83,  I  12. 


46  OF  THE  OFFICERS  OF  THE  COURTS. 

The  duties  of  the  protlionotaries  are,  to  attend  the  sitting  *of 
[  *47  ]  the  court  at  Westminster  hall,  for  the  despatch  of  such  matters 
as  arise  from  causes  entered  in  their  office  ',{a)  to  inform  the  court 
of  the  state  of  such  causes  ;  to  draw  up  general  rules,  for  regulating  and 
settling  the  practice  of  the  court,  and  the  proceedings  therein ;  and  to 
certify  to  the  court  in  matters  of  practice,  when  required.  A  great  variety 
of  matters  arising  out  of  causes  are  referred  to  the  prothonotaries ;  who 
make  reports  thereon  to  the  court,  and  also  on  the  examination  of  persons 
in  contempt  upon  interrogatories.  They  enter,  in  books  kept  in  their  office, 
the  declarations  filed  and  delivered  out  in  all  the  several  causes  passing 
through  their  office,  and  also  the  pleas  and  subsequent  pleadings  between 
the  parties,  the  money  paid  into  and  out  of  court,  the  records  passed  for 
trial,  the  entries  of  issues  joined  between  the  parties,  the  interlocutory 
and  final  judgments  thereon,  writs  of  inquiry  and  executions,  the  bills 
filed  against  privileged  persons,  and  the  appearances  to  such  process  as 
issues  out  of  their  office.  They  inquire  into  and  state  the  debt  and  costs 
on  bills,  bonds,  mortgages  and  other  securities :  name  and  strike  special 
juries,  sign  records  of  nisi  p7-ius,  see  that  all  common  recoveries  are 
carefully  engrossed  on  rolls  of  the  court,  examined,  docketed,  and  placed 
in  their  proper  offices,  and  that  the  writs  belonging  to  the  same  are 
filed  with  the  proper  officer,  and  examine  all  exemplifications  of  such 
recoveries. (5)  They  have  the  custody  of  all  common  and  plea  rolls,((?) 
deliver  the  same  out,(fZ)  and  keep  an  account  of  the  names  of  the 
persons  to  whom  the  rolls  are  delivered,(e)  that  they  may  be  enabled 
to  call  for  their  return,  and  make  caret  papers  of  the  defaulters, (/) 
in  order  to  enforce  their  being  brought  in,  pursuant  to  various  rules 
of  the  court.(^)  They  keep  an  account  of  all  rolls  received  into  their 
office,  after  the  proper  entries  are  made  thereon ;  keep  dockets  of  all 
judgments,  entries,  of  writs,  and  other  entries,  which  they  carefully  exa- 
mine with  the  rolls,  before  they  are  delivered  to  the  proper  officers,  keep 
remembrance  rolls,  in  which  all  rules  made  in  court,  appearances,  and  recog- 
nizances of  bail  on  attachments  of  privilege,  and  jjrascipes  taken  at  bar  on 
common  recoveries,  are  entered.  They  enter  on  a  remembrance  roll,  the 
names  of  all  attorneys  sworn  in  court,  and  make  certificates  thereof  to  the 
clerk  of  the  warrants  ;  and  have  the  custody  of  the  court-books,  in  which 
are  entered  the  names  of  all  causes  on  demurrers,  special  verdicts,  and  other 
matters  which  are  to  be  argued  in  court,  and  of  causes  which  are  to  be  tried 
at  bar,  with  the  respective  terms  and  number-rolls ;  and  take  minutes  of  the 
judgment  of  the  court,  in  all  cases  argued  therein.  And  they  regulate  and 
allow  costs,  on  all  judgments,  rules,  and  judicial  orders;  and  tax  bills  of  costs 
between  attorneys  and  their  clients,  and  settle  and  adjust  accounts 
[  *48  ]  implicated  therein.  *ror  these  purposes,  one  of  the  prothono- 
taries alternately  attends  at  the  office  in  term-time,  from  eleven  to 
tzvo  (except  the  first  and  last  days  of  term,  when  all  attend  the  court ;)  the 

(a)  R.  T.  35  Hen.  IV.,  §  1,  C.  P.     And  for  the  ancient  fees  payable  to  the  prothonotaries, 
see  the  same  rule,  ^  5. 

(b)  R.  M.  1654,  §  6,  C.  P. 

(c)  R.  H.  8   Car.  1,  §  8,  R.  M.  1654,  §  Y,  R.  E.  34  Car.  II.,  reff.  3,  R.  E.  5  W.  &  M.,  reff.  2, 
R.  M.  2  Geo.  I.,  C.  P.     The  plea  rolls  are  in  real,  and  the  common  ones  in  personal  actions. 

(d)  R.  E.  12  Jac.  I.,  §  2,  R.  M.  1649,  R.  M.  1654,  ?  5,  R.  T.  21  Car.  II.,  C.  P. 

(c)  R.  E.  34  Car.  II.  reg.  3  C.  P.  (/)  Same  rule,  R.  M.  2  Geo.  1,  C.  P. 

Iff)  R.  E.  12  Jac.  I.,  R.  M.  1649,  reff.  I,  Z  3,  R.  M.  1654,  I  7,  R.  T.  29  Car.  II.,  reg.  5,  R.  E. 
34  Car.  II.,  reg.  3,  C.  P. 


OF  THE  OFFICERS  OF  THE  COURTS.  48 

others  attending  the  court  during  the  sitting.  In  the  evening,  all  the  pro- 
thonotaries  attend  at  the  office  from  six  to  eight,  and  sometimes  later :  Out 
of  term,  they  all  attend  every  day,  from  eleven  to  two  o'clock. 

The  secondaries  were  formerly  appointed  for  life,  by  the  prothonotaries, 
eacli  of  whom  appointed  one.  But,  by  tlic  statute  (i  CJeo.  IV.  c.  83,  §  13, 
"no  person  who  shall  hereafter  be  aj)pointed  to  the  office  of  chief  or  third 
prothonotary,  or  shall  hold  the  said  two  offices  when  united,  shall  appoint 
a  secondary  ;  but  the  secondary  of  such  prothonotary  shall  be  appointed  by 
the  lord  chief  justice  of  the  said  court  of  Common  Pleas  :  and  all  secondaries 
so  appointed,  shall  hold  their  offices  during  their  good  behaviour,  and  shall 
receive  such  a  proportion  of  the  accustomed  fees  of  the  said  office,  as  the 
lord  chief  justice  of  the  said  court,  and  the  lord  high  treasurer,  or  any  three 
or  more  of  the  commissioners  of  the  treasury  for  the  time  being,  shall  think 
reasonable  ;  and  shall  account  for  and  pay  the  residue  into  his  majesty's 
Exchequer,  on  the  first  day  of  every  term."  And,  by  §  14,  "  the  person 
who  shall  first  be  appointed  secondary,  under  the  provisions  of  that  act, 
shall,  when  the  office  of  secondary  to  the  other  prothonotary  appointed  by 
virtue  of  that  act  shall  become  vacant,  take  upon  himself  and  perform  the 
duties  of  both  of  the  said  secondaries,  and  receive  the  fees,  and  retain  out 
of  the  same  so  much  as  the  said  lord  chief  justice  of  the  said  court,  and 
the  lord  high  treasurer,  or  any  three  or  more  of  the  commissioners  of  the 
treasury  for  the  time  being,  shall  think  a  reasonable  compensation  for  his 
additional  trouble  ;  and  shall  account  for  and  pay  the  residue  of  such  fees 
into  his  majesty's  Exchequer,  on  the  first  day  of  every  term." 

Tiie  duties  of  the  secondaries  are,  constantly  to  attend  the  court  and 
judges  in  the  treasury,  in  term  time;  to  read  all  records,  writings,  affida- 
vits, petitions,  papers  and  exhibits,  produced  upon  motions,  complaints, 
or  other  applications,  and  to  take  minutes  of  all  rules  and  orders  pro- 
nounced thereon ;  to  take  all  recognizances  in  court ;  to  enter  discontinu- 
ances, commitments  of  prisoners,  and  satisfactions  acknowledged  upon 
record ;  to  amend  records,  by  order  of  the  court ;  to  administer  the  oaths 
appointed  to  be  taken  by  prisoners,  by  the  acts  of  parliament  for  the  relief 
of  debtors  with  respect  to  the  imprisonment  of  their  persons,  and  to  pre^ 
pare  assignments  of  such  prisoners'  goods  and  effects,  to  be  signed  by 
them,  as  directed  by  the  said  acts,  and  to  draw  up  rules  for  their  discharge. 
Upon  trials  at  bar,  it  is  their  duty  to  copy  the  issues  for  the  judges,  and 
to  deliver  four  copies  thereof,  to  call  the  jury  out  of  and  in  court,  to  read 
the  record,  to  call  the  defendant,  to  read  all  written  evidence,  to  call  the 
jury  before  a  verdict  is  given,  and  to  record  the  verdict ;  to  take  minutes 
of  special  verdicts,  and  to  draw  up  the  same ;  to  make  two  copies  for  the 
])laiutift' and  defendant,  and  four  copies  for  the  judges;  to  take  an  account 
of  all  fines  and  recoveries,  passed  and  suffered  at  bar;  and  in  term  time, 
after  the  rising  of  the  court,  to  attend  at  their  respective  offices, 
there  to  draw  up  such  rules  and  *orders  as  have  been  pronounced  [  *4'J  ] 
in  court,  or  in  the  treasury,  and  enter  the  same  in  books  kept  for 
that  purpose,((T)  and  make  copies  of  such  rules  or  orders,  if  applied  for ; 
as  also  to  enter  all  rules  to  declare,  plead,  reply,  rejoin,  surrejoin,  rebut, 
surrebut,  and  join  in  demurrer,  in  paper,  and  ufterwards  to  enter  the  same 
in  books ;  to  give  rules  for  attorneys,  and  other  officers  of  the  court,  to 
appear  to  bills  filed  against  them;  to  file  and  copy  all  affidavits,  papers 

(a)  Formerly,  it  appears,  they  were  entered  upou  remembrance  rolls.  R.  M.  1G54,  §  l.'j, 
C.  \^. 


49  OF  THE  OFFICEKS  OF  THE  COURTS: 

and  exhibits,  pi'oduced  on  motions,  taxation  of  costs,  or  otherwise,  and  all 
suo^fTcstions  and  proceedings  in  spiritual  courts,  in  causes  where  j^^'ohibi- 
tions  are  applied  for ;  to  examine  persons  in  contempt  upon  interrogato- 
ries, and  to  file  and  copy  such  interrogatories,  and  the  depositions  taken 
thereon.  Their  attendance  is  also  necessary  in  vacation  time,  by  them- 
selves, clerks  or  assistants.  Upon  all  complaints  made  by  prisoners  in  the 
Fleet  against  the  warden,  it  is  the  duty  of  the  secondaries  to  attend  the 
judges,  at  such  times  and  places  as  they  may  appoint  to  hear  and  deter- 
mine the  said  complaints,  and  to  file  and  read  all  affidavits  and  exhibits 
produced  on  such  attendance,  and  to  draw  up  all  orders  made  thereupon, 
as  well  as  all  orders  made  by  the  court,  for  the  regulation  of  the  Fleet 
prison.  The  secondary  to  the  chief  prothonotary  administers  in  court  the 
oaths  of  allegiance,  supremacy,  and  abjuration ;  and,  if  required,  makes 
out  and  signs  certificates  of  persons  having  taken  the  same :  he  als6 
administers  the  oath  in  court,  to  every  person  who  is  admitted  an  attor- 
ney. The  secondary  to  the  second  prothonotary  enters  in  a.  book  kept  for 
that  purpose,  the  particulars  of  all  fines  acknowledged  at  the  bar  of  the 
court. 

Ihe  filacers  were  formerly  appointed,  for  the  diiferent  counties,  by  the 
chief  justice,  for  their  lives  ;  and  their  several  offices  were  required  to  be 
executed  in  one  certain  place.  (5)  But  now,  by  the  statute  6  Geo.  IV.  c. 
83,  §  15,  reciting  that  the  offices  of  filacers  of  all  the  counties  in  Eng- 
land would  be  executed  better,  and  at  less  expense,  by  one  person :  and 
as  such  offices  were  then  holden  by  many  different  persons,  and  the  whole 
of  such  offices  were  not  likely  soon  to  become  vacant,  that  they  might, 
when  the  then  present  interests  in  them  should  expire,  be  all  given  to 
some  one  fit  and  proper  person  ;  it  was  enacted  "  that  when  the  office  of 
filacer  of  any  county  or  counties  shall  become  vacant,  the  person  to  be 
appointed  to  discharge  the  duties  of  such  office,  shall  only  receive  an 
appointment  during  the  pleasure  of  the  lord  chief  justice ;  and  when  all 
the  present  interests  shall  have  vacated  those  offices  by  death  or  otherwise, 
the  lord  chief  justice  of  the  court  of  Common  Pleas  shall  revoke  the 
appointments  made  during  pleasure,  and  appoint  some  one  fit  and  proper 
person  to  hold  the  united  office  of  filacer  of  all  the  counties  of  England, 
during  his  good  behaviour  in  the  said  office." 

The  duties  of  the  filacers  are ;  to  procure  original  writs  to  be  duly 
sued  forth  and  filed  ;(c)  to  take  affidavits  of  debt,  in  order  to  hold  to  bail 
r  *rn  n  ^^^  ^0  *file  such  affidavits  when  the  process  is  issued,  and  to 
L  -I  make  office  copies  of  them,  when  required  ;  to  make  out  writs  of 

capias,  alias  and  i^luries,  and  all  other  incident  process,  before  appearance 
of  the  defendant,  in  all  actions  wherein  process  of  outlawry  lies,  until  the 
exigent  is  awarded ;  («)  and  all  writs  of  supersedeas,  upon  any  writs  of 
capias  awarded  out  of  their  own  offices  and  writs  of  rescous  upon  the  sher- 
iff's return  ;(6)  to  take  and  file  affidavits  of  service  of  common  process; 
and  file  bills  against  persons  entitled  to  privilege  of  parliament,  and  make 
out  the  subsequent  process  thereon,  before  appearance,  to  enter  appear- 
ances upon  all  writs  issuing  out  of  their  own  offices, (c)  and  give  rules  for 
the  sheriff  to  bring  in  the  body  •,{d)  to  attend  the  court,  or  a  judge,  on  taking 

(b)  R.  H.  2.'?  Geo.  III.  C  P.  (c)  R.  T.  1649,  C.  P. 

(a)  II.  M.  15  &  16  Eliz.  R.M.  14  Jac.  I.  reg.  1,  C.  P.  And  for  the  fees  anciently  payable  to 
the  Jilacers,  for  common  process,  see  R.  T.  35  Hen.  VI.  §  8,  C.  P. 

{b)  Same  rules.  (c)  R.  M.  14  Jac.  I.  re(f.  1,2.    R.  E.  24,  Car.  II.  reg.  2,  C.  P. 

{d)  Id.  R.  T.  2  W.  &  M.  reg.  I,  C.  P. 


OF  THE  OFFICERS  OF  THE  COURTS.  50 

special  bail  by  oru/inal  :{e)  to  enter  recognizances  of  bail,  and  make  out 
the  first  writ  of  scire  facias  thereon  ;(/)  to  enter  and  file  writs  of  re.  fa.  lo, 
&c.  issuing  out  of  the  court  of  Chancery,  and  returnable  in  the  court  of 
Common  Pleas,  for  the  removal  of  plaints  from  inferior  courts,  and  to 
issue  writs  of  jjone  and  distrin[/as,  to  compel  appearances  in  such  pro- 
ceedings ;  and  to  make  out  all  writs  of  retorno  halcndo  upon  nonsuit,  writs 
of  second  deliverance,  and  writs  of  capias  in  ivitliernam^  alias,  and  j^^wms, 
before  appearance,(^)  &c. 

The  duty  of  the  clerk  of  the  exigent  is  to  make  out  writs  of  exi- 
gent  and  proclamations,  in  order  to  proceed  to  outlawry ;  and  of  the 
clerk  of  the  supersedeases,  to  make  out  Avrits  of  superdeas  to  exigents  quia 
improvide,  kc.,{h)  in  order  to  prevent  persons  from  being  outlawed  or 
waived,  against  whom  exigents  have  issued.  The  office  of  clerk  of  the 
outlaivries  is  incident  to  the  office  of  his  majesty's  attorney-general ;  and 
usually  executed  by  his  clerk.  His  duty  is  to  make  out  all  writs  of  capias 
utlagatum,  and  sequestrations  of  ecclesiastical  benefices,  in  personal  ac- 
tions, after  the  return  of  the  exigent.  Inquisitions  taken  on  special  writs  of 
capias  utlagatum,  are  transmitted  into  this  office  ;  and  are  here  exemplified, 
upon  rolls  signed  by  the  clerk  of  the  outlawries,  and  then  carried  into  the 
office  of  the  king's  remembrancer  of  the  court  of  Exchequcrer,  and  there 
filed  of  record;  and  the  inquisitions  themselves,  and  writs  of  exigent,  are 
filed  with  the  custos  hrevium.  The  clerk  of  the  reversal  of  outlawries  is 
appointed  by  the  prothonotaries,  during  pleasure :  His  duty  is  to  draw  up 
and  enter  the  reversals  of  outlawries  on  remembrances,  and  deliver  cer- 
tificates thereof  to  the  clerk  of  the  outlawries ;  to  make  out  bail-pieces  on 
such  reversals,  and  writs  oi  supersedeas  Avhen  necessary.  The  clerk  of  the 
juries  is  appointed  by  the  custus  hrevium,  for  life:  His  duty  is  to  make 
out  writs  of  habeas  corpora  juratormn,  for  the  trials  of  issues  in  London 
and  3Iiddlesex,  and  for  the  assizes  in  the  country. 

*The  duties  of  the  clerk  of  the  luarrants,  inrolments,  and  es- 
treats, are,  to  file  warrants  of  attorney  upon  judgments,  issues,  [  *51  ] 
outlawries,  and  writs  of  covenant  for  levying  fines ;  and  also  the 
warrants  of  attorney  of  sheriff's  for  the  different  counties  in  England ; 
to  stamp  all  judgment-papers,(rtrt)  records  of  nisii)rius,{hh)  w^-its  oi pluries 
cajnas  on  outlawries,(i)and  writs  o^  covenant ;  to  enroll  deeds,  recoveries, 
and  foreign  estreats ;  and  to  file  affidavits  of  the  execution  of  articles  of 
clerkship,  and  enter  attorneys'  certificates,  &c.  This  officer  may  refuse 
to  file  a  warrant  of  attorney,  or  pass  a  fine,  till  the  attorney  cniployed  by 
the  parties,  has  paid  his  termage  fees.(6') 

The  clerk  of  the  essoins  is  appointed  by  the  chief  justice,  for  life  :  his 
duty  is  to  enter  essoins  for  the  tenants  in  real  actions,  (for  it  is  now  deter- 
mined, that  no  ession  lies  in  p)ersonal  actions ;)  and  in  case  the  tenant  be 
not  essioned,  by  the  time  limited  by  the  rules  of  the  court  in  real  actions, 
the  demandant  may  enter  a  7ie  recipiatur.  This  officer  is  required,  by  the 
statute  4  &  ')  W.  k  M.  c.  20.  §  2.  to  make  an  alphabetical  doget,  by  the  de- 
fendants' names,  of  all  judgments  for  debt  by  confession,  kc,  in  the  court 
of  Common  Pleas  ;(c^)  and  rolls  belonging  to  the  several  offices  of  the  said 

(c)  R.  T.  1  W.  &  M.  reg.  2,  G.  P.  (  f)  R.  M.  14  Jac.  I.  rcg.  1  C.  P.  Barnes,  9Y. 

{g)  R.M.I  5  &  leEliz.  R.M.  14  Jac.  1.  reg.  1,C.P. 

\h)  R.  E.  24  Car.  W.  reg.  1,C.  P. 

\aa)  R.  M.  5  Geo.  II.  C.  P.  (hh)  R.  H.  2  &  3  Jac.  II.  C.  P. 

\b)  R.  II.  2  &  3  Jac.  II.  C.  P.  (c)  1  Bing.  277.  8  Moore,  229,  S.  C. 

{(1)  R.  E.  5  W.  &  M.  reg.  2,  R.  M.  2  Goo.  I.  C.  P. 


51  OF  THE  OFFICERS  OF  THE  COURTS. 

court  are  marked,  numbered  and  delivered  out  by  the  clerk  of  the  essions 
to  the  prothonotaries  :  and  when  the  proper  entries  are  inade  thereon,  they 
are  returned  into  his  office,  whence  they  are  carried,  by  the  clerk  of  the 
judgments,  to  the  treasury  at  Westminster. 

The  clerk  of  the  dockets  is  appointed  by  the  prothonotaries,  during  plea- 
sure. The  duty  of  this  officer  is  to  draw  up,  exemplify,  and  enter  on  the 
roll,  the  admission  of  the  several  officers  of  the  court ;  to  prepare  bail- 
pieces,  entered  into  any  attachment  of  privilege,  or  other  bailable  process, 
issuing  out  of  the  prothonotaries'  office,  and  attend  the  court  or  a  judge 
therewith,  when  entered  into,  and  when  the  bail  are  justified,  or  fresh  bail 
added,  or  the  defendant  surrendered ;  to  make  copies  of  all  special  juries, 
named  by  the  prothonotaries,  for  the  plaintiff  and  defendant ;  to  make 
copies  of  reports  in  court  by  the  prothonotaries,  if  desired,  and  of  all  spe- 
cial verdicts,  for  the  judges  and  attorneys  ;  to  make  copies  of  all  rules  of 
court,  from  the  remembrances  of  terms  past ;  to  make  certificates  of  de- 
clarations not  being  filed  against  prisoners,  according  to  the  rules  of  the 
court,  in  order  to  their  being  discharged ;  to  make  out  certificates  of  writs 
of  7'ecordari  and  false  judgment  not  being  filed  according  to  the  course  of 
court,  to  enable  the  parties,  to  proceed  in  inferior  courts ;  to  copy,  if  de- 
sired by  the  parties,  all  bills  of  cost,  and  other  papers  produced  before  the 
prothonotaries  relating  to  such  bills,  when  taxed ;  to  attend  the  office  of 
the  prothonotaries  daily  during  office  hours,  and  to  do  the  common  busi- 
ness belonging  to  the  office. 

The  clerk  of  the  judgynents  is  also  appointed  by  the  prothonotaries, 
during  pleasure.  His  duty  is  to  draw  up  every  final  judgment,  after  in- 
quisition taken,  verdict  obtained,  or  nonsuit  had  at  nisi  prius, 
[  *52  ]  and  upon  every  *demurrer,  issue  of  nul  tiel  record,  and  rule  of 
court  ;(a)  and  to  draw  up  and  enter  all  the  continuances  neces- 
sary to  the  said  judgments :  and  he  is  directed,  by  the  statute  4  &  5  W. 
&  M.  c.  20,  §  2,  to  bring  in  all  the  above-mentioned  judgments,  to  be 
docketed ;  after  which  he  carries  them  to  the  treasury  at  Westminster. 
He  draws  up  the  award  of  writs  of  elegit  and  p)C-^^tition,  and  enters  the 
same,  with  the  returns  thereof,  upon  the  roll ;  enters  satisfaction  on  all 
judgments,  when  the  same  is  done  by  a  judge's  order,  and  not  in  open 
court ;  and  makes  out  exemplifications  of  any  of  the  above-mentioned 
judgments,  if  applied  for  within  a  year  after  the  signing  thereof. 

The  chief  justice  for  the  time  being,  is  keeper  and  clerk  of  the  treasury, 
and  also  clerk  of  the  errors,  of  the  court  of  Common  Pleas ;  and  executes 
these  offices  by  his  clerks,  who  are  appointed  by  him  during  pleasure.  The 
clerk  of  the  treasury  has  the  custody  of  the  records  of  the  court ;  the  sign- 
ing and  sealing  of  records  of  nisi  prius  ;[b)  and  the  signing  of  exemplifi- 
cations, except  of  fines  and  recoveries,  within  two  terms. (c)  The  clerk 
of  the  errors  has  the  allowance  and  receipt  of  all  writs  of  error,  upon 
judgments  in  this  court;  gives  certificates  thereof;  makes  out  writs  of 
supersedeas ;  enters  bail  taken  thereon  ;  makes  out  writs  of  scire  facias 
against  the  bail ;  gives  rules  for  bail,  and  for  the  plaintiff  in  causes  to  certify 
the  record  ;  makes  transcripts  of  the  records  and  judgments,  and  transmits 
the  same  into  the  court  of  King's  Bench,  &c. ;  signs  no7ip)rosses  for  not 
certifying  the  record ;    and  allows  and  returns  all  writs   of   certiorari 

{a)  R.  T.  29,  Car.  II.  reg.  5,  R.  T .  1 3  Geo.  II.  rcg.  2  C.  P. 

[h)  R.  T.  29  Car.  II.,  rcg.  4.     R.  H.  2  &  3  Jac.  II.,  C.  P.     And  for  the  fees  anciently  due 
to  the  clerk  of  the  treasury,  see  R.  T.  35  Hen.  VI.,  §  7,  C.  P. 
(c)  R.  M.  1654,  I  6,  C.  P. 


OF  TEE  OFFICERS  OF  THE  COURTS.  52 

directed  to  the  lord  cliief  justice,  for  certifying  records  from  tliis  court 
into  any  other. 

Besides  the  officers  that  have  been  mentioned,  there  are  others  who  de- 
rive their  authority  more  immediately  from  the  crown,  namely,  the  mar- 
slial  of  the  King's  Bench  prison, ((?)  and  chief  usher  and  crier  of  the  court, 
in  the  King's  Bench :  and  the  ciintos  hrevmm,  warden  of  the  Fleet  prison, 
and  chief  proclamaior  to  the  court,  in  the  Common  Pleas;  and  the  sealer 
of  writs,  for  both  courts.  The  office  of  marslial  of  the  King's  Bench  pri- 
son was  granted  by  king  James  the  First,  in  the  14th  year  of  his  reign,  to 
Sir  William  iSmith,  knight,  in  fee ;  and  the  appointment  to  that  office,  as 
well  as  of  the  inferior  officers,  continued  in  the  proprietors  of  the 
♦inheritance  of  the  prison,  till  the  statute  27  Geo.  II.  c.  17,  by  [  *53  ] 
which  the  office  was  revested  in  the  crown ;  and  by  that  statute, 
the  marshal  has  the  appointment  of  all  inferior  officers  belonging  to  his 
office,  such  as  the  deputy  marshal,  chaplain,  clerk  of  the  p)apers  of  the 
King's  Bench  prison,  and  clerk  of  the  day  rules :  (which  latter  officers 
must  be  resident  within  the  prison,  or  its  rules, )(rt)  three  turnkeys  and  four 
tipstaffs,  (one  for  each  of  the  judges,)  &c.  And,  by  a  late  rule,  {bb)  the 
marshal  must  also  reside  within  the  King's  Bench  prison,  or  the  rulea 
thereof,  according  to  the  terms  of  the  above  statute,  §  5,  and  of  his  patent. 
The  chief  usher  and  crier  of  the  court  of  King's  Bench  holds  his  place  for 
two  lives,  by  letters  patent  under  the  great  seal ;  and  executes  the  same  by 
two  deputy  ushers,  and  two  deputy  criers,  who,  according  to  a  modern 
determination, (d?c)  are  considered  as  distinct  and  independent  officers. 

The  office  of  custos  brevium  of  the  court  of  Common  Pleas  was  granted 
by  king  Charles  the  Second,  by  letters  patent  dated  the  14th  of  December^ 
in  the  20th  year  of  his  reign,  with  all  profits,  rights  and  privileges  thereunto 
belonging,  (after  the  determination  of  grants  for  lives,  then  subsisting,)  to 
certain  persons  therein  named,  and  their  heirs  and  assigns,  in  trust  for  the 
then  earl  and  countess  of  Litchfield,  and  for  the  issue  of  the  countess  in 
tail.(cZ)  The  persons  at  present  entitled  to  the  office,  acquired  it  by  inheri- 
tance :  and  the  general  business  of  the  office  is  to  record  and  file  all  original 
and  judicial  writs,  and  inquisitions  taken  by  virtue  of  any  such  writs;  all 
posteas  after  verdicts,  and  fines,  with  the  concords  signed  by  the  parties 
acknowledging  the  same,  and  the  writs  of  dedimus  p)otestatum  issued  for 
taking  the  acknowledgment  of  such  fines,  with  the  transcripts  thereof;  which 
fines  are  entered  in  a  book  of  the  same  term  the  respective  writs  of  cove- 
nant are  returnable,  and  the  proclamation  of  such  fines  arc  indorsed  upon 
the  captions,  according  to  the  statute;  to  record  and  file  all  writs  of  entry 
and  summons,  writs  of  dedimus  potestatum  for  taking  warrants  of  attor- 
ney thereupon,  and  writs  of  seisin  to  support  recoveries  sufi'ered  in  the  said 

(</)  2  Salk.  439.  3  Salk.  320,  S.  C.  And  for  the  rules  and  orders  made  for  the  better 
government  of  the  King's  Bench  prison,  see  R.  M.  3  Geo.  II.  R.  T.  19  Geo.  III.  R.  T.  21 
Geo.  III.  R.  II.  57  Geo.  III.  R.  M.  58  Geo.  III.  R.  T.  58  Geo.  III.  1  Barn.  &  Aid.  728. 
2  Chit.  Rep.  373.  R.  H.  59  Geo.  III.  2  Barn.  &  Aid.  403.  2  Chil.  Rep.  374.  2  Barn.  4: 
Cres.  344.  3  Dowl.  &  Ryl.  599,  S.  C.  R.  M.  7  Geo.  IV.  6  Barn.  &  Ores.  123.  9  Dowl.  k 
Ryl.  180.  R.  II.  7  &  8  Geo.  IV.  6  Barn.  &  Cres.  2G7,  K.  B.  And,  for  the  fees  payable  bv 
the  prisoners  therein  see  R.  Dec.  17,  1730.  4  Geo.  II.  R.  M.  57  tJcq.  III.  R.  II/  2  &  3 
Geo.  IV.  K.  B.  The  above  rules,  subsequent  to  those  of  3  &  4  Geo.  II.  are  to  be  found  in 
the  collection  of  rules  and  orders,  on  the  pica  side  of  the  Court  of  King's  Bench,  with  which 
Mr.  ^horl,  the  clerk  of  the  rules,  has  obliged  the  profession. 

(a)  4  Durnf.  &  East,  71G.     5  Durnf.  &  East,  511.  {lb)  R.  M.  2  Geo.  IV.  K.  B. 

[ce)  Peake's  Cas.  Ni.  Pri.  3  Ed.  243. 

(d)  Stat.  6  Gco.*IV.  c.  89. 

Vol.  I.— 5 


53  OP  THE  OFFICERS  OF  THE  COURTS. 

court  •  to  make  copies  and  exemplifications  of  the  said  writs  and  records, 
when  required  ;  and  to  return  writs  of  certiorari,  directed  to  the  custos 
brevium,  for  removing  any  writs  or  other  records  into  the  court  of  King's 
Bench.(e) 

The  warden  of  the  Fleet  prison, (/)  holds  his  office,  by  letters  patent  from 
the  crown,  during  pleasure ;  and  has  the  appointment  of  the  clerk  of  the 
papers  and  rules  of  the  Fleet  prison,  and  keeper  of  Westminster  hall ;  and 
also  of  four  tipstaffs,  two  for  the  Common  Pleas,  one  for  the  court  of  Fx- 
chequer  and  Rolls,  and  another  for  the  court  of  Gliaiicery  ;  the 
[  *54  ]  Fleet  being  *the  prison  for  all  these  courts.  The  two  tipstaffs  for 
the  Common  Pleas  attend  the  judges  while  sitting  in  court,  and  in 
the  afternoon  at  their  chambers  ;  and  out  of  term,  they  attend  there  morning 
and  afternoon  :  One  of  them  also  attends  the  lord  chief  justice,  at  the  sit- 
tings of  7iisi  prius  for  London  and  3Iiddlesex.  The  office  of  chief  pro- 
clamator,  in  the  court  of  Common  Pleas,  is  an  hereditary  office,  claimed  by 
descent  in  fee.  This  officer  has  no  personal  duty  attached  to  his  office;  but 
he  appoints  four  criers,  one  of  whom  is  also  court-keeper,  and  another  por- 
ter of  the  court :  They  hold  their  places  for  life ;  and  their  duty  is  to 
attend  the  court,  and  make  proclamations,  &c. 

The  office  of  receiver  general  and  comptroller  of  the  seal  of  the  courts  of 
King's  Bench  and  Common  Pleas,  (commonly  called  the  seal  office,)  was 
granted  by  King  Charles  the  second,  by  letters  patent  dated  the  30th  of 
April,  in  the  25th  year  of  his  reign,  (after  certain  estates  tail,  since  deter- 
mined,) to  Henry  earl  of  Fusion,  afterwards  duke  of  G-rafton,  in  tail 
male. (a)  This  office  is  now  vested  in  the  duke  of  G-rafton,  who  exercises 
the  same  by  deputy  ;  and  has  the  sealing  of  all  process,  except  bills  of  3Iid- 
dlesex,  issuing  out  of  the  King's  Bench  and  Common  Pleas,  and  the  exem- 
plification of  recoveries  and  judgments.  But,  by  a  late  act  of  parliament,(5) 
the  commissioners  of  his  majesty's  treasury  are  authorized  "  to  treat,  con- 
tract, and  agree  with  the  several  persons  beneficially  entitled  to  the  fees, 
receipts,  and  profits  of  the  said  office,  and  also  of  the  office  of  custos  brevium 
of  the  court  of  Common  Pleas,  for  the  purchase  of  all  the  rights,  profits, 
privileges  and  advantages  whatever  belonging  thereto,  for  such  annuity  or 
annuities,  to  be  charged  upon  the  consolidated  fund  of  the  united  kingdom, 
as  the  said  commissioners,  or  any  three  or  more  of  them,  shall  think  fit ;  and 
from  and  after  the  confirmation  of  the  said  agreement  by  parliament,  the 
rights  and  interests  of  all  persons  whatsoever,  claiming  or  entitled  to  claim 
under  the  said  letters  patent,  shall  cease  and  determine  :  And  the  said  an- 
nuity or  annuities  so  to  be  granted,  shall  go  and  be  paid  from  time  to  time 
to  such  person  or  persons,  as  would  have  been  entitled  to  the  fees,  profits, 
and  advantages  of  the  said  offices  respectively,  under  the  said  letters  patent, 
in  case  that  act  had  not  been  passed." 

The  seal  office  is  required  to  be  open  from  eleven  in  the  morning  till  two 
in  the  afternoon,  and  from  five  to  seven  in  the  evening,  during  term,  and  for 
ten  days  after  every  issuable  term,  and  one  week  after  every  other  term ; 
and  from  eleven  in  the  morning  till  three  in  the  afternoon,  at  all  other 

(«)  For  the  fees  anciently  payable  to  the  custos  brevium,  see  R.  T.  35  Hen.  VI.  ^  6. 

{/)  For  the  rules  and  orders  made  for  the  better  government  of  the  Fleet  prison,  and  the 
fees  payable  by  the  prisoners,  see  R.  E.  and  T.  13  Geo.  I.  Jan.  19.  3  Geo.  II.  H.  3  Geo. 
II.  E.  8.  Geo.  IV.  4  Bing.  247,  C.  P.  and  see  1  H.  Blac.  105.  8  Moore,  157.  1  Bing.  255, 
S.  C. 

(a)  Stat.  6  Geo.  IV.  c.  89.  (b)  Id,         « 


OF  THE  OFFICERS  OF  THE  COURTS.  54 

times. (c)  It  was  formerly  usual  to  seal  hJanlc  writs;  hut  an  inconvenience 
having  attended  this  practice,  it  was  ordered  that  for  the  future,  no  printed 
blanks  or  other  writs  should  be  sealed,  before  the  same  were  regularly  made 
out  and  filled  up  :((i)  And  by  several  old  rules  of  court,(c')  no 
*signablc  writs  are  to  sealed,  till  they  have  been  duly  signed  by  [  *55  ] 
the  proper  oflBcer. 

The  sealer  of  writs  however,  and  other  law  officers,  are  not  bound  to 
attend,  or  keep  open  their  offices,  on  licensed  hohjdaijs.  It  Avill  therefore 
be  proper  to  consider  what  these  holydays  are,  and  when  they  are  com- 
manded or  allowed  to  be  kept,  in  term  time  or  vacation,  with  the  remedies 
for  not  opening  the  offices  on  other  days,  or  refusing  to  do  business  in  office 
hours,  without  the  payment  of  extra  fees.  Holydays,  it  appears,  are  of  two 
kinds;  first,  such  as  were  originally  derived  from  thccJnircJt ;  and  secondly, 
state  holydays;  the  former  are  of  ecclesiastical  institution  ;  but  when,  upon 
the  reformation,  the  liturgy  was  settled  and  established,  such  days  were 
enjoined  to  be  observed ;  as  plainly  appears  by  the  statutes  2  &  3  Edw.  VI. 
c.  1  &  19,  and  5  &  6  Edw.  VI.  c.  3:  And  though  these  acts  were  abrogated 
by  Queen  Mar-y,  yet  they  were  revived  and  continued  in  the  first  years  of 
Queen  Elizabeth  and  King  James.{a) 

The  reasons  for  these  holydays,  being  of  a  religious  nature,  are  fully  stated 
in  the  preamble  to  the  statute  5  &  6  Edw.  VI.  c.  3,  by  which  it  is  enacted 
that  "  all  the  days  hereafter  mentioned  shall  be  kept  and  commanded  to  be 
kept  holydays,  and  none  other,  that  is  to  say,  all  Sundays  in  the  year  ;  the 
days  of  the  feast  of  the  Circumcision  of  our  Lord,  (being  the  1st  of  Janu- 
ary) ;  of  the  JEpipliany,  (6th  of  January')  ;  of  the  Purification  of  the 
blessed  virgin  Mary,  (2d  of  February)',  of  St.  Matthias  the  apostle,  (21th 
0^  February) ;  of  the  Annunciation  of  the  blessed  virgin,  (25th  of  3Iarch) ; 
of  St.  3Iark  the  evangelist,  (25th  of  April) ;  of  St.  Fhilip  and  Jacob  the 
apostles,  (1st  of  3Iay) ;  of  the  Ascension  of  our  Lord,  (which  is  a  movable 
feast,  happening  40  days  after  Easter,  and  ten  days  before  ^VJlitsuntide) ;  of 
the  Naticity  of  St.  Jolin  the  baptist,  24th  of  June) ;  of  St.  Peter  the  Apos- 
tle, (29th  of  June) ;  of  St.  James  the  Apostle,  (25th  of  July) ;  of  St  Bartho- 
lomew the  apostle,  (24th  of  August);  of  St.  Matthezo  the  apostle,  (21st  of 
Sejytember) ;  of  St.  Michael  the  archangel,  (29th  of  September);  of  St. 
Luke  the  evangelist,  (18th  of  October) ;  of  St.  Simon  and  Jude  the  apos- 
tles, (28th  of  October) ;  of  All  Saints,  (1st  of  November) ;  of  St.  Andrew 
the  apostle,  (30th  of  November);  of  St.  Thomas  the  apostle,  (21st  of  De- 
cember) ;  of  the  Nativity  of  our  Lord,  (25th  of  December) ;  and  the  three 
following  days,  (being  the  feast  days  of  St.  Stephen  the  martyr,  St.  Jolni  the 
evangelist,  and  the  Holy  Innocents) :  and  Monday  and  Tuesday  in  Easter 
andir/fiVsMn  wieeks:"  to  which  may  be  added  Good  Friday,  though  it  is 
not  mentioned  in  the  statute.  Hence  it  appears,  there  are  tiventy  four 
licensed  holydays  in  a  year,  besides  those  in  Easter  ^niiWliitsun  weeks  ; 
of  which,  it  will  be  seen,  there  are  five  in  the  month  of  December,  and  in 
every  other  month  two,  except  in  March,  April,  July  and  August,  in  each 

(c)  R.  T.  54  Geo.  III.  K.  B.  3  Maule  &  Sel.  163.  2  Chit.  Rep.  379.  5  Taunt.  702.  1 
Marsh.  245,  C.  P.  and  see  a  former  rule  of  M.  34  Geo.  III.  K.  B. 

{d)  N.  3  Apr.  1747,  K.  B.  and  see  the  statute  G  Geo.  I.  c.  21,  ^  53.  2  Wils.  47.  1  Chit. 
Rep.  320.(rt) 

(e)  R.  T.  1656,  rcg.  1,  R.  E.  1059,  R.  E.  15  Car.  II.  reg.  1,  K.  B.  and  see  R.  M.  13  Car.  11. 
R.  II.  24  &  25  Car.  II.  R.  E.  32  Car.  II.  R.  T.  4  W.  &  M.  rcg.  3,  K.  B.  II.  T.  1049,  R.  M.  1654, 
\  6,  R.  T.  9  W.  III.  C.  P. 

(rt)  Nelson's  Festivals,  1,  2. 


55  OF  THE  OFFICERS  OF  THE  COURTS. 

of  which  there  is  only  one  ;  which  was  probably  on  account  of  these  being 

the  months  of  seed  time  and  harvest. 
[  *56  ]        *The  statute  being  express,  that  "  none  other  days  shall  be  kept 

or  commanded  to  be  kept  holyday,  or  to  abstain  from  lawful 
bodily  labour,"  it  has  been  determined,  that  the  feast  day  of  St.  Barnabas, 
(11th  oi  June,)  not  being  mentioned  in  the  statute,  is  not  a  legal  holyday  at 
the  seal  office  ;(a)  and  though  it  appeared  by  affidavit,  in  the  case  of  Fig- 
gins  V.  WiUie,{b)  that  this  feast  was  kept  at  the  excise,  customs,  &c.  and 
that  for  35  years  together,  and  before  the  then  officers  came  into  the  office, 
it  had  been  kept  at  the  seal  office  in  this  manner,  that  is,  the  outer  door  had 
been  kept  shut  the  whole  day,  if  St.  Barnabas  fell  on  a  Monday,  Wednes- 
day or  Friday,  but  on  Tuesdays,  Thursdays,  and  Saturdays,  it  was  shut 
in  the  mornings  only,  those  being  post  nights,  yet  from  the  opinion  of  Mr. 
Justice  Blackstonc  in  that  case,(6')  it  seems  that  this  practice  crept  in  when 
St.  Barnabas  became  a  state  holyday,  by  coinciding  with  the  king's  inau- 
guration or  accession,  which  it  did  for  the  first  25  years  of  the  reign  of 
G-eorge  the  Second,  till  they  were  separated  by  the  new  style  act,  in  1752. 
It  is  also  observable,  that  there  is  another  feast  day  observed  by  the  church, 
which  is  not  mentioned  in  the  statute  5  &  6  Edw.  VI.  namely,  the  conver- 
sion of  St.  Paul,  which  happens  on  the  25th  of  January :  and  the  reason 
why  this  feast  day,  as  well  as  that  of  St.  Barnabas,  are  not  mentioned  in 
the  statute,  probably  w^as,  that  one  of  these  feasts  always  happens  in  Hilary 
term,  and  the  other  frequently  in  Trinity  term ;  and  as  there  was  already 
one  holyday  at  least  in  each  of  these  terms,  it  might  have  been  thought  that 
the  business  of  the  court  would  have  been  interrupted,  if  more  had  been 
allowed,  and  directed  to  be  kept. 

State  holydays  are  either  appointed  by  act  of  parliament,  or  founded  on 
ancient  usage.  The  former  are  the  anniversary  of  the  Crunpowder  Trea- 
son, [November  5,)  the  martyrdom  of  Charles  the  First,  [January  30,) 
and  the  restoration  of  Charles  the  Second,  [May  29,)  which  are  made  state 
holydays  by  the  statutes  3  Jac.  I.  c.  1,  12  Car.  II.  c.  14,  (confirmed  by  13 
Gar.  II.  Stat.  1,  c.  11,)  and  12  Gar.  II.  c.  30.  The  latter  are  the  birth  day, 
accession,  'proclamation,  and  coronation  of  the  reigning  monarch  ;  and  the 
bii'th  days  of  his  consort,  and  the  prince  of  Wales.  And  it  has  been  usual 
to  keep  half  holidays  on  some  other  days ;  as  on  Shrove  Tuesday,  Ash 
Wednesday,  the  feast  of  All  Souls,  [November  2,)  and  the  birth  day  and 
landing  of  William  the  Third,  [NoveiJiber  4) ;  the  offices  being  open  only 
half  the  usual  hours  of  attendance  on  those  days.  The  5th  of  November  is 
a  holyday  at  the  office  of  signer  of  writs,  in  the  King's  Bench,  during  the 
time  of  morning  service.(t?)  But  it  has  been  determined,  by  the  court  of 
Common  Pleas,  that  Lord  Mayor  s  day  is  not  such  an  holyday,  as  entitles 
the  sealer  of  writs  to  an  extraordinary  fee  for  sealing  a  writ  on  that  day.(e) 
In  the  Exchequer,  the  anniversary  of  the  king's  accession  has  been  holden 
not  to  be  an  holyday :(/)     And,  on  the  anniversary  of  the  martyrdom  of 

Charles  the  First,  the  junior  baron  of  the  court  sits  in  the  morn- 
[  *57  ]    ing,  to  take  motions  *of  course. (a)    In  that  court  also, the  service 

of  a  rule  to  bring  in  the  body,  on  the  day  of  the  2^U7'iJication,  is 
deemed  good  service.(J) 

The  only  licensed  holidays  in  term  time,  are  said  to  be  the  Purification 

(a)  2  Blac.  Rep.  1186, 1314.  [b)  Id.  1186.  (c)  Id.  1188. 

[d)  6  Maule  &  Sel.  136.  (e)  5  Taunt.  180.  (/)  9  Price,  13. 

(a)  9  Price,  15.  (6)  13  Price,  208.     M'CIel.  66,  7,  S.  C. 


OF  THE  OFFICERS  OF  TEE  COURTS.  57 

in  ITilar?/ term,  Ascemion  day  in  Easter  term,  and  St.  Jb/m  the  baptist((?), 
(being  Midsummer  day,)  if  it  happen  in  Trinity  term,  unless  it  be  on  Fri- 
day next  after  Trinity  Sunday,  in  which  case  it  is  dies  juridicus,  by  the 
statute  32  Een.  VIII.  c.  11.[dd)  These  are  considered  as  dies  non  juridici ; 
but  on  all  other  days,  the  courts  regularly  sit  for  the  dispatch  of  business  in 
term  time,  though  it  has  been  usual  on  the  30th  of  January,  (being  the 
anniversary  of  the  martyrdom  of  Charles  the  First,)  for  the  courts  to  rise 
early,  or  as  soon  as  the  common  business  is  over.  And,  as  the  courts  sit 
themselves,  they  expect  that  the  offices  should  be  open  on  all  other  days  in 
terra  time  :  For,  as  was  observed  by  Mi\  Justice  Blackstone,  in  the  case  of 
Sparroiv  v.  Cooperiee),  the  officers  are  supposed  to  be  every  day  in  court, 
sitting  at  the  feet  of  the  chief  justice,  and  (in  the  case  of  the  sealer  of  writs,) 
affixing  the  seal  of  the  court  to  all  judicial  writs,  which  are  witnessed  at 
Westminster,  in  the  name  of  the  lord  chief  justice  :  The  sufferin"-  him  to 
do  this  in  a  private  chamber  is  a  mere  indulgence,  convenient  to  tlio  court, 
the  suitor,  and  the  officer,  and  therefore  connived  at ;  but  the  supposition  of 
law  is  otherwise.  Of  course,  upon  all  days  when  the  courts  sit  at  West- 
miyister,  he  ought  to  be  ready  to  execute  his  duty  at  all  convenient  hours. 
On  these  or  similar  grounds  it  has  been  determined,  that  the  feast  of  St. 
Philip  and  Jacob,  which  happens  on  the  1st  of  May,  is  not  a  holyday,(^) 
nor  the  29th  of  3Iay,  being  the  restoration  of  Charles  the  sccond,{y)  when 
these  days  fall  in  Faster  terra  ;  nor  the  feast  of  St.  Peter,  being  the'29th  of 
June,  when  it  falls  in  Trinity  term  ;{h)  and  consequently,  no  officer  can 
take  an  extraordinary  fee  for  business  done  on  these  days. 

It  has  been  made  a  question,  whether  the  officers  are  entitled  to  take  extra 
fees,  for  business  done  on  legal  holydays  in  vacation :  and  upon  this  subject, 
Lord  Ellenhorough  is  reported  to  have  said,  in  the  case  of  Tweddale  v. 
Fennell,{i)  that  the  officers,  though  they  may  keep  legal  holydays,  must 
not  be  allowed  to  sell  or  make  a  traffic  of  them.  But  it  should  be  observed, 
that  in  this  case  an  extra  fee  had  been  taken  by  the  clerk  of  the  declarations, 
on  the  feast  of  St.  Peter,  which,  though  mentioned  in  the  statute  5  &  6 
Fdio.  VI.  is  not  considered  as  a  legal  holyday  in  term  time.  This  question 
however,  carae  directly  before  the  court  of  Common  Pleas,  in  the  case  of 
Martin  v.  Bold,{k)  but  was  not  decided.  In  that  case,  the  deputy  sealer  of 
writs,  being  at  his  office  on  a  legal  holyday,  (that  of  St.  Luke,  which 
falls  on  the  18th  of  October,)  a  writ  was  offered  him  to  seal, 
*which  he  refused  to  do  without  an  extra  fee;  and  the  court  with-  [  *58  ] 
out  deciding  on  his  right  to  make  such  a  demand,  held  that  at  all 
events,  his  refusal  to  seal  the  writ  was  not  an  offence,  for  which  they  would 
grant  an  attachment :  so  that  the  question  may  be  considered  as  still  un- 
settled. 

The  remedies  against  officers,  for  not  opening  their  offices,  on  days  which 
are  not  licensed  holydays,  is  by  special  action  on  the  case  for  consequential 
damages, (a)  or  by  summary  application  to  the  court  for  an  attachment  :{b) 
or,  if  they  have  taken  improper  fees,  an  action  of  assumpsit  may  be  main- 
tained for  money  had  and  received ;  or  the  court  will  order  them  to  be  ra- 
re) 2  Blac.  Rep.  1316.     7  Durnf.  &  East,  336.  [dd)  1  Chit.  Rep.  400. (a) 
\ee)  2  Blac.  Rep.  1316.                  (/)  2  Smith  R.  403.  {</)  7  Durnf.  &  East,  336. 
(h)  Tweddale  v.  Fmnell,  T.  56  Geo.  III.  K.  B. 
(t)  T.  56  Geo.  III.  K.  B.     This  case  is  not  reported  ;  but  is  referred  to  in  the  case  of 
Martin  v.  Bold,  1  Taunt.  182.     2  Marsh.  487,  S.  C. 
{k)  7  Taunt.  182.     2  Marsh.  487,  S.  C. 
(a)  2  Blac.  Rep.  1187.                                         [b)  7  Taunt.  182.     2  Marsh.  487,  S.  C. 


(« 


gg  OF  THE  OFFICERS  OP  THE  COURTS. 

funded. (c)  And,  in  the  Common  Pleas,  when  a  complaint  is  made  against 
an  officer  of  the  court,  the  judges  will  not  refer  it  to  the  prothonotaries  for 
examination,  but  will  examine  it  themselves. (t^) 

The  officers  of  the  court  of  Exchequer  of  Pleas,  are  the  clerk  of  the  pleas, 
and  his  deputy,  who  is  called  the  mastei'.  The  clerk  of  the  pleas  is  ap- 
pointed by  the  chancellor  of  the  Exchequer  for  life,  or  quamdiu  se  bene 
qesserit,  and  the  deputy  or  master,  by  the  clerk  of  the  pleas;  and  the  busi- 
ness of  the  master  is  to  take  minutes  of  what  is  done  in  court,  draw  up  rules, 
make  reports  on  matters  referred  to  him,  tax  bills  of  costs,  allow  bails,  and 
sign  process,  and  judgments.  The  clerk  of  the  pleas  is  also  clerk  of  the 
errors  in  the  Exchequer  Chamber :  and  his  duty  in  that  character  is  to  allow 
writs  of  error,  certify  transcripts,  and  attend  the  court  of  Exchequer  Cham- 
ber, and  draw  up  rules  thereon.  The  general  business  of  the  office  is  the 
prosecution  and  defence  of  actions  at  common  law,  and  the  enrolment  of 
deeds;  which  business  is  transacted  hj four  sworn  clerks  or  attorneys,  ap- 
pointed by  the  clerk  of  the  pleas  for  life,  and  sixteen  side  clerks,  or  clerks 
in  court, /o?^r  of  whom  are  appointed  by  each  of  the  attorneys. (t?)  In  this 
court,  the  office  of  sealer  of  writs,  &c.,  is  executed  by  the  under- secretary  of 
the  chancellor  of  the  Exchequer.f/) 

Sheriffs  may  also,  to  some  purposes,  be  considered  as  officers  of  the 
courts ;  and  it  is  their  duty  to  have  deputies  therein,  to  receive  and  return 
writs  and  process  :{g)  which  deputies  are  required  to  give  their  personal 
attendance  in  Westminster  hall,  daily  in  term  time.(7i)  And,  for  the  pre- 
vention and  remedy  of  delays  and  abuses  in  sheriffs,  under-sheriffs,  bailiffs  of 
liberties,  and  their  deputies,  and  other  bailiffs  of  sheriffs,  &c.  in  the  execution 
of  process  and  writs,  it  is  a  rule,(z')  that  "if  any  such  officer  shall  wilfully 
delay  the  execution  or  return  of  any  process  or  execution,  or  shall  take  or 
require  any  undue  fees  for  the  same,  or  shall  give  notice  to  the  defendant, 
thereby  to  frustrate  the  execution  of  any  process  or  writ,  or,  having 
[  *59  ]  levied  money,  shall  detain  it  in  his  hands,  after  the  return  of  *the 
writ  besides  the  ordinary  course  of  amerciaments,  the  contempt 
or  misdemeanor  appearing,  an  attachment,  information,  commitment  or  fine 
shall  be,  as  the  case  requireth ;  and  this  as  well  in  case  of  a  late,  as  the 
present  sheriff,  &c." 

There  are  other  officers,  who  may  here  be  noticed,  though  they  are  not 
properly  officers  of  the  court.  These  are  the  officers  who  attend  on  the  trial 
of  causes  at  nisi  prius  in  London  and  Middlesex,  consisting  of  the  clerk  of 
wui  j:?rms,  associate  and  marshal,  crier  and  train-bearer,  who  are  appoint- 
ed by  the  chief  justice  ;  and  the  officers  belonging  to  the  different  circuits, 
namely,  the  clerk  of  assize,  associate,  clerk  of  arraigns,  clerk  of  indict- 
ments, judge's  marshal,  crier,  clerk,  steward,  and  tipstaff. (a) 

(f)  2  Blac.  Rep.  1314.     7  Durnf.  &  East,  336.     5  Taunt.  180.  {d)  1  H.  Blac.  105. 
(e)  See  5  Price,  559,  n.                                                            ( f)  Man.  Ex.  Append.  270. 

[g)  Stat.  23  Hen.  VI.  c.  9,  R.  M.  1654,  ^  1,  R.  E.  15  Car.  IL  reg.  4  K.  B.  R.  M.  1654,  §  1,  R. 
H.  14  &  15  Car.  II.  reg  1,  R.  H.  15  &  16  Car.  11.  C.  P. 

{h)  R.  H.  21  Car.  I.  R.  E.  15  Car.  II.  reg.  4  K.  B.  and  see  R.  E.  23  Car.  I.  R.  M.  1654,  §  1, 
K.  B.  R.  M.  15  Eliz.  i  4,  R.  M.  1654,  g  1,  R.  H.  14  &  15  Car.  II.  rc^.  1,  R.  H.  15  &  16  Car.  II. 
C.  P. 

(i)R.  M.  1654,  §  2K.  B.  &  C.  P. 

{a)  For  a  more  particular  account  of  the  Officers  of  the  Courts,  their  appointment,  duties, 
and  fees,  &c.  see  the  Report  of  the  Select  Committee  of  the  House  of  Commons,  respecting 
Courts  of  Justice,  26  June^  1798. 


OF  THE  ADMISSION  OF  ATTORNEYS.  *G0 


♦CHAPTER    III. 

Of  the  Admission,  Enrolment,  Certificates,  and  Readmission  of 
Attorneys;  their  Privileges,  Disabilities,  and  Duties,  with  the 
Consequences  of  their  Misbehaviour. 

An  Attorney  is  a  person  put  in  the  place,  stead,  or  turn  of  another,  to 
manage  his  concerns  ;  and  may  be  either  appointed  to  jjrosccute,  or  defend 
an  action, (rta)  or  other  purposes. (6)  Before  the  statute  Westm.  11.  (13 
Edw.  I.)  c.  10,  the  parties  to  a  suit  coukl  not  have  appeared  by  attorney, 
without  the  king's  special  warrant,  by  writ  or  letters  patent ;  but  must  have 
attended  the  court  in  person. (c)  By  the  above  and  other  ancient  statutes, 
a  general  liberty  Avas  given  to  the  parties,  of  appearing  and  prosecuting  or 
defending  their  suits  by  attorney  ;{d)  in  consequence  whereof  the  increase 
of  attorneys  was  so  great,  that  several  acts  of  parliament  were  made  to 
regulate  them,  and  limit  their  number."(e)  And  by  the  statute  3  Jac.  1 
c.  7,  §  2,  it  was  enacted  that  "  none  should  from  thenceforth  be  admit- 
ted attorneys,  in  any  of  the  king's  courts  of  record  at  Westminster,  but 
such  as  had  been  brought  up  in  the  same  courts,  or  otherwise  well  prac- 
ticed in  soliciting  causes ;  and  had  been  found  by  their  dealings  to  be  skil- 
ful, and  of  honest  dispositions."  In  confirmation  of  this  statute,  a  rule  was 
made  in  both  courts,  that  none  should  be  admitted  an  attorney  therein,  un- 
less he  should  have  served,  by  the  space  of  five  years,  as  a  clerk  to  some 
judge,  Serjeant  at  law,  practising  counsel,  attorney,  clerk  or  officer  of  one 
of  the  courts  at  Westminster  ;  and  were  also,  on  examination,  found  of 
good  ability  and  honesty  for  such  employments.  (/)  And  it  was  then  usual 
to  nominate  twelve  or  more  able  practisers  of  the  courts  yearly,  whose 
business  it  was  to  examine  such  persons  as  should  desire  to  be  admitted 
attorneys  :  which  persons  were  first  to  attend  the  prothonotary,  with  their 
proof  of  service,  and  then  to  repair  to  the  persons  appointed  to  examine 
them,  and  on  being  approved,  were  to  be  presented  to  the  court  and  sworn 
in  unless  some  just  exception  were  made  against  them.(^)  it  was 
also  necessary  that  attorneys  *should  be  admitted,  and  reside  in  [  *G1  ] 
or  near  some  inn  of  chancery,  and  keep  commons  there.(<a!) 

At  length,  by  the  statute  2  Geo.  II.  c.  23,  §  5,  [continued  by  12  Geo. 
II.  c.  13,  §  3,  and  22  Geo.  II.  c.  46,  §  2,  and  made  2yerpetual  by  30  Geo.  II. 
c.  11>,  §  75,)  it  was  enacted,  that  "  no  person  shall  be  permitted  to  act  as 
an  attorney,  or  to  sue  out  any  writ  or  process,  or  to  commence,  carry  on, 
or  defend  any  action  or  actions,  or  any  proceedings,  either  before  or  after 
judgment  obtained,  in  the  name  or  names  of  any  other  person  or  persons, 
in  his  majesty's  court  of  King's  Bench,  Common  Pleas,  or  Exchequer,  or 
duchy  of  Lancaster,  or  any  of  his  majesty's  courts  of  Great  Sessions  in 

(aa)  Com.  Dig.  tit.  Attorney,  A.  B.  (i)  Id.  C.  and  see  3  Black  Com.  25. 

(c)  Co.  Lit.  128,  a,  2  Inst.  249,  378,  F.  N.  B.  25.    C.  Gill'.  C.  P.  32. 

{d)  Com.  Dig.  tit.  Attorneu,  B.  5. 

(e)  4  Hen.  IV.  c.  18.  33  Hen.  VI.  C.  7.  See  also  the  rules  of  M.  15  Eliz.  §  10,  T.  24  Eliz. 
5  9,  &  H.  14  Jac.  I.  rcg.  2,  §  2,  C.  P. 

(/•)  11.  M.  1654, 1  1,  K.  B.  &  C.  P.  and  see  R.  H.  8  Car.  I.  §  3,  C.  P. 

(V)  II.  M.  1654, 1  4,  K.  B.  &  C.  P. 

(«)  R.  M.  1654,  \  1,R.  M.  3  Ana.  K.  B.  R.  M.  1G54.  \  1.  R.  T.  29  Car.  II.  rcr,.  1.  R.  11. 
36  Car.  II.    R.  M.  4  Ann.  C.  P. 


Ql  OF  THE  ADMISSION 

Wales  or  in  any  of  the  courts  of  the  counties  palatine  of  Chester,  Lan- 
caster and  Durham,  or  in  any  other  court  of  record  in  that  part  of  Great 
Britain  called  Ungland,  wherein  attorneys  have  been  accustomably  admit- 
ted and  sworn,  unless  such  person  shall  have  been  bound,  by  contract  in 
writinq,{h)  to  serve  as  a  clerk,  for  and  during  the  space  oi  five  years  to  an 
attorney  duly  and  legally  sworn  and  admitted  according  to  that  act ;  and 
that  such  person,  for  and  during  the  said  term  of  five  years,  shall  have 
continued  in  such  service  ;(c)  and  also  unless  such  person,  after  the  expi- 
ration, of  the  said  term  of  five  years,  shall  be  examined,  sworn,  admitted, 
and  enrolled,  in  manner  therien  mentioned ;  And  in  case  any  person  shall 
in  his  own  name,  or  in  the  name  of  any  other  person,  sue  out  any  writ  or 
process,  or  commence,  prosecute,  or  defend  any  action  or  suit,  or  any  pro- 
ceeding, in  any  of  the  courts  of  law  aforesaid,  or  courts  of  Equity  therein 
mentioned,  as  an  attorney  or  solicitor,  for  or  in  expectation  of  any  gain, 
fee,  or  reward,  without  being  admitted  and  enrolled  as  aforesaid,  every 
such  person,  for  every  such  offence,  shall  forfeit  and  pay  501.  to  the  use 
of  the  person  who  shall  prosecute  him  for  the  said  offence;  and  it  is  there- 
by made  incapable  to  maintain  or  prossecute  any  action  or  suit,  in  any 
court  of  law  or  equity,  for  any  fee,  reward  or  disbursements,  on  account  of 
prosecuting,  carrying  on,  or  defending  any  such  action,  suit,  or  proceed- 
ing."{d)  The  court  of  Common  Pleas,  however  would  not  grant  an  at- 
tachment  against  a  person  who  had  acted  as  an  attorney  of  that  court, 
without  having  been  admitted ;  but  left  the  party  to  sue  for  the  penalty 
given  him  by  the  statute  2  Geo.  11.  c  23,  §  24.((?) 

By  subsequent  statutes,  it  is  made  penal  for  any  person  to  act  as  an  attor- 
ney in  the  county  court,(/)  or  at  any  general  or  quarter  sessions  of  the 
peace,(^^)  unless  such  person  shall  have  been  duly  admitted  an  attorney,  and 
enrolled  as  aforesaid.  And  by  the  statute  34  Geo.  III.  c.  14,  §  4 
[  *G2  ]  "  in  case  *any  person,  other  than  such  who  shall  have  been  admit- 
ted an  attorney,  in  one  of  the  courts  of  Great  Sessions' in  Wales, 
or  of  the  counties  palatine  of  Chester,  Lancaster,  or  Durham,  or  in  some 
other  court  of  Record  in  England  where  attorneys  have  been  accustomably 
admitted  and  sworn,  by  virtue  of  a  contract  made  before  the  5th  and  10th 
days  of  February,  1794,  respectively,  and  a  service  in  pursuance  thereof, 
or  who  shall  have  been  admitted  a  solicitor  in  one  of  the  said  courts  of 
Great  Sessions,  or  of  the  said  counties  palatine,  or  some  other  inferior  court 
of  equity  in  England,  by  virtue  of  a  like  contract  and  service,  and  accord- 
ing to  the  directions  of  the  several  acts  then  in  force  for  the  regulation  of 
attorneys  and  solicitors  respectively,  shall  in  his  own  name,  or  in  the  name 
of  any  other  person,  sue  out  any  writ  or  process,  or  commence,  prosecute 
or  defend  any  action  or  suit  or  any  proceeding,  in  any  of  the  said  courts  at 
Westminster,  as  an  attorney  or  solicitor,  for  or  in  expectation  of  any  gain, 
fee  or  reward,  without  being  admitted  and  enrolled  an  attorney  or  solicitor 
in  one  of  the  said  courts  at  Westminster,  according  to  the  directions  of  the 
several  acts  in  force  for  the  regulation  of  attorneys  and  solicitors,  every  such 
person  shall,  for  every  such  offence,  forfeit  the  sum  of  one  hundred  pounds ; 

(J)  Append.  Chap.  III.  §  1. 

(c)  But  see  2  Blac.  Rep.  734,  957,  where  attorneys  were  admitted  hy  the  court  of  Commoa 
Pleas,  under  special  circumstances,  though  they  had  not  regularly  served  the  whole  term  of 
five  years  under  the  original  articles:  and  see  1  Chit.  Rep.  14.     1  Dowl.  &  Ryl.  14. 

{d)  2  Geo.  II.  c.  23,  §  24,  and  see  7  Moore,  54,  3  Brod.  &  Bing.  241,  S.  C. 

{e)  6  Moore,  70.  (/)  12  Geo.  II.  c.  13,  §  7.  {gg)  22  Geo.  II.  c.  46,  §  12. 


OF  ATTORNEYS.  62 

one  moiety  thereof  to  the  use  of  his  majesty,  and  the  other  moiety,  with 
full  costs  of  suit,  to  the  use  of  such  person  ^vho  shall  prosecute  for  the  said 
offence,  hy  action  of  deht,  kc.  in  any  of  his  majesty's  courts  of  record  at 
Westminster :  And  such  person  is  thereby  also  made  incapable  to  maintain 
or  prosecute  any  action  or  suit,  in  any  court  of  law  or  equity,  for  any  fee, 
reward  or  disbursements,  on  account  of  prosecuting,  carrying  on  or  defend- 
ing any  such  action,  suitor  proceeding."  An  attorney  therefore,  who  has 
been  admitted  in  one  of  the  courts  of  Great  Sessions  in  Wales,  or  of  the 
counties  palatine  of  Clicster,  Lancaster,  or  Durham,  kc.  since  the  10th 
day  of  February  1794,  is  not  entitled  to  practise  in  the  courts  ^iWest- 
minster,  without  being  also  admitted  an  attorney  therein  ;  and  he  cannot  be 
so  admitted,  unless  the  highter  duty  was  paid  on  his  articles  of  clerkship. 

There  is  a  2?roviso,  however,  in  the  statute  2  Geo.  II.  c.  23,  §  20,  that 
"  nothing  therein  contained  shall  extend,  or  be  construed  to  extend,  to  the 
examination,  SAvearing,  admission,  or  enrolment  of  the  six  clei'ks  of  the 
court  of  Chancery,  or  the  sworn  clerks  in  their  office  or  the  waiting  clerks 
belonging  to  the  said  six  clerks,  or  the  cursitors  of  the  said  court,  or  of  the 
clerks  of  the  petty  bag  office,  or  of  the  clerks  of  the  king's  coroner  and 
attorney  in  the  court  of  King's  Bench,  or  of  the  filacers  of  the  same  court, 
or  of  the  filacers  of  the  court  of  Common  Pleas  at  Westminster,  or  of  the 
attorneys  of  the  court  of  the  duchy  chamber  of  Lancaster,  or  of  the  attor- 
neys of  the  court  of  Exchequer  at  Chester,  or  of  the  attorneys  of  the  courts 
of  the  lord  mayor  and  sheriffs  of  London  respectively,  for  the  time  being  ; 
but  that  the  said  clerks,  filacers,  and  attorneys  respectively,  shall  and  may  be 
examined,  sworn,  admitted,  enrolled,  and  practise,  in  their  respective  courts 
and  offices  aforesaid,  in  like  manner  as  they  might  have  been  or  done  before 
the  making  of  that  act."  And,  by  the  statute  49  Geo.  III.  c.  28, 
§  1,  "  persons  having  *served  a  clerkship  o^  five  years,  to  some  of  [  *63  ] 
the  clerks  of  the  king's  coroner  and  attorney  in  the  court  of 
King's  Bench,  who  have  been  regularly  admitted  as  such  clerks,  shall  and 
may  be  approved,  sworn  and  admitted  to  practise,  and  may  practise  as 
attorneys  in  the  said  court  of  King's  Bench,  and  may  also  practise  in  any 
other  of  the  courts  of  record  in  the  said  recited  act  mentioned,  in  the  name, 
and  with  the  consent  of  some  sworn  attorney  of  such  court,  such  consent 
to  be  in  writing,  and  signed  by  such  attorney  as  aforesaid,  in  like  manner  as 
the  attorneys  of  such  court,  or  the  attorneys  or  clerks  of  the  offices  of  the 
king's  remembrancer,  treasurer's  remembrancer,  pipe,  or  office  of  pleas  in 
the  court  of  Exchequer  at  Westminster,  are  in  and  by  the  said  act  empow- 
ered to  do."(a) 

Also,  by  the  statute  1  &  2  Geo.  IV.  c.  48,  §  1,  (as  amended  by  the  statute 
3  Geo.  IV.  c.  16,  "in  case  any  person,  who  shall  have  taken  the  degree  of 
bachelor  of  arts,  or  bachelor  of  law,  either  in  the  university  of  Oxford  or 
Cambridge,  or  in  the  university  of  Dublin,  shall,  at  any  time  after  he  shall 
have  taken  such  degree,  be  bound  by  contract  in  writing  to  serve  as  a  clerk, 
for  and  during  the  space  of  three  years,  to  an  attorney  or  solicitor,  &c.  in 
some  or  one  of  the  courts  of  law  or  equity  in  the  therein  recited  acts  of  the 
second,  seventh,  and  twenty-second  years  of  the  reign  of  king  George  the 
second  mentioned,  and  during  the  said  term  of  three  years  shall  continue  in 
such  service,  and  during  the  whole  term  of  such  three  years'  service,  shall 
continue  and  be  actually  employed  by  such  attorney  or  solicitor,  or  his 

[a)  2  Geo.  II.  c.  23,  g  27. 


(53  or  THE  ADMISSION 

af^ent  or  a.o-ents,  in  the  proper  business,  practice  or  employment  of  an  attor- 
ney or  solicitor,  and  shall  also  cause  an  affidavit,  or  being  one  of  the  people 
called  Quakers,  a  solemn  affirmation,  of  himself,  or  of  such  attorney  or  so- 
licitor to  whom  he  was  bound  as  aforesaid,  to  be  duly  made  and  filed,  that 
he  hath  actually  and  really  so  served  and  been  employed,  during  the  said 
whole  term  of  three  years,  in  like  manner  as  is  required  by  the  said  recited 
acts  with  respect  to  persons  thereby  required  to  serve  for  the  term  of  five 
years,  shall  and  may  be  qualified  to  be  sworn,  or  take  his  solemn  affirma- 
tion, and  to  be  admitted  and  enrolled  as  an  attorney  or  solicitor  respectively, 
according  to  the  nature  of  his  service,  in  the  several  and  respective  courts  of 
law  or  equity,  as  fully  and  effectually  to  all  intents  and  purposes,  as  any 
person,  have  been  bound,  and  having  served  five  years,  is  qualified  to  be 
sworn  or  take  his  solemn  affirmation,  and  to  be  admitted  or  enrolled,  un- 
der or  by  virtue  of  the  said  recited  acts,  or  any  other  act  or  acts  for  the 
regulation  of  attorneys  or  solicitors  in  England.  Provided  always,  that 
nothing  in  this  act  contained  shall  extend  to  any  person  who  shall  have  taken 
such  degree  of  bachelor  of  arts,  unless  such  person  shall  have  taken  such 
degree  within  six  years  next  after  the  day  when  he  shall  have  been  first 
matriculated  in  the  said  universities  respectively ;  nor  to  any  person  who 
shall  have  taken  such  degree  of  bachelor  of  law,  unless  he  shall  have  taken 

the  same  within  eight  years  after  such  matriculation  ;  nor  to  any 
[  *64  ]    person,  who  shall  be  bound  *by  contract  in  writing  to  serve  as 

clerk  to  an  attorney  or  solicitor,  under  the  provisions  of  this  act, 
unless  such  person  shall  be  so  bound  within  four  years  next  after  the  day 
when  he  shall  have  taken  such  degree. "(^)  This  i^roviso  however,  by  a 
subsequent  statute, (6)  does  not  apply  to  persons  who  had  taken  such 
degrees,  previous  to  the  passing  of  the  former  act. 

And,  for  the  better  preventing  unqualified  persons  from  being  admitted 
attorneys  and  solicitors,  and  for  rendering  the  said  act  of  2  Geo.  II.  more 
effectual,  "every  person  who  shall  be  bound,  by  contract  in  writing,  to  serve 
as  a  clerk  to  any  attorney  or  solicitor,  as  by  the  said  act  is  directed,  shall 
within  three  months  next  after  the  date  of  every  such  contract,  cause  an 
affidavit  to  be  made  and  duly  sworn,  of  the  actual  execution  of  every  such 
contract,  by  every  such  attorney  or  solicitor,  and  the  person  so  to  be  bound 
to  serve  as  a  clerk  as  aforesaid :  and  in  every  such  affidavit  shall  be  speci- 
fied the  names  of  every  such  attorney  or  solicitor,  and  of  every  such  per- 
son so  bound,  and  their  places  of  abode  respectively,  together  with  the  day 
of  the  date  of  such  contract  ;{c)  and  every  such  affidavit  shall  he  filed,  within 
the  time  aforesaid,  in  the  court  where  the  attorney  or  solicitor  to  whom 
every  such  person  respectively  shall  be  bound,  hath  been  enrolled  as  an 
attorney  or  solicitor,  with  the  respective  officers,  or  their  deputies,  therein 
mentioned,  who  shall  make  and  sign  a  memorandum,  or  mark  the  day  of 
filing  every  such  affidavit,  at  the  back  or  bottom  thereof  ;((i)  and  no  person 
who  shall  become  bound  as  aforesaid,  shall  be  admitted  or  enrolled  an  attor- 
ney or  solicitor,  in  any  court  in  the  said  act  mentioned,  before  such  affidavit, 
so  marked  by  the  proper  officer,  shall  be  produced,  and  openly  read  in  the 
court  where  such  person  shall  be  admitted  and  enrolled  an  attorney  or  solici- 
tor." (e)     The  officers  appointed  for  this  purpose,  are  the  chief  clerk,  or  his 

(a)  §  4.    And,  for  the  form  of  an  affidavit  of  execution  of  articles,  &c.  on  this  statute,  see 
Append.  Chap.  III.  ^  3. 

(i)  7  Geo.  IV.  c.  44,  |  5.  (c)  Append.  Chap.  III.  g  2. 

id)  22  Geo.  II.  c.  46,  |  3.  (e)    d.  \  4. 


OF  ATTORNEYS.  64 

deputy,  in  the  King's  Bonch,(/)  and  the  clerk  of  the  warrants  in  the  Com- 
mon Pleas ;(/)  who  are  directed  to  keep  a  book,  wherein  shall  be  entered 
the  substance  of  such  affidavit,  specifying  the  names  and  places  of  abode  of 
every  such  attorney  or  solicitor,  and  clerk  or  person  bound  as  aforesaid,  and 
of  the  person  making  such  aflidavit,  with  the  date  of  tlic  articles  or  contract, 
and  the  days  of  swearing  and  filing  every  such  affidavit  respectively ;  for 
which  a  fee  of  two  shillings  and  sixpence  is  allowed  to  ba  taken,  and  no 
more.(//)  Indemnity  acts,  however,  are  occasionally  passed,  relieving  per- 
sons who  have  neglected  to  file  their  affidavits  witliin  the  limited 
time  :(7i)  And  *in  some  of  these  acts,(a)  there  is  a  clause  allowing  [  *G5  ] 
persons  to  make  and  file  affidavits  of  the  execution  of  articles  of 
clerkship,  within  a  limited  time,  although  the  persons  whom  they  served, 
have  neglected  to  take  out  their  annual  certificates.  This  clause,  in  the  in- 
demnity act  of  4  Geo.  IV.  c.  1,  was  holden  to  be  prosj^cctioe,  as  well  as 
retrospective  ;  extending  to  those  persons  who  might  be  in  default  during 
the  time  for  which  it  was  made,  and  not  being  limited  to  those  who  had 
incurred  penalties  or  disabilities,  before  it  passed. (J) 

By  the  last  general  stamp  act,(6')  a  duty  of  one  hundred  and  tiventy 
pounds  is  imposed  upon  the  articles  or  contract,  whereby  any  person  shall 
first  become  bound  to  serve  as  a  clerk,  in  order  to  his  admission  as  an  attor- 
ney or  solicitor,  in  any  of  his  majesty's  courts  at  Westminster ;  and  a  duty 
of  sixty  pounds,  in  any  of  the  courts  of  Great  Sessions  in  Wales,  or  coun- 
ties palatine  of  Chester,  Lancaster,  and  Durham,  or  in  any  other  court  of 
record  in  England,  holding  pleas  where  the  debt  or  damage  amounts  to 
forty  shillings ;  and  a  duty  of  one  pound  fifteen  shillings,  for  any  counter- 
part or  duplicate  of  any  such  articles  of  contract  of  clerkship  :  which  are  in 
lieu  of  all  former  duties  previously  imposed,  as  well  on  the  articles  or  con- 
tract, as  on  the  amount  of  the  premium  paid  with  the  clerk.  This  regula- 
tion, being  calculated  to  prevent  improper  persons  from  being  admitted 
into  the  profession,  has  been  productive  of  the  most  beneficial  consequences. 
And  by  the  statute  34  Geo,  III.  c.  14,  §  2,  "no  person,  who  by  any  such 
contract  shall  be  bound  to  serve  as  a  clerk  as  aforesaid,  shall  be  admitted  to 
be  a  solicitor  or  attorney  in  any  of  the  said  courts,  unless  the  indenture  or 
other  writing  containing  such  contract,  duly  stamped  according  to  the  direc- 
tions of  the  said  act,  shall  be  enrolled  or  registered,  with  the  proper  officer 
to  be  appointed  for  that  purpose,  in  the  court  wherein  such  person  shall  pro- 
pose to  be  afterwards  admitted  a  solicitor  or  attorney,  by  virtue  of  his  ser- 
vice under  such  contract ;  together  with  an  affidavit  of  the  time  of  the  exe- 
cution of  the  contract  by  such  clerk :  And  in  case  such  indenture  or  other 
writing  shall  not  be  enrolled  or  registered  in  such  court,  within  six  months 

(/)  Id.  ?  5.  This  section  also  appoints  the  proper  officers  for  filing  such  aflidavits,  in  the 
courts  of  Chaiicen/  and  Exchequer,  Duchy  Chamber  of  Lancaster  County  Palatine  courts,  and 
courts  of  Great  Sessions  in  Wales. 

iff)  Id.  I  6. 

\h)  See  the  statutes  37  Geo.  III.  c.  60,  §  3*,  c.  93*.  39  &  40  Geo.  III.  c.  72.  44  Geo.  III. 
c.  59*.  50  Geo.  III.  c.  4.  52  Geo.  III.  c.  26.  54  Geo.  III.  c.  5*.  55  Geo.  III.  c.  17.  56 
Geo.  III.  c.  33.  57  Geo.  III.  c.  14.  58  Geo.  III.  c.  5*.  59  Geo.  III.  c.  11.  60  Geo.  III.  & 
1  Geo.  IV.  c.  10.  1  &  2  Geo.  IV.  c.  5.  3  Geo.  IV.  c.  12*.  4  Geo.  IV.  c.  1*.  5  Geo.  IV.  c. 
6*.  G  Geo.  IV.  c.  45*.  7  Geo.  IV.  c.  44,  §  1,  2,*  and  7  &  8  Geo.  IV.  c.  45.  N.  B.  Such  of 
these  statutes  as  are  marked  with  an  asterisk  ,are  to  be  found  in  the  statutes  at  large. 

(a)  58  Geo.  III.  c.  5,  ?  7.    3  Geo.  IV.  c.  12,  g  8.    4  Geo.  IV.  c.  1,  §  8.    6  Geo.  IV.  c.  46. 

\b)  2  Barn.  &  Cres.  34. 

(c)  55  Geo.  III.  c.  184,  Sched.  Part.  I.  And,  for  the  former  duties,  see  the  statutes  8  Ann. 
c.  9,  I  32,  37.  34  Geo.  III.  c.  14,  §  1.  44  Geo.  III.  c.  98,  Sched.  A,  and  48  Geo.  III.  c.  149, 
Sched.  Part  I. 


g5  OF  THE  ADMISSION 

next  after  the  execution  thereof,  together  with  such  affidavit  of  the  time  of 
the  execution  of  the  contract,  then  the  service  of  such  clerk,  under  such  in- 
denture or  writing,  shall  be  deemed  to  commence  from  the  time  of  such 
enrolment  or  registry  only,  and  not  from  the  execution  of  such  indenture  or 
writing."  By  a  subsequent  statute,(fZ)  however,  persons  who  shall  have 
paid  the  duties,  within  six  months  after  execution  of  the  articles 
[  *QQ  ]  of  ^clerkship,  but  shall  have  neglected  to  cause  the  necessary  affi- 
davits to  be  filed  within  the  time  required,  were  indemnified,  on 
filing  them  on  or  before  the  10th  October.  1826:  but  the  commissioners  of 
stamps  are  prohibited  by  that  statute,  from  stamping  any  articles  of  clerk- 
ship, &c.,  after  six  months  from  the  date  thereof.(a)  Where  the  original 
articles  of  clerkship  had  been  lost,  the  court  of  King's  Bench,  on  motion, 
ordered  that  the  master  should  be  at  liberty  to  enrol  a  copy  of  them.  (6)  But 
where  a  clerk  had  been  articled  to  an  attorney  in  the  country,  and  the  in- 
dentures had  been  sent  up  to  London,  to  be  enrolled  in  the  master's  office, 
pursuant  to  the  statute,  and  after  the  clerkship  had  been  served,  no  trace  of 
the  indentures  could  be  discovered  in  the  master's  office,  the  court  refused 
to  admit  him  ;  although  it  appeared  from  the  books  of  the  town  agent,  that 
a  clerk  of  the  latter  had  paid  the  fees  payable  in  the  master's  office  upon 
the  enrolment,  at  the  time  when  it  was  supposed  to  have  taken  place. (c) 

No  attorney  or  solicitor  is  allowed  to  have  more  than  tivo  articled  clerks, 
at  the  same  i\m.Q',(dd)  nor  can  take,  have,  or  retain  any  clerk,  who  shall 
become  bound  by  contract  in  writing  as  aforesaid,  after  such  attorney  or  soli- 
citor shall  have  discontinued  or  left  off,  or  during  such  time  as  he  shall  not 
actually  practise  as,  or  carry  on  the  business  of  an  attorney  or  solicitor.(e) 
And,  by  a  rule  of  court  of  the  King's  Bench  and  Common  Pleas,(/)  "  no 
attorney  who  shall  be  retained  or  employed  as  a  writer  or  clerk,  by  any 
other  attorney,  shall,  during  the  time  of  such  employ,  take  or  have  any 
clerk  under  articles ;  and  no  service  to  any  such  attorney  under  articles, 
during  the  time  that  such  attorney  shall  be  so  employed  by  any  other  attor- 
ney, shall  be  deemed  good  service:"  which  rule  was  determined  by  the 
court  of  King's  Bench,  to  have  a  retrospective  operation ;  it  not  being  in- 
troductive  of  any  new  regulation,  but  confirmatory  of  an  old  one.(^)  And 
where  articles  of  clerkship  appeared  to  have  been  entered  into  collusively, 
between  an  attorney  and  a  person  who  was  and  continued  to  act  as  a  turn- 
key of  the  King's  Bench  prison,  for  the  purpose  of  securing  the  business  of 
the  prisoners  to  the  attorney,  the  court  ordered  them  to  be  cancelled, (A) 

With  respect  to  the  service  in  general,  under  articles  of  clerkship,  it  is 
enacted,  by  the  statute  22  Geo.  ,  II.  c.  46,  §  8,  that  "every  person  who 
shall  become  bound  by  contract  in  writing  to  serve  any  attorney  or  solicitor, 
shall,  during  the  whole  time  and  term  of  service  to  be  specified  in  such 
contract,  continue  and  be  actually  employed  by  such  attorney  or  solicitor, 
or  his  or  their  agent  or  agents,  in  the  proper  business,  practice,  or  employ- 
ment of  an  attorney  or  solicitor."  By  the  above  statute,  it  is  necessaay 
that  a  clerk,  in  order  to  be  admitted  an  attorney,  should  actually  serve  jive 
years  under  articles  :  Therefore,  where  a  clerk  had  served  part  of  his  time 

[d)  7  Geo.  IV.  c.  44,  §  1. 

(a)  §  4.  (b)  3  Barn.  &  Aid.  610. 

(c)  Dowl.  &  Ilyl.  429.    1  Barn  &  Cres.  264,  S.  C. 

{dd)  2  Geo.  II.  c.  23,  §  15.  {e)  22  Geo.  II.  c.  46,  §  7. 

(/)  R.  T.  31  Geo.  III.  K.  B.  &  C.  P.    4  Durnf.  &  East,  379. 

{g)  4  Durnf.  &  East,  492.  {h)  1  Bur.  291. 


OF  ATTORNEYS.  66 

with  a  master  who  had  left  the  country,  and,  before  his  articles 
*were  assigned  to  another  master,  an  interval  of  ten  months  had  [  *C7  J 
elapsed  during  which  he  was  not  serving  under  any  articles,  but 
under  the  assignment,  he  served  the  remainder  of  the  time  specified,  the 
court  would  not  allow  him  to  be  admitted,  until  he  had  served  out  the  te7i 
months,  under  new  articles. (a)  And  it  has  been  holden,  that  the  requisite 
of  the  statute  is  not  complied  with,  by  the  clerk's  serving  part  of  the  time 
with  another  attorney,  though  with  his  master's  consent,  and  the  rest  of 
the  time  with  his  master.(i)  So,  where  a  clerk  to  an  attorney  held,  during 
the  term  for  which  he  was  bound,  the  office  of  surveyor  of  taxes  under  the 
crown,  the  court  of  King's  Bench  determined,  that  he  could  not  be  consi- 
dered as  having  served  his  whole  time  and  terra  in  the  proper  business  of 
an  attorney ;  and  upon  that  ground,  ordered  him,  after  he  had  been  admit- 
ted to  be  struck  off  the  roll.(c)  In  this  case  the  clerk  afterwards  bound 
himself  to  another  attorney,  and  served  him  for  tivo  years  ;  at  the  expira- 
tion of  which  time  he  was  again  admitted  an  attorney,  upon  an  affidavit 
stating  that  for  more  than  three  of  the  Jive  years  for  which  he  was  origin- 
ally bound,  his  service  had  been  given  to  the  attorney  to  whom  he  was 
articled ;  and  on  moving  to  strike  him  off  the  roll,  it  was  held,  that  his 
service  under  the  first  articles,  could  not  be  coupled  with  his  service  under 
the  second,  so  as  to  entitle  him  to  be  admitted. (c^)  But  the  court  of  Com- 
mon Pleas  refused  to  strike  an  attorney  off  the  roll,  on  an  affidavit  which 
stated  that  he  had  not  served  a  regular  clerkship :  as  he  had  been  opposed 
by  counsel  before  a  judge,  on  the  same  ground,  at  the  time  he  was  admit- 
ted, and  no  misconduct  or  malpractice  had  been  imputed  to  him,  subse- 
quently to  such  admission. (e) 

There  is  a  pr'oviso,  however,  in  the  statute  22  Geo.  II.  c.  4G.  (/)  that  "if 
any  attorney  or  solicitor,  to  or  with  whom  any  such  person  shall  be  so  bound, 
shall  happen  to  die,  before  the  expiration  of  such  term,  or  shall  discontinue 
or  leave  off  such  his  practice  as  aforesaid,  or  if  such  contract  shall  by  mutual 
consent  of  the  parties  be  cancelled,  or  in  case  such  clerk  shall  be  legally 
discharged,  by  any  rule  or  order  of  the  court  wherein  such  attorney  or 
solicitor  shall  practice,  before  the  expiration  of  such  term,  and  such  clerk 
shall  in  any  of  the  said  cases,  be  bound  by  another  contract  or  other  con- 
tracts in  writing  to  serve,  and  shall  accordingly  serve,  in  manner  before 
mentioned,  as  clerk  to  any  other  practising  attorney  or  attorneys,  solicitor 
or  solicitors  respectively,  during  the  residue  of  the  said  term  of  five  years, 
then  such  service  shall  be  deemed  and  taken  to  be  as  good,  effectual,  and 
available,  as  if  such  clerk  had  continued  to  serve  as  a  clerk  for  the  said  term, 
to  the  same  person  to  whom  he  was  originally  bound ;  so  as  an  affidavit  be 
duly  made  and  filed,  of  the  execution  of  such  second  or  other  con- 
tract or  contracts,  within  the  time,  *and  in  like  manner  as  is  be-  [  *GS  ] 
fore  directed,  concerning  such  original  contract."  And,  by  the 
statute  34  Geo.  III.  c.  14,  §  5,  "if  any  person,  having  been  articled  to  any 
attorney  or  solicitor  for  the  term  of  five  years,  and  having  duly  paid  the 
duty  by  that  act  imposed,  shall,  on  the  event  of  such  attorney  or  solicitor 
dying,  or  leaving  off  his  practice,  or  of  such  articles  being  cancelled  or  dis- 
charged, or  on  any  other  event,  before  the  expiration  of  such  term  of  five 

(a)  2  Chit.  Rep.  61, 

(b)  7  Durnf.  &  East,  456,  but  see  the  case  ex  parte  Blunt,  2  Blac.  Rep.  764.    Ante,  61,  (<?). 

(c)  5  Barn.  &  Aid.  538.  (d)  4  Barn.  &  Crcs.  341.    6  Dowl.  k  Rvl.  428,  S.  C. 
(«)  7  Moore,  572.     1  Bing.  IGO,  S.  C.  {/)  g  9,  and  see  stat.  2  Geo.  H.  c.  23,  g  12. 


68 


OF  THE  AD.A[ISSION 


years  enter  into  any  subsequent  contract,  with  any  other  attorney  or  soli- 
citor to  serve  him  as  his  clerk,  for  the  residue  of  the  said  term  of  five 
^'•ears  such  last-mentioned  contract  shall  not  be  subject  to  or  chargeable 
•with  any  of  the  duties  by  that  act  imposed. "(a)  The  duty  of  one  pound 
fifteen  shillings,  however,  is  payable,  by  the  last  general  stamp  act,(5)  for 
any  articles  of  clerkship  or  contract,  whereby  any  person  shall  become 
bound  to  serve  as  a  clerk,  in  order  to  his  admission  as  an  attorney  or  soli- 
citor, for  the  residue  of  the  term  for  which  he  was  originally  bound,  in 
consequence  of  the  death  of  his  former  master,  or  of  the  contract  between 
them  being  vacated  by  consent,  or  by  rule  of  court,  or  in  any  other  event; 
and  for  any  counterpart  or  duplicate  thereof. 

An  articled  clerk,  having  served  part  of  his  clerkship  with  an  attorney 
who  died  before  the  expiration  of  his  term,  is,  it  seems,  at  liberty,  even 
after  an  interval  of  six  years,  to  serve  the  remainder  of  his  clerkship  with 
another  attorney,  with  a  view  to  his  admittance  :(c)  And  the  court  of 
King's  Bench  granted  a  rule  to  discharge  an  articled  clerk,  where  the  at- 
torney to  whom  he  was  bound  had  become  bankrupt,  and  absconded ;  and 
directed  the  rule  to  be  served  at  the  last  place  of  abode  of  the  attorney, 
and  on  the  clerk  to  the  commission  of  bankruptcy,  and  also  to  be  stuck  up 
in  the  King's  Bench  office. (t?)  This  court  has  also  a  summary  jurisdiction 
over  matters  in  difference  between  attorneys  and  their  clerks :  and,  therefore, 
where  a  clerk  had  misconducted  himself,  and  left  the  service  of  the  attor- 
ney to  whom  he  was  articled,  at  the  end  of  a  year  and  a  half,  and  the  latter 
refused  to  take  him  back  in  consequence  of  his  previous  misconduct,  the 
court  referred  it  to  the  master,  who  decided  that  a  portion  of  the  premium 
should  be  returned  ;  and  this  decision  was  confirmed  by  the  court,  though 
the  point  in  question  had  been  decided  otherwise  in  a  suit  in  the  Exche- 
quer, (c)  But  the  court  refused  to  compel  an  attorney  to  execute  an  assign- 
ment of  articles  of  clerkship,  where  the  clerk  had  been  guilty  of  criminal 
conversation  with  an  attorney's  wife,  even  though  the  attorney  had  pro- 
mised to  assign  him  over.(/) 

It  is  a  rule,  that  "  no  person  who  shall  enter  into  articles  with  an  attorney 
or  attorneys,  shall  be  at  liberty  to  serve  the  agent  or  agents  of  such 
[  *69  ]  attorney  or  attorneys,  under  such  articles,  for  a  longer  time  than  *one 
year  of  his  clerkship :  and  any  such  service  to  an  agent  or  agents, 
beyond  that  time,  shall  not  be  deemed  good  service. "(aa)  But,  by  the 
statute  1  &  2  Geo.  IV.  c.  48,  §  2,  "  if  any  person,  bound  by  contract 
in  writing,  to  serve  as  a  clerk  for  the  space  of  five  years,  in  manner  men- 
tioned in  the  therein  recited  acts,  shall  actually  and  bona  fide  be  and  con- 
tinue as  pupil  to  any  practising  barrister,  or  to  any  person  bona  fide  prac- 
tising as  a  certificated  special  pleader,  in  England  or  Ireland,  for  any  part 
or  parts  of  the  said  term  of  five  years,  not  exceeding  one  year,  it  shall  be 
lawful  for  the  judge,  or  other  sufficient  authority,  to  whom  such  persons  shall 
apply  to  be  admitted  as  attorney  or  solicitor,  or  upon  affidavit  or  affirmation 
of  such  clerk,  and  of  such  barrister  or  special  pleader,  to  be  duly  made  and 

(a)  And  see  the  statutes  48  Geo.  III.  c.  149,  §  10,  &  55  Geo.  III.  c.  184,  Sched.  Part  I.  tit. 
Articles  of  Clerkship. 

(6)  55  Geo.  III.  c.  184,  Sched.  Part  I.  And,  for  the  former  duty,  see  the  statutes  44  Geo. 
III.  c.  98,  Sched.  A.    48  Geo.  III.  c.  149,  Sched.  Part  I. 

(c)  1  Dowl.  &  Ryl.  14.  {d)  1  Chit.  Rep.  558,  in  noiis.    2  Chit.  Rep.  62,  S.  0. 

(/)  3  Barn.  &  Aid.  257.      1  Chit.  Rep.  694,  S.  C. 

{f)Ex  parte  Briggs,  M.  22  Geo.  III.  K.  B. 

[aa)  R.  T.  31  Geo.  III.  K.  B.    4  Durnf.  &  East,  379. 


OF  ATTORNEYS.  69 

filed,  and  upon  being  satisfied  that  sucli  person,  so  applying  for  admission, 
had  actually  and  really  been  and  continued  witli,  and  had  been  employed  as 
pupil  by  such  practising  barrister  or  special  pleader  as  aforesaid,  (but  not 
otherwise,)  to  admit  such  person  as  attorney  or  solicitor,  in  like  manner  as  is 
now  done  in  cases  where  the  clerk  has  served  part  of  the  term  of  his  clerk- 
ship, with  the  agent  of  the  person  to  whom  he  has  been  bound." 

And,  to  the  intent  that  better  information  may  be  obtained,  touching  the 
fitness  and  qualifications  of  persons  applying  to  be  admitted  attorneys,  there 
arc  rules  in  the  king's  Bench,(i)  that  "  every  person  who  shall  intend  to 
apply  for  admission  as  an  attorney  in  that  court,  and  who  shall  not  have 
been  admitted  an  attorney  or  solicitor  of  any  other  court,  shall,  for  the  space 
of  one  full  term  previous  to  the  term  in  which  he  shall  apply  to  be  admitted, 
cause  his  name  and  place  of  abode,  and  also  the  name  or  names,  and  place  or 
places  of  abode  of  the  attorney  or  attorneys  to  whom  he  shall  have  been 
articled,  written  in  legible  characters,  to  be  affixed  on  the  outside  of  the 
court  of  King's  Bench,  in  such  places  as  public  notices  are  usually  affixed 
on,  and  in  the  King's  Bench  office;  and  also  enter  or  cause  to  be  entered,  in 
a  book  to  be  kept  for  that  purpose,  at  each  of  the  judges  chambers  of  this 
court,  his  name  and  place  of  abode,  and  also  the  name  and  place  of  abode  of 
the  attorney  or  attorneys  to  whom  he  shall  have  been  articled."  And  there 
is  a  similar  rule  in  the  Common  Pleas,(6')  directing  the  notice  to  be  affixed 
on  the  outside  of  the  court,  in  such  places  as  public  notices  are  usually 
affixed  on,  and  to  be  left  at  each  of  the  judges  chambers  of  that  court,  and 
there  fixed  up  in  some  conspicuous  place,  and  that  such  notice  shall  like- 
wise be  fixed  up,  for  the  like  time,  in  the  Common  Pleas  office.  This  notice 
must  be  put  up  for  the  term  immediatelu  preceding  that  in  which  the  appli- 
cation is  made  for  admission. (c?)  And,  in  the  King's  Bench, 
where  an  *attorney's  clerk  has  served  part  of  his  time  with  one  [  "70  ] 
attorney,  and  part  with  another  to  whom  the  articles  were  assigned, 
the  name  of  the  assignee  must  be  inserted  in  the  notice  of  intention  to 
apply  for  admission. (a) 

Before  a  clerk  can  be  admitted  an  attorney  or  solicitor,  he  is  required  to 
cause  an  affidavit,  of  himself  or  the  attorney  or  solicitor  to  whom  he  was 
bound,  to  be  duly  made  and  filed  with  the  proper  officer  appointed  for  that 
purpose,  (being,  in  the  King's  Bench,  the  chief  clerk  or  his  deputy,  and,  in 
the  Common  Pleas,  the  clerk  of  the  warrants,)  that  he  hath  actually  and 
really  served,  and  been  employed  by  such  practising  attorney  or  attorneys, 
solicitor  or  solicitors,  to  whom  he  was  bound  as  aforesaid,  or  his  or  their 
agent  or  agents,  during  the  said  Avhole  term  of  five  years,  according  to  the 
true  intent  and  meaning  of  the  statute  22  Geo.  II.  c.  40,  §  10. (^/)  And,  in 
the  Common  Pleas,  it  is  a  rule,  that  "every  person  who  shall  be  admitted 
an  attorney  of  that  court,  not  being  already  an  attorney  of  the  King's  ]]cnch, 
or  a  solicitor  in  Chancery,  or  in  the  court  of  Exchequer,  shall,  before  he  is 
sworn,  file,  with  the  secondary,  his  articles  of  clerkship,  together  with  the 
affidavit  of  the  due  execution  thereof,  and  also  the  affidavit  of  the  due  ser- 
vice under  such  articles,  and  of  the  notice  having  been  given  pursuant  to  the 

{b)  R.  T.  31  Geo.  III.  K.  B.  4  Dnrnf.  &  East,  379.  R.  T.  33  Geo.  III.  K.  B.  5  Durnf.  & 
East,  3G8.  And  for  the  form  of  the  notice,  and  affidavit  tliereof,  see  Append.  Chap.  III.  §  4,  5. 

(r)  R.  T.  31  Geo.  III.  C.  P.,  and  see  N.  M.  2  Geo.  II.  2,  C.  P.  Append.  Chap.  III.  g  4.  2 
Marsh.  43,  [a). 

(d)  6  Taunt.  335.    2  Marsh.  48,  S.  C. 

[a)  1  Chit.  Rep.  556.  (6)  Append.  Chap.  III.  I  5,  G,  K.  B. 


7Q  or  THE  ADMISSION,  AND 

rule  of  Trin.  31  Geo.  III."(^')  ^^  affidavit  is  also  required  to  be  made  by 
the  person  to  be  admitted,  of  the  payment  of  the  duty  imposed  on  the  arti- 
cles or  contract  of  service ;  in  which  he  shall  insert  the  sum  paid  in  respect 
thereof,  and  shall  specify  the  name  and  place  of  abode  of  the  person  or  per- 
sons with  whom  such  contract  of  service  was  entered  into,  the  time  of  the 
execution  thereof,  and  the  time  of  enrolling  or  registering  the  same,  and,  in 
case. such  person  shall  have  been  previously  admitted  a  solicitor  or  attorney 
in  some  other  court,  shall  also  specify  in  such  affidavit  the  court  in  which  he 
has  been  so  admitted,  and  the  time  of  his  admission  therein  \{d)  and  shall 
cause  the  same  to  be  duly  filed  in  the  court  in  which  he  proposes  to  be  so 
admitted  a  solicitor  or  attorney,  with  the  proper  officer  appointed  for 
receiving  and  filing  such  affidavits ;  and  every  such  affidavit  shall  be  pro- 
duced, and  openly  read  in  the  court  in  which  such  person  shall  be  admitted 
a  solicitor  or  attorney,  before  he  shall  be  enrolled  or  registered  therein. (c^) 
The  oath  (or  affirmation,  if  by  a  Quaker,)  required  to  be  taken  before 
admittance,  is  that  the  person  to  be  admitted  will  truly  and  honestly  demean 
himself,  in  the  practice  of  an  attorney,  according  to  the  best  of  his  know- 
ledge and  ability :(/)  besides  which,  he  has  taken  the  oaths  of  allegiance 

and  supremacy,  and  to  subscribe  the  declaration  against  popery  •,{g) 
[  *71  ]  *or,  if  a  Roman  Catliolic,  the  declaration  and  oath  prescribed  by 

the  statute  31  Geo.  III.  c.  32,  §  l.(«)  But  the  judges  of  the  court, 
or  one  or  more  of  them,  before  they  admit  any  person  to  take  the  said  oath 
or  affirmation,  are  to  examine  and  inquire,  by  such  ways  and  means  as  they 
shall  think  proper,  touching  his  fitness  and  capacity  to  act  as  an  attorney, 
and  if  such  judge  or  judges  respectively  shall  be  thereby  satisfied,  that  such 
person  is  duly  qualified  to  be  admitted  to  act  as  an  attorney,  then,  and  not 
otherwise,  the  said  judge  or  judges  are  to  administer  in  open  court  to  such 
person,  the  said  oath  or  affirmation ;  and  after  such  oath  or  affirmation  to 
cause  him  to  be  admitted  an  attorney,  and  his  name  to  be  enrolled  as  an 
attorney  in  such  court,  without  any  fee  or  reward,  other  than  one  shilling 
for  administering  the  oath  or  affirmation ;  which  admission  shall  be  written 
on  parchment,  in  the  English  tongue,  in  a  common  legible  hand,  and  signed 
by  such  judge  or  judges  respectively,  whereon  the  lawful  stamps  shall  be 
first  impressed,  and  shall  be  delivered  to  the  person  so  admitted. (66)  The 
stamp  duty  on  admission,  by  the  last  general  stamp  act,(c)  amounts  to 
twenty-jive  pounds,  unless  the  person  has  been  before  admitted  an  attorney, 
in  one  of  the  courts  mentioned  in  the  statute  2  Geo.  IL  c.  23,  §  b.{d)  And 
the  chief  clerk  or  his  deputy  in  the  King's  Bench,  and  clerk  of  the  warrants 
or  his  deputy  in  the  Common  Pleas,  are  required,  without  fee  or  reward,  to 
enroll,  the  name  of  every  person  who  shall  be  admitted  an  attorney,  therein, 

(c)  R.  T.  37  Geo.  III.  C.  P.    1  Bos.  &  Pul.  90.    Append.  Chap.  III.  g  7,  8. 

\d)  Append.  Chap.  III.  ?  9,  10.  (e)  34  Geo.  III.  c.  14,  I  3. 

(/)  2  Geo.  II.  c.  23,  §  13.  12  Geo.  II.  c.  13,  %  8.  Append.  Chap.  III.  §  11.  And  for  the 
form  of  the  oath  anciently  taken,  on  the  admission  of  attorneys  in  the  Common  Pleas,  see 
R.  M.  1654,  I  26,  C.  P. 

(^)  7  &  8  W.  III.  c.  24.  13  W.  III.  c.  6,  §  3.  These  oaths  may  be  taken,  and  the  declara- 
tion subscribed,  in  the  King's  Bench,  before  a  single  judge,  in  tlie  bail  court,  by  stat.  1  Geo. 
IV.  c.  55,  I  4. 

(a)  For  the  form  of  a  rule  of  court,  for  the  admission  of  an  attorney  on  this  statute,  see 
Append.  Chap.  III.  I,  12.  And,  for  the  disabilities  of  jRomfm  Cff//io?i'c5,  and  the  statutes  which 
have  been  passed  for  their  relief,  &c.,  see  a  very  learned  and  elaborate  note  by  Mr.  Butler, 
in  his  valuable  edition  of  Co.  Lit.  p.  391,  (a).  {hh)  2  Geo.  II.  c.  23,  |  6. 

{c)  55  Geo.  III.  c.  184,  Sched.  Part  I.  And  for  the  former  duty,  see  the  statutes'  44  Geo. 
III.  c.  98,  Sched.  A.    48  Geo.  III.  c.  149,  Sched.  Part  I.  {d)  Ante,  61. 


ENROLMENT  OF  ATTORNEYS.  71 

and  the  time  when  admitted,  in  an  alphabetical  order,  in  rolls  or  books  to  be 
provided  and  kept  for  that  purpose  in  their  respective  offices ;  to  which  rolls 
or  books  all  persons  may  have  free  access,  without  fee  or  reward. (e;)  An- 
ciently it  appears  there  Avere  rolls  kept  of  the  attorneys,  in  the  King's  Bench ; 
but  after  the  stamp  acts,  that  method  was  disused,  and  books  kept  in  lieu  of 
them.(/)  These  books  were  considered  in  one  case,(/)  merely  as  minutes 
to  make  up  the  record,  and  a  warrant  to  the  officer  for  that  purpose :  But 
from  the  evidence  given  in  a  subsei^uent  case,((/)  it  appears  that  when  an 
attorney  is  admitted,  and  takes  the  oaths,  he  subscribes  a  roll,  which  is 
the  original  roll  of  attorneys  ;  whence  the  names  are  copied  into  the  above 
books.  The  record  of  admission  is  of  so  high  an  authority,  that  if  an 
exemplification  of  it  be  annexed  to  a  plea  of  privilege,  the  plaintiff  must 
reply  nul  tiel  record,  and  cannot  otherwise  try  the  fact  of  the  defendant's 
being  an  attorney.(/i) 

The  habitations,  however,  of  many  attorneys  practising  in  the  court  of 
King's  Bench,  resident  in  and  near  the  cities  of  London  and 
Westminster,  *being  often  very  difficult  to  be  found,  whereby  it  [  *72  ] 
was  impracticable  duly  to  serve  them  with  notices,  summonses, 
orders  and  rules,  to  the  great  delay  of  the  proceedings,  a  rule  was  made 
in  this  court, (a)  that  the  master  should  forthwith  cause  to  be  prepared  a 
proper  alphabetical  book,  for  the  purposes  after  mentioned  ;  and  that  the 
same  should  be  publicly  kept  at  the  master's  office  in  the  King's  Bench 
walk,  to  be  there  inspected  by  any  attorney  or  his  clerk,  without  fee  or 
reward  ;  and  that  every  attorney  practising  in  this  court,  and  residing  in 
London  dindi  Westminster,  or  within  ten  miles  of  the  same,  should  before 
the  first  day  of  the  then  next  term,  enter  in  such  beok,  in  alphabetical 
order,  his  name  and  place  of  abode,  or  some  other  proper  place,  within 
the  cities  of  London  and  Westminster,  where  he  might  be  served  with  such 
notices,  summonses,  orders  and  rules;  and  it  is  thereby  required,  that 
"  every  attorney  afterwards  to  be  admitted,  and  practising  and  residing 
as  aforesaid,  shall,  upon  his  admission,  make  the  like  entry ;  and  that  as 
often  as  any  such  attorney  shall  change  his  place  of  abode,  or  the  place 
where  he  may  be  so  served  with  notices,  summonses,  orders  and  rules,  he 
shall  make  the  like  entry  thereof,  in  the  said  book ;  and  that  all  notices, 
smmonses,  orders  and  rules,  which  do  not  require  a  personal  service,  shall 
be  deemed  sufficiently  served  on  such  attorney,  if  a  copy  thereof  shall  be 
left  at  the  place  lastly  entered  in  such  book,  with  any  person  resident  at 
or  belonging  to  such  place ;  and  if  any  such  attorney  shall  neglect  to 
make  such  entry,  that  then  the  fixing  up  of  any  notice,  or  the  copy  of  any 
summons,  order  or  rule,  for  such  attorney,  in  the  said  master's  office, 
shall  be  deemed  a  sufficient  service,  unless  the  matter  bo  such  as  shall 
require  a  personal  service."  In  conformity  to  this  rule,  it  is  usual  for 
practitioners,  who  live  remote  from  the  inns  of  court  or  chancery,  to  add 
to  the  place  of  their  abode,  the  name  and  place  of  abode  of  some  other 
person,  where  and  with  whom  notices,  summonses,  orders,  rules  and  other 
proceedings  that  do  not  require  personal  service,  may  be  left  for  them, 
near  to  such  inns  :{b)  But  when  the  name  and  place  of  abode  of  the 
attorney  are  entered,  then  service  at  that  place  is  the  proper  service. (c) 

(c)  2  Geo.  II.  c.  23,  §  18.  ( /•)  1  Str.  76,  7.                         (.7)  2  Esp.  Rep.  526. 

(h)  1  Ld.  Raym.  336.    7  Mod.  106.  2  Salk.  545.    6  .Mod.  305.    2  Ld.  Raym.  1172.    1  Str. 

76,  532.  (a)  R-  H.  3  Geo.  III.  K.  H. 

(6)  Imp.  K.  B.  10  Ed.  33.  (c)  LoiTt,  357. 

Vol.  I.— 6 


72  OF  THE  ADMISSION,  AND 

An  attorney,  s-worn  admitted  and  enrolled  in  any  of  the  courts  of  law, 
mentioned  in  the  statute  2  Geo.  11.  c.  23,(f7)  may  be  sworn  admitted  and 
enrolled  a  solicitor,  in  all  or  any  of  the  courts  of  equity  therein  men- 
tioncd,(g)  without  any  fee  for  the  oath,  or  stamp  on  the  parchment  whereon 
such  admission   shall   be    written  :(/)     And   an  attorney  in   any  of  his 
majesty's  courts  of  record  at  Westminster,  is  capable  of  being  admitted  to 
practise  as  an  attorney  in  any  inferior  court  of  record,  provided  he  be  in 
all  other  respects  capable  and  qualified  to  be  admitted  an  attorney,  accord- 
ing to  the  usage  and  custom  of  such  inferior  court. (^)     So,  a  solicitor  in 
any  of  his  majesty's  courts  of  equity  at  Westminster,  may  be 
[  *73  ]    sworn  admitted  and  *enrolled  an  attorney  of  his  majesty's  court 
of  King's  Bench  or  Common  Pleas  at  Westminster. {a)    And  a 
solicitor  in  any  of  the  courts  of  equity  mentioned  in  the  statute  2  Geo. 
II.  c.  23,  may  be  sworn  admitted  and  enrolled  a  solicitor  in  all  or  any  of 
the  other  courts  of  equity,  or  in  any  inferior  court  of  equiety.(55)     An 
admitted  attorney  of  the  court  of  King's  Bench  may  sue  out  a  commission 
of  bankrupt,  and  maintain  an  action  for  his  fees  and  disbursements  thereon, 
although  he  be  not  a  solicitor  in  Chancery.((?c)     But  a  solicitor  on  the 
equity  side  of  the  court  of  Exchequer,  is  not  entitled,  as  such,  to  practise 
in  the  Court  of  Chancery ;  nor,  if  he  do,  can  he  maintain  an  action  for 
the  amount  of  his  bill  :{dd)     And  it  seems,  that  a  solicitor  of  the  latter 
court  cannot,  by  consent  in  writing,  authorize  a  solicitor  of  the  court  of 
Exchequer  to  practise  there  in  his  name.(eg) 

It  is  also  declared  to  be  lawful,  for  any  person  who  shall  be  sworn  ad- 
mitted and  enrolled  to  be  an  attorney,  in  any  of  his  majesty's  courts  of  record 
at  Westminster,  &c.  by  and  with  the  consent  and  permission  of  any  attor- 
ney, in  any  of  the  said  other  courts  of  record,  &c.  such  consent  being  in 
writing,  signed  by  such  attorney,  and  in  the  name  of  such  attorney,  to  sue 
out  any  writ  or  process,  or  to  commence,  carry  on,  prosecute  or  defend  any 
action  or  actions,  or  any  other  proceedings  in  such  court,  notwithstanding 
such  person  is  not  sworn  or  admitted  to  be  an  attorney  of  such  court.(^) 
And  where  an  attorney  acts  in  the  name  of  another,  a  demand  of  costs  by 
the  acting  attorney  is  good.(^(/)  But  where  an  attorney's  name  had  been  set 
to  process  without  his  authority,  the  court  ordered  the  proceedings  to  be 
set  aside,  and  granted  an  attachment  against  the  plaintiif's  attorney.(7i)  So, 
where  process  in  the  Common  Pleas  appeared  to  have  been  sued  out  in  the 
name  of  A.  by  B.,  neither  of  whom  were  attorneys  of  this  court,  and  B.  had 
no  authority  from  any  other  attorney  to  act  in  his  name,  the  court  set  aside 
the  proceedings,  and  ordered  A.  and  B.  to  pay  the  costs,  (z)  And  where 
judgment  was  entered  up  by  an  attorney's  clerk,  in  the  name,  but  without 
the  knowledge  or  consent  of  a  regular  attorney,  it  was  ordered  to  be  set 
aside.  (A;) 

By  the  statute  2  Geo.  II.  c.  23,  §  17,  "  if  any  person,  who  shall  be  a  sworn 
attorney  of  any  of  the  courts  of  law  aforesaid,  shall  knowingly  and  willingly 
permit  or  suffer  any  other  person  or  persons  to  sue  out  any  writ  or  process, 

^d)  §  1.  (,)  ^  3. 

(/)  I  20,  and  see  stat.  34  Geo.  III.  c.  14,  §  5.  44  Geo.  III.  c.  98,  Sched.  A.  48  Geo.  III.  c. 
149,  Sched.  Part  I.,  and  55  Geo.  III.  c.  184,  Sched.  Part  I.  (g)  6  Geo.  II.  c.  27,  §  2. 

(ff)  23  Geo.  II.  c.  26,  §  15.  (66)  2  Geo.  II.  c.  23,  ^  21. 

{cc)  1  Barn.  &  Cres.  158.    2  Dowl.  &  Ryl.  302,  S.  C. 

(dd)  4  Taunt.  452,  but  see  1  H.  Blac.  50,  semb.  contra.  {ee)  4  Taunt.  452. 

iff)  2  Geo.  II.  c.  23,  §  10.  [gg)  Say.  Rep.  95.  (A)  1  Bur.  20. 

(i)  4  Moore,  603.  i^)  5  Bur.  2660. 


ENROLMENT  OF  ATTORNEYS.  73 

or  to  commence,  prosecute,  follow,  or  defend  any  action  or  actions,  or  other 
proceedings,  in  his  name,  not  being  a  sworn  attorney  of  one  of  the  said  other 
courts  of  law,  or  a  sworn  solicitor  of  the  court  of  Chancery,  or  other 
court  of  equity,  and  shall  be  thereof  lawfully  convicted,  every  person  so 
convicted  shall,  from  the  time  of  such  conviction,  be  disabled  and  made  in- 
capable to  act  as  an  attorney  in  any  of  the  courts  of  laAv  aforesaid ; 
and  the  admittance  of  such  person  •to  be  an  attorney  of  any  of  the  [  *74  ] 
said  courts  of  law,  shall  from  thenceforth  cease  and  be  void." 
And,  by  a  subsequent  act,(«)  "  if  any  sworn  attorney  or  solicitor  shall  act  as 
agent  for  any  person  or  persons  not  duly  qualified  to  act  as  an  attorney  or 
solicitor,  or  permit  or  suffer  his  name  to  be  any  ways  made  use  of,  upon  the 
account  or  for  the  profit  of  any  tinqualified  person  or  persons,  or  send  any 
process  to  such  unqualified  person  or  persons,  thereby  to  enable  him  or 
them  to  appear,  act,  or  practise  in  any  respect  as  an  attorney  or  solicitor, 
knowing  him  not  to  be  duly  qualified  as  aforesaid,  and  complaint  shall  be 
made  thereof  in  a  summary  way,  to  the  court  from  whence  any  such  pro- 
cess did  issue,  and  proof  made  thereof  upon  oath,  to  the  satisfaction  of  the 
court,  that  such  sworn  attorney  or  solicitor  hath  offended  therein  as  afore- 
said, then  every  such  attorney  or  solicitor  so  offending  shall  be  struck  off 
the  roll,  and  for  ever  after  disabled  from  practising  as  an  attorney  or  solici- 
tor ;  and  in  that  case,  and  upon  such  complaint  and  proof  made  as  aforesaid, 
it  shall  and  may  be  lawful  to  and  for  the  said  court  to  commit  such  unquali- 
fied person,  so  acting  and  practising  as  aforesaid,  to  the  prison  of  the  said 
court,  for  any  time  not  exceeding  one  year." 

The  courts,  in  several  recent  instances,  have  proceeded  on  this  statute,  by 
ordering  attorneys,  who  have  acted  as  agents  for,  or  suffered  their  names  to 
be  made  use  of,  upon  the  account  or  for  the  profit  of  unqualified  persons,  to 
be  struck  off  the  roll ;  and  the  unqualified  persons  to  be  committed  to  pri- 
8on.(6)  And  where  a  bailiff  had  written  to  an  attorney  for  writs  which  the 
latter  sent  without  knowing  anything  of  the  parties  or  circumstances ;  but 
the  bailiff  had  never  represented  himself,  or  been  considered  as  an  attorney, 
nor  looked  for  any  profit  upon  the  law  proceedings ;  the  court  of  King's 
Bench  held,  that  though  this  was  not  a  case  within  the  statute,  yet  that  it 
was  a  most  improper  practice,  which  the  court,  in  virtue  of  its  general  juris- 
diction over  attorneys,  would  punish  severely,  (c)  But  the  court  of  Common 
Pleas  refused  to  strike  an  attorney  off  the  roll,  on  an  aflidavit  which  stated, 
that  the  person  who  had  lately  been  his  clerk,  and  who  lived  at  a  town  eight 
miles  distant  from  the  residence  of  the  attorney,  and  carried  on  business  at 
an  office,  over  the  door  of  which  was  written  the  attorney's  name,  but  that 
he  only  attended  on  market  days,  and  then  transacted  all  his  business  at  an 
inn ;  on  the  ground  that  it  should  have  been  shown  that  such  person  either 
participated  in  the  profits,  or  carried  on  business  on  his  own  account. (tZ)  In 
proceeding  against  an  unqualified  person,  for  practising  in  the  name  of  an 
attorney,  contrary  to  the  provisions  of  this  statute,  the  party  is  not 
entitled  to  have  the  "witnesses  in  support  of  the  charge  examined  [  *75  ] 

[a)  22  Geo.  II.  c.  46,  ?  11.  See  also  the  statute  3  Jac.  I.  c.  7,  §  2,  and  R.  M.  1654,  g  1, 
K.  B.,  by  which  rule,  attorneys  dismissed  by  one  court  from  their  practice  for  misdemeanors, 
are  not,  after  certificate,  to  be  admitted  to  practise  in  another  court,  it  being  contrary  to  the 
intent  of  the  law  :  And  see  R.  M.  6  &  7  Eliz.  §  4.  R.  M.  15  EHz.  §  8.  R.  T.  24  Eliz.  J  6 
R.  M.  1654,  §  1.    R.  H.  14  &  15  Car.  II.  reg.  2,  C.  P. 

{h)  2  Dowl.  &  Ryl.  64.  1  Barn.  &  Cres.  270.  3  Dowl.  &  Ryl.  263,  [a),  S.  C.  Id.  260.  8 
Moore,  214,  322.     1  Bing.  272,  S.  C,  and  see  5  Barn.  &  Cres.  108.    7  Dowl.  &  Ryl.  548,  S.  C. 

(c)  5  Barn.  &  Aid.  824*.  {d)  9  Moore,  157.     2  Bing.  74,  S.  C. 


Y5  OF  TUE  CERTIFICATES  OF  ATTORNEYS. 

vivd  voce;  but  after  the  matter  had  been  referred,  by  consent  of 
counsel  to  the  master  of  the  crown  office,  who  reported  the  party  in  con- 
tempt, the  court  of  King's  Bench  allowed  him  to  bring  the  whole  of  the 
case  under  their  own  consideration,  when  brought  up  to  be  committed. (a) 
And,  in  the  Common  Pleas,  after  the  court  had  ordered  the  parties  to  be  at- 
tached, and  give  bail  to  answer  interrogatories  before  the  prothonotary,  who 
reported  them  to  be  in  contempt,  for  not  having  satisfactorily  answered  the 
interrogatories  put  to  them ;  such  report  was  holden  not  to  be  conclusive  on 
the  parties,  but  that  they  might  take  exceptions  to  any  specific  or  material 
parts  of  it. (5)  And  where,  after  the  prothonotary  had  made  his  report,  it 
appeared  that  certain  books  of  account  had  not  been  laid  before  him,  which 
tended  to  support  the  answers  given  by  one  of  the  parties  ;  the  court  ordered 
the  prothonotary  to  inspect  them,  but  would  not  allow  a  clerk  who  had 
made  the  entries  therein,  to  be  examined  by  the  prothonotary,  on  an  appli- 
cation made  by  the  prosecutor  for  that  purpose. (5) 

It  will  next  be  proper  to  consider  the,  cei'tificates  of  attorneys,  which  were 
first  required  by  the  statute  25  Geo.  III.  c.  80.  And,  by  a  subsequent  sta- 
tute,(c)  "  every  person  admitted,  sworn  and  enrolled  a  solicitor  or  attorney, 
&c.  in  any  of  his  majesty's  courts  at  Westminster,  &c.  or  in  any  other  court 
in  England,  holding  place  where  the  debt  or  damage  shall  amount  io  forty 
shillings  or  more,  shall  annually,  between  the  first  day  of  November  and 
the  end  of  3Iichaelmas  term  then  next  following,  during  such  time  as  he 
shall  continue  so  to  practise  in  any  of  the  said  courts,  or  before  such  person 
shall  commence,  carry  on  or  defend  any  action  or  suit,  or  any  proceedings 
whatsoever,  in  any  of  the  said  courts,  deliver  in  to  the  commissioners  of  the 
stamp  duties,  or  to  their  officer  appointed  for  that  purpose,  at  the  head  office 
of  stamps  in  3Ilddlesex,  a  paper  or  note  in  writing,  containing  the  name  and 
usual  place  of  residence  of  such  person  :  and  thereupon,  and  upon  payment 
of  the  duties,  according  to  the  place  of  his  residence,  every  such  person  shall 
be  entitled  to  a  certifioate,  duly  stamped,  to  denote  the  payment  of  the  said 
duties ;  which  certificate  the  said  commiisioners  shall  cause  to  be  immedi- 
ately issued,  under  the  hand  and  name  of  the  proper  officer,  in  such  form  as 
they  shall  devise."  The  period  fixed  for  attorneys,  &c.  to  take  out  their 
annual  certificates,  and  pay  the  stamp  duty  thereon,  was  altered  by  the  sta- 
tute 54  Geo.  III.  c.  144,(J5)  by  which  it  is  enacted,  that  "  all  attorneys,  &c. 
who  by  the  laws  in  force  would  be  bound  to  take  out  stamped  certificates, 
and  pay  the  duty  thereon,  at  the  head  office  of  stamps  m  Middlesex,  annually, 
between  the  first  day  of  November  and  the  end  of  Michaelmas  term  fol- 
lowing, shall  in  future  take  out  such  certificates,  and  pay  the  duty  thereon, 
and  do  all  other  acts  necessary  for  that  purpose,  annually,  between  the 
fifteenth  day  of  November  and  the  sixteenth  day  of  December  in  each 
year;  and  in  default  thereof  shall  be  subject  and  liable  to  such  and 
[  *TG  ]  the  same  penalties,  forfeitures  *and  disqualifications,  as  they  would 
have  been,  under  the  laws  then  in  force,  for  not  taking  out  such 
certificates,  within  the  period  first  above  mentioned :  And  that  all  certifi- 
cates, which  shall  be  taken  out  between  the  fifteenth  day  of  November  and 
the  sixteenth  day  of  December  in  any  year,  by  attorneys,  &c.,  thereby 
required  to  take  out  the  same  within  that  period,  shall  be  dated  on  the  six- 
teenth day  of  November  ;  and  all  certificates  which  shall  be  taken  out  by 
any  such  persons  at  any  other  time,  shall  be  dated  on  the  day  on  which 

{a)  2  Dowl.  &  Ryl.  64.  {I)  8  Moore,  214.  1  Bing.  272,  S.  C.  ^ 

(c)  37  Geo.  III.  c.  90,  g  26,  28.  [dd]  §  13,  14.       ' 


OF  THE  CERTIFICATES  OF  ATTORNEYS.  7(5 

the  same  shall  be  granted ;  and  all  such  certificates  respectively  shall  have 
effect  and  continue  in  force  from  the  day  of  the  date  hereof,  until  the  fif- 
teenth day  of  November  following,  both  inclusive,  and  no  longer."  But 
an  attorney  may  sue  by  attachment  of  privilege,  though  his  certificate  has 
expired,  and  not  been  renewed,  if  the  writ  be  sued  out  within  a  year  trom 
the  expiration  of  his  certificate. (a) 

The  duties  now  payable  for  certificates,  under  the  last  general  stamp 
act,(6)  are  tivelve  pounds  yearly,  by  every  person  admitted  as  an  attorney 
or  solicitor,  in  any  of  his  majesty's  courts  at  Westminster,  &c.,  if  he  shall 
reside  in  the  city  of  London  or  Westminster,  or  within  the  limits  of  the 
two-penny  post  in  England,  or  within  the  city  or  shire  of  Edinhurrfh,  and 
shall  have  been  admitted,  or  in  possession  of  his  office,  for  the  space  of  three 
years  or  upwards  ;  or  if  he  shall  not  have  been  admitted  or  in  possession  so 
long,  six  pounds :  and  if  he  shall  reside  elseivhere,  and  have  been  admitted 
or  in  possession  of  his  office,  for  the  space  of  three  years  or  upwards,  eight 
pounds ;  or  if  he  shall  not  have  been  admitted  or  in  possession  so  long, 
four  pounds. 

And,  by  the  37  Geo.  III.  c.  90,((7)  "  every  certificate  so  to  be  obtained 
as  therein  mentioned,  shall  be  entered  in  one  of  the  courts  in  which  the 
person  described  therein  shall  be  admitted  and  enrolled,  with  the  respec- 
tive officer  or  officers  of  the  said  courts,  appointed  by  the  25  Geo.  III.  c. 
80,  to  grant  certificates  of  enrolment  or  admission,  within  the  time  therein 
before  prescribed,  or  before  such  person  shall  be  permitted  to  practise  as 
aforesaid ;  and  the  said  respective  officers  shall  from  time  to  time,  upon 
payment  of  the  fee  of  one  shilling,  enter,  in  alphabetical  order,  the  names 
of  the  persons  described  in  such  respective  certificates,  together  with  the 
places  of  such  their  residence  as  aforesaid,  and  the  respective  dates  of 
such  certificates,  in  books  or  rolls  to  be  prepared  for  that  purpose  ;  to 
which  books  or  rolls,  in  the  said  courts  respectively,  all  persons  shall 
and  may  at  seasonable  times  have  free  access,  without  fee  or  reward." 

By  the  same  statute,((^)  "if  any  person  shall,  in  his  own  name,  or  in 
the  name  of  any  other  person  or  persons,  sue  out  any  writ  or  process,  or 
commence,  prosecute,  carry  on  or  defend  any  action  or  suit,  or  any  pro- 
ceedings, in  any  of  the  courts  aforesaid,  for  or  in  expectation  of 
any  gain,  *fee  or  reward,  or  shall  do  any  act  in  any  of  the  said  [  *77  ] 
courts,  as  an  attorney  of  such  court,  without  obtaining  a  certifi- 
cate in  the  manner  before  directed,  or  without  entering  the  same  in  one 
of  the  courts  aforesaid,  wherein  such  person  shall  be  admitted  or  enrolled 
as  an  attorney,  &c. ;  or  shall  deliver  in  to  any  person,  at  tho  said  head 
office,  any  account,  containing  a  place  of  residence,  as  the  place  of  his 
residence,  contrary  to  the  directions  of  the  said  act  of  the  2oth  year  of 
the  reign  of  his  late  majesty,  with  intent  to  evade  the  payment  of  the 
higher  duties,  every  such  person  shall,  for  every  such  offence,  forfeit  and 
pay  the  sum  of  fifty  pounds ;  and  shall  be  made  incapable  to  maintain  or 
prosecute  any  action  or  suit,  in  any  court  of  law  or  equity,  for  the  reco- 
vering of  his  fees,  &c."  But  it  is  no  ground  of  objection  to  bail,(rta)  nor 
for  cancelling  a  bail  bond,(6)  or  setting  aside  proceedings,  that  the  attor- 

(a)  2  Maule  k  Sel.  605.    5  Manle  &  Sel.  281. 

(6)  55  Geo.  III.  c.  184,  Sche.d.  Part  I.    Aud,  for  the  former  duties,  see  the  statutes  44  Geo. 
III.  c.  98,  Sched.  A.    48  Geo.  III.  c.  140,  Sched.  Part  I. 
(c)  I  27.  [d)  §  30.  {aa)  2  Chit.  Rep.  98. 

{b)  1  Dowl.  &Ryl.  215. 


'jj  OF  THE  CERTIFICATES  OF  ATTORNEYS. 

ney  by  whom  the  bail  was  put  in,  or  who  sued  out  the  writ,  had  neglected 
to  take  out  his  certificate:  and  the  circumstance  of  the  plaintiff's  cause 
havintr  been  conducted  by  an  attorney,  who  has  not  obtained  his  certifi- 
cate, does  not  deprive  the  plaintiff  of  his  right  to  full  costs  against  the 
defendant.(c) 

Also,  by  the  statute  44  Geo.  III.  c.  98,  §  14,  "every  person  who  shall, 
for  or  in  expectation  of  any  fee,  gain  or  reward,  directly  or  indirectly, 
draw  or  prepare  any  conveyance  of,  or  deed  relating  to,  any  real  or  per- 
sonal estate,  or  any  proceedings  in  law  or  equity,  other  than  and  except 
Serjeants  at  law,  barristers,  solicitors,  attorneys,  notaries,  proctors,  agents 
or  procurators,  having  obtained  regular  certificates,  and  special  pleaders, 
draftsmen  in  equity,  and  conveyancers,  being  members  of  one  of  the  four 
inns  of  court,  and  having  taken  out  the  certificates  mentioned  in  the  sche- 
dule to  that  act  annexed,  and  other  than  and  except  persons  solely  employed 
to  engross  any  deed,  instrument,  or  other  proceedings,  not  drawn  or  prepared 
by  themselves,  and  for  their  own  account  respectively,  and  other  than  and 
except  public  officers,  drawing  or  preparing  oflicial  instruments,  applicable 
to  their  respectire  ofiices,  and  in  the  course  of  their  duty,  shall  forfeit  and 
pay  for  every  such  offence,  the  sum  o^ fifty  pounds :  Provided  always,  that 
nothing  therein  contained  shall  extend,  or  be  construed  to  extend,  to  pre- 
vent any  person  or  persons  drawing  or  preparing  any  will  or  other  testa- 
mentary papers,  or  any  agreement  not  under  seal,  or  any  letter  of  attor- 
ney." The  certificates  required  by  the  above  statute  are  subject,  by  the 
last  general  stamp  act,(iZ)  to  the  duty  of  12/.  if  the  party  reside  in  the 
city  of  London  or  Westmiiiste?;  or  within  the  limits  of  the  two-penny  post 
in  England^  or  8?.  if  he  shall  reside  elsewhere:  But,  under  the  latter  act, 
such  persons  only  are  qualified  to  practise,  as  are  members  of  one  of  the 
four  inns  of  court,  &c.(e)  A  certificated  conveyancer  may  maintain  an 
action  for  his  fees.(/) 

An  attorney  is  liable  to  penalties,  for  practising  without  obtaining  or 

entering  his  certificate,  according  to  the  provisions  of  the  statute 
[  *78  ]    37  Geo.  *III.  c.  90,  §  26,  30,  though  no  power  to  sue  is  expressly 

given  by  that  statute ;  for  the  25  Geo.  III.  c.  80,  §  29,  which  gives 
that  power,  and  the  37  Geo.  III.  c.  90,  are  in  jyari  materid.[aa)  And  if  an 
attorney  be  in  partnership  with  another,  and  they  carry  on  their  business 
together,  and  their  joint  names  are  put  on  their  papers  in  causes  in  their 
ofiice,  either  of  them  is  liable  to  the  penalties  of  the  last  mentioned  act,  for 
practising  as  an  attorney,  without  entering  his  certificate ;  though  it  do  not 
appear  that  one  of  them  had  any  profit  or  advantage  from  the  suit  for  which 
the  qui  tarn  action  is  brought.(6i)  The  consequence  is,  and  it  has  been 
accordingly  determined,  that  two  attorneys  or  proctors  cannot  be  sued  toge- 
ther, as  for  one  offence,  in  practising  without  having  obtained  and  entered 
their  certificate. (c(?)  It  has  likewise  been  determined,  that  the  certificate 
act  does  not  extend  to  the  county  court,  though  an  attorney  prosecute  a 
suit  there,  by  virtue  of  a  writ  oi  justicies,  for  more  than  40s.((:?5)  But,  by 
the  statute  44  Geo.  III.  c.  98,  §  10,  the  penalties  incurred  by  virtue  of  that 

(c)  3  Bing.  9.    10  Moore,  261,  S.  C. 

{(l)  55  Geo.  III.  c.  184,  Sched.  Part  I.  {e)  Holt.  Ni.  Pri.  528. 

(/)  3  Barn.  &  Ores.  744.    5  Dowl.  &  Ryl.  648,  S.  C.     6  Dowl.  &  Pvjl.  4,  S.  P. 

(aa)  3  Bos.  &  Pul.  386.     1  New  Rep.  C.  P.  245,  S.  P.     2  East,  5C9,  contra. 

(bh)  4  Esp.  Rep.  14.  (cc)  1  New  Rep.  C.  P.  245.    2  East,  569,  contra. 

(dd)  6  Durnf.  &  East,  663. 


OF  THE  RE-ADMISSION  OF  ATTORNEYS.  78 

or  any  other  act  of  parliament,  relating  to  tlie  stamp  duties,  can  only  be 
recovered  in  the  name  of  the  attorney  general.  And  acts  of  indemnity  are 
occasionally  passed,  to  relieve  attorneys  who  have  neglected  to  take  out 
their  certificates  in  due  time.(c') 

As  a  further  inducement  for  attorneys  to  take  out  their  certificates,  it  is 
enacted,  by  the  statute  o7  Geo.  III.  c.  *.'0,(/)  that  "  every  person  admitted, 
sworn  and  enrolled  in  any  of  the  courts  therein  mentioned,  who  shall  neglect 
to  obtain  his  certificate  thereof,  in  the  manner  before  directed,  for  the 
space  of  one  whole  year,  shall  from  thenceforth  be  incapable  of  practisin"- 
in  his  own  name,  or  in  the  name  of  any  other  person,  in  any  of  the  said 
courts,  by  virtue  of  such  admission,  enti-y  and  enrolment  of  such  person, 
in  any  of  the  said  courts,  shall  from  thenceforth  be  null  and  void.  Pro- 
vided always,  that  nothing  therein  before  contained  shall  be  construed  to 
prevent  any  of  the  said  courts  from  re-admitting  any  such  person,  on 
payment  to  the  commissioners,  of  the  duty  accrued  since  the  expiration  of 
the  last  certificate  obtained  by  such  person,  and  such  further  sum  of  money, 
by  way  of  penalty,  as  the  said  court  shall  think  fit  to  order  and  direct. "(^) 
On  the  above  statute,  it  has  been  holden,  in  the  Common  Pleas,  that  where 
a  person  is  admitted  an  attorney,  and  omits  to  take  out  his  certificate 
■within  the  year,  he  must  be  re-admitted  before  he  can  practise,  thouf^h  he 
should  never  have  practised  on  his  former  admission. (7i)  And,  in  the 
King's  Bench,  where  an  attorney  has  discontinued  practice,  after  the 
expiration  of  his  certificate,  though  in  consequence  of  pecuniary  difliculties 
and  *illness,(a)  or  of  absence  abroad,(?»)  a  term's  notice  must  be 
stuck  up,  and  entered  at  the  judges'  chambers,  for  the  purpose  [  *79  1 
of  re-admitting  him,  in  like  manner  as  upon  original  admission. (c) 
But  where  an  attorney  continued  to  practise,  after  the  expiration  of  his 
certificate,  through  the  inadvertence  or  misconduct  of  his  agent  or  clerk, 
in  neglecting  to  get  it  renewed,  the  court,  on  an  afiidavit  of  the  circum- 
stances, will  re-admit  him,  without  giving  a  term's  notice.(t'Z)  And  where 
the  certificate  of  an  attorney  of  the  Common  Pleas,  has  been,  througli  the 
mistake  of  his  agent,  filed  in  the  King's  Bench,  where  he  was  not  admitted, 
for  four  successive  years,  such  certificate  was  allowed  to  be  entered  and 
filed  in  the  Common  Pleas,  on  notice  of  the  application  being  given  to  the 
stamp  ofiice.((3e)  Where  a  tenn's  notice  was  necessary,  and  the  party 
intending  to  apply  to  be  re-admitted  on  the  roll,  aflfixed  his  notice  outside 
the  court  of  King's  Bencli,  in  the  morning,  before  the  sitting  of  the  court, 
on  the  first  day  of  the  term  of  which  the  notice  was  intended  to  be  given, 
this  was  holden  to  be  a  sufficient  compliance  with  the  rule.(^) 

In  the  King's  Bench,  it  is  a  rule,  that  where  an  agent  employed  to  take 
out  an  attorney's  annual  certificate,  has  neglected  to  do  so,  and  the  attor- 
ney has  from  ignorance  of  the  fact  continued  to  practise,  the  court  will 
only  allow  him  to  be  re-admitted,  upon  payment  of  a  fine,  with  the  arrears 

(c)  See  Stat.  1  Geo.  IV.  c.  44,  3  3,  and  other  statutes  referred  to,  ante,  C4,  5,  (h). 

if)  f  31. 

{[/)  For  the  evidence,  in  an  action  by  an  attorney  for  his  fees,  as  to  his  not  having  been 
re-admitted,  after  neglecting  to  take  out  his  certificate,  see  5  Barn.  &  Cres.  38.  7  Dowl.  & 
Ryl.  512,  S.C. 

(h)  6  Taunt.  408.  2  Marsh.  123,  S.  C,  and  see  1  Chit.  Rep.  729. 

(a)  1  Chit.  Rep.  207.  {b)  Id.  208. 

(c)  Ex  parte  Vaur/han,  E.  45,  Geo.  III.  K.  B.  Append.  Cliap.  TIT.  ^  4. 

(rf)  1  Barn.  &  Aid.  189,  90.  8  Taunt.  129.  3  Moore,  578.   1  Chit.  Rep.  163,  673,  692. 

(ee)  4  Moore,  347.  (/}  4  Dowl.  &  Ryl.  64G. 


79 


OF  THE  PRIVILEGES 


of  dut3^(^^)  But  attorneys  have  been  re-admitted  in  that  court,  "without 
payint^  any  fine  or  arrears,  on  making  it  appear  that  they  had  never  prac- 
tised (h)  or  had  discontinued  practice  after  their  last  certificate  had 
expired, (^')  or  that  they  were  prevented  from  practising  by  illness,(A:)  or 
by  being  reduced  to  the  situation  of  a  clerk  :{l)  and  the  distinction  is  said 
to  be  this ;  that  ■when  the  party  has  been  practising  in  the  interval,  he 
must  pay  the  arrears  of  duty;  but  not  so  when  he  has  not  practised.(wi) 
So,  in  the  Common  Pleas,  an  attorney  "who  had  ceased  to  practise  after 
the  passing  of  the  25  Geo.  III.  c.  80,  and  before  the  operation  of  the  37 
Geo.  III.  c.  90,  §  31,  had  commenced,  was  re-admitted,  without  paying 
any  penalty,  or  arrears  of  duty.(M)  And,  in  a  late  case,(o)  an  attorney 
who  had  ceased  to  practise  for  six  years,  was  re-admitted  in  that  court,  on 
payment  of  a  nominal  fine,  without  the  arrears  of  duty  ;  on  an  affidavit, 
stating  that  he  had  discontinued  to  practise,  on  account  of  his  afi'airs 
having  become  embarrassed,  that  he  had  not  practised  in  the  interval,  and 
that  no  misconduct  could  be  imputed  to  him  in  his  character  of  an 
attorney. 

*The  rule  for  re-admitting  an  attorney  is  a  rule  to  show  cause ; 
[  *80  ]  founded  on  an  affidavit,  stating  the  payment  of  the  duty  on  the 
articles  of  clerkship,  the  admission  under  them,  and  up  to  what 
time  the  attorney  obtained  his  certificate.  It  must  also  be  sworn,  that  he 
has  since  discontinued  to  practise  ;  for  otherwise  he  might  be  criminally 
culpable  :{a)  and,  where  a  considerable  time  has  elapsed,  the  reason  of  his 
ceasing  to  take  out  his  certificate  must  be  stated,  and  how  he  has  been 
since  employed,  in  order  to  show,  that  he  has  not  been  employed  in  any 
manner  that  may  unfit  him  for  the  duties  of  his  profession. (5)  The  affidavit 
then  states,  that  a  term's  notice  has  been  given,  when  necessary  of  his 
intention  to  apply  to  the  court ;  and  that  notice  of  his  name  and  place  of 
abode,  &c.,  has  been  served  on  the  solicitor  to  the  commissioners  of  stamp 
duties. (c)  An  attorney  may  be  re-admitted  on  the  last  day  of  term,  when 
notice  has  been  stuck  up  all  the  term.(c^) 


An  attorney,  when  duly  admitted,  enrolled  and  certificated,  is  supposed 
to  be  always  present  in  court :  and  on  that  account  has  many  privileges 
belonging  to  him,  in  common  with  the  other  officers  of  the  court. [a]  Where 
an  attorney  of  the  King's  Bench  or  Common  Pleas  is  plaintiff,  he  is  enti- 

{g)  4  Barn.  &  Aid.  90.  For  the  form  of  afiSdavit  for  his  admission,  on  the  above  ground, 
and  the  rule  of  court  thereon,  see  Append.  Chap.  III.  §  15,  16. 

(A)  1  Chit.  Rep.  V29.  (?)  2  Dowl.  &  Rvl.  238.  {k)  1  Chit.  Rep.  101,  692. 

{I)  2  Barn.  &  Aid.  314.  1  Chit.  Rep.  102,  («),  S.C,  and  see  id.  692.  1  Lee's  Prac.  Die.  2  Ed. 
333,  4  n.    2  Marsh.  123. 

{m)  2  Dowl.  &  Ryl.  239, per  Abbott,  Cb.  J.  {n)  2  Taunt.  398. 

(o)  1  Moore,  410.  1  Bing.  91,  S.  C,  and  see  Y  Moore,  493,  495. 

{a)  1  Chit.  Rep.  207,  316,  646.  (h)  2  Smith  R.  155.    5  Moore,  141. 

(c)  For  the  form  of  this  aflSdavit,  see  Append.  Chap.  III.  §  13,  and  for  the  rule  of  court 
thereon,  id.  ^  14. 

(d)  1  Chit.  Rep.  557,  in  notis. 

[a]  a  plea  of  privilege  is  effectual  in  a  suit  against  an  attorney,  commenced  in  a  justice's 
court  by  summons.  Gilbert  v.  Vanderpoel,  15  Johns.  242.  Van  Alseyne  v.  Dearborn,  2  Wend. 
257.  Bridgeport  Bank  v.  Sherwood,  16  Johns.  43.  Brown  v.  Childs,  17  Johns.  1.  King  v.  Burr, 
20  Johns.  274.  The  privilege  of  being  sued  by  bill  is  personal  merely,  and  the  attorney  may 
waive  it.  Seal  v.  Wigram,  12  Johns.  88,   Cole  v.  M'Clellan,  4  Hill,  59. 


OF  ATTORNEYS.  80 

tied  to  sue  in  bis  own  court,  by  attachment  of  privilege  ;(e)  and  may  lay 
and  retain  the  venue  in  Middle 8ex.[f)  Where  he  is  defendant,  he  must  be 
sued  in  his  own  court  by  l>iU,(r/;/)  even  as  acceptor  of  a  bill  of  exchange  ;{hh) 
and  cannot  be  arrested,  or  holdcn  to  special  bail.(?7)  It  is  also  said,  that 
an  attorney  is  entitled  to  have  his  cause  tried  atbar.(/f)  And  as  an  attor- 
ney is  not  subject  to  the  jurisdiction  of  the  courts  of  conscience,  except 
where  he  is  expressly  made  liable  thereto,  na  in  London, (r)West7ninstcr,{m) 
and  the  Toiver ITamh'ts,{n)he  may  in  all  other  cases  sue,(o)  and  be  sued,(j9) 
in  his  own  court  for  debts  under  forti/  shillings.  But  an  attorney  defend- 
ant, has  not  the  privilege  of  changing  the  venue  into  3Iiddlt'scx,  yvhen  it  iB 
laid  in  another  county. (y)  In  the  Common  Pleas,  the  attorneys  and  officers 
of  the  court  ought  to  be  sued  there  by  hill,  because  they  are  supposed  to  be 
always  present  in  court ;  but  the  Serjeants  and  their  clerks,  and  the  clerks 
of  the  judges  and  prothonotaries,  are,  it  is  said,  privileged  to  be  sued  in 
the  Common  Pleas  by  original  writ,  and  not  hy  bill. (r) 

*Where  an  attorney  is  arrested  upon  process  issuing  out  of  an 
inferior  court,  he  may  sue  out  his  writ  of  privilege,(a)  which  [  *81  ] 
ought  to  be  allowed  instanter:{h)  But  if  he  be  arrested  upon 
process  issuing  out  of  a  superior  court,  his  remedy  is  by  moving  the  court, 
to  be  discharged  out  of  custody  on  common  bail ;  or  by  finding  special  bail, 
and  pleading  his  privilege  in  abatement.  If  an  attorney,  or  other  officer  of 
the  King's  Bench  be  arrested,  by  process  issuing  out  of  the  same  court,  he 
may  move  to  be  discharged  on  common  bail.((?)  But  an  attorney  or  officer 
of  a  different  court  was  formerly  obliged  to  find  special  bail,  and  plead  his 
privilege  in  abatement. (cZ)  This  distinction  however  seems  to  be  now  abo- 
lished :  and,  in  a  late  case,  the  court  of  King's  Bench  stayed  the  proceed- 
ings in  an  action  brought  in  that  court  against  an  attorney  of  the  Common 
Pleas,  who  gave  notice  of  his  privilege,  but  neglected  to  plead  it,  after  the 
plaintiff  had  signed  judgment  for  want  of  a  plea.(e)  So,  where  an  attor- 
ney of  the  Common  Pleas  was  arrested,  on  an  attachment  of  privilege,  at 
the  suit  of  an  attorney  of  the  King's  Bench,  the  latter  court  ordered  the 
bail-bond  to  be  delivered  up  to  be  cancelled,  on  his  entering  a  common 
appearance ;(/)  and  in  a  subsequent  case,  the  proceedings  were  ordered  to 
be  set  aside  for  irregularity,  with  costs. (^)  But  where  an  attorney,  having 
been  arrested  in  the  beginning  of  January,  put  in  bail  above,  and  did  not 
apply  to  the  court  for  his  discharge  until  the  3d  of  February,  the  court 

(e)  Gilb.  C.  P.  3. 

(/)  2  Salk.  668.  4  Bur.  202?.  2  Rlac.  Rep.  10G5.  3  Durnf.  &  East,  573. 

(V.y)  3  Blac.  Com.  289.  3  Taunt.  166. 

(/(/()  Doug.  312.  2  Chit.  Rep.  63. 

(jV)  1  Mod.  10.   Beck  v.  Lewin,  T.  56  Geo.  III.  K.  B.    4  Dowl.  &  Ryl.  73. 

(A-)  6  Mod.  123.  {I)  Stat.  39  &  40  Geo.  III.  c.  civ.  I  10. 

{in)  24  Geo.  II.  c.  42,  §  1.  Doug.  381.  («)  19  Geo.  III.  c.  68,  §  24. 

(o)  Doug.  382,  in  notis.  ITutsei/  <j-  another  v.  Jordan,  T.  25  Geo.  III.  K.  B.  7  East,  47.  3 
Smitli  11.  52,  S.  C.    5  Moore,  622.'  2  Brod.  &  Bing.  608,  S.  0. 

(/))  2  Wils.  42.   Doug.  381,  but  see  3  Bur.  1583,  conYrrt. 

(g)  4  Bur.  2027.  2  Blac.  Rep.  1065.  Sparkc  v.  Stofccs,  one,  &c.,  U.  24  Geo.  III.  K.  B.  3 
Durnf.  k  East,  573.    2  Str.  1049,  contra. 

(r)  1  Ld.  Raym.  399.  3  Salk,  283,  S.  C.,  and  see  Cas.  Pr.  C.  P.  104,  Pr.  Reg.  380.  Barnes, 
371,  S.  C. 

(a)  Append.  Chap.  III.  §  17. 

\b)  Ca?.  Pr.  C.  P.  2.  2  Blac.  Rep.  1087,  but  see  10  Moore,  270. 

(c)  1  Mod.  10.   2  Salk.  544.   1  Wils.  298. 

(d)  2  Salk.  544.  2  Str.  8G4.  2  Ld.  Raym.  1567,  S.  C.  1  Wils.  306. 

(e)  Gwynne  v.  Toldervy,  one,  <fec.,  11.  54  Geo.  III.  K.  B. 

(/)  Beck  V.  Lewin,  T.'56  Geo.  III.  K.  B.  {o)  4  Dowl.  &  Ryl.  73. 


81 


OF  THE  PRIVILEGES 


held  the  application  to  be  too  late.(7i)  A  defendant  who  is  snedhj  hill,  as 
an  attorney  of  the  court  of  King's  Bench,  not  being  such,  may  set  aside  the 
proceedings  as  irregular. (z)  But  where,  in  a  similar  case,  a  rule  was 
obtained  for  setting  aside  the  proceedings,  on  the  ground  that  they  were 
absolutely  void,  and  not  merely  irregular ;  the  court  held,  that  they  were 
not  void,  but  irregular  only ;  and  that  the  defendant,  not  having  applied 
in  time,  could  not  take  advantage  of  the  irregularity.(M) 

In  the  Exchequer  of  Pleas,  an  a'ttorney,  side  clerk,  or  other  officer,  may 
sue  by  venire  facias,  or  capias  of  privilege,  (Z)  and  must  be  sued  by  bill. 
A  person  suing  there  by  process  of  privilege,  is  entitled  to  have  his  writ 
sealed,  without  paying  fees  :{m)  and  it  is  holden,  that  an  attorney  of  the 
King's  Bench  or  Common  Pleas  may  be  arrested  and  held  to  bail,  upon  a 
capias  of  privilege  issuing  out  of  this  court. (?«.)  It  also  seems  that,  an 
officer  or  accountant,  suing  with  his  wife,  is  entitled  to  privilege  in  the 
Exchequer  :(o)  but  it  is  otherwise,  when  he  is  sued  with  her;(j9)  for  a  bill 
cannot  be  iBled  against  the  wife,  as  present  in  court.  It  should  also  be 
observed,  that  in  the  Exchequer,  a  member  of  either  university  cannot  set 
up  his  privilege,  *against  that  of  an  officer  or  accountant,  or 
[  *82  ]  against  any  person  suing  as  a  debtor;  this  court  not  being  men- 
tioned in  their  charter  of  exemption,  (a)  But  an  attorney,  not 
being  one  of  the  sworn  attorneys  of  the  court,  is  not  entitled,  as  such,  to 
the  privilege  of  laying  his  venue  in  Middlesex.ih) 

An  attorney  or  officer  is  also,  by  reason  of  the  supposed  necessity  of  his 
attendance  in  court,  exempt  from  all  offices  that  require  personal  service, 
as  sheriff,{c)  constahle,[d)  overseer  of  the  poor,{e)  ^c;  and  formerly,  he 
was  not  liable  to  serve  in  the  militia ;[f )  but  several  acts  of  parliament 
that  were  passed  in  the  course  of  the  late  reign,  having  allowed  personal 
service  in  the  militia  to  be  commuted  for  a  certain  sum  of  money,  to  be 
laid  out  in  providing  a  substitute,  it  has  been  holden  that  this  exemption 
no  longer  exists,(^) 

These  privileges  are  allowed,  not  so  much  for  the  benefit  of  attorneys, 
as  of  their  clients ;(7i)  and  are  therefore  confined  to  attorneys  who  prac- 
tise,(i)  or  at  least  have  practised  within  a  year  ',[k)  for  it  is  a  rule,  that 
such  attorneys  as  have  not  been  attending  their  employment  in  the  King's 
Bench  for  the  space  of  a  year,  unless  hindered  by  sickness,  be  not  allowed 
their  privilege  of  attorneys  '.{II)  And  an  attorney,  not  having  practised  for 
some  time  previous  to  the  issuing  of  the  plaintiff's  writ  against  him,  is  not 

{h)  1  Chit.  Rep.  188. 

\i)  5  Maule  &  Sel.  324.  2  Chit.  Rep.  396,  S.  C,  and  see  6  Barn.  &  Cres.  79,  {b). 

(M)  6  Barn.  &  Cres.  77,  {h). 

a)  9  Price,  16  Append.  Chap.  XIV.  §  15,  16.  (m)  Man.  Excheq.  1 42, 3. 

(n)  Id.  142.  9  Price,  16.  1  Y.  &  J.  199.  (o)  1  Taunt.  254. 

(jo)  Man.  Excheq.  145,  6.  {a)  Hadr.  188.  Man.  Ex.  Pr.  145. 

(6)  1  Price,  384.  (c)  4  Bur.  2109. 

{d)  Doug.  538,  and  see  1  Esp.  Rep.  359. 

(e)  2  Blac.  Rep.  1126.    8  Durnf.  &  East,  379,  {a),  and  see  Append.  Chap.  III.  I  18. 

(/)  Barnes,  42.  Andr.  355.  2  Str.  1143.  {g)  Gerard's  Case,  2  Blac.  Rep.  1123. 

{h)  2  Wils.  44.  4  Bur.  2113.  Doug.  381. 

{i)  2  Wils.  232.  4  Bur.  2113.  2  Blac.  Rep.  1086.  1  Bos.  &  Pul.  4.  2  Lutw.  \QQl ,  contra. 

{k)  Ridley  and  Car.  E.  1656.  1  Lil.  P.  R.  142.  Chippendale's  Case,  E.  19  Geo.  III.  K.  B. 
Sand  V.  Heysham,  H.  24,  Geo.  III.  K.  B.    Chrishop  v.  CouUhard,  E.  25  Geo.  III.  K.  B. 

(11)  R.  M.  1654,  §  1,  K.  B.  &  C.  P.  2  Maule  &  Sel.  605.  Formerly,  if  an  attorney  of  the  Com- 
mon Pleas  absented  himself  from  the  court  for  two  terms  together,  except  it  were  by  occa- 
sion of  sickness,  or  other  like  urgent  cause,  to  be  allowed  of  by  the  court,  he  was  liable  to 
be  forejudged  the  court,  and  to  be  no  longer  an  attorney  thereof.  R.  T.  24  Eliz.  g  9,  C.  P. 


OF  ATTORNEYS.  82 

privileged  from  being  arrested  tLcreon,  and  held  to  bail,  on  the  ground  of 
having  recommenced  his  practice,  and  taken  out  his  certificate,  before  he 
was  actually  arrested. (7»m)  But  an  attorney  we  have  8ecn,{nn)  may  sue 
by  attachment  of  privilege,  though  his  certificate  has  expired,  and  not 
been  renewed,  if  the  writ  be  sued  out  within  a  year  from  the  expiration  of 
his  certificate. 

AVhen  the  plaintiff  and  defendant  arc  attorneys  of  different  courts,  the 
plaintiff  is  allowed  his  privilege  of  suing  the  defendant  by  attachment  ;(oo) 
and  in  this  case  it  is  commonly  said,  that  there  is  no  privilege  against  pri- 
vilege ;  or  in  other  words,  the  privilege  of  the  plaintiff  takes  away  that  of 
the  defendant;  for  the  attendance  of  the  plaintiff  is  as  necessary  in  his  court, 
as  that  of  the  defendant  in  his,  and  therefore  the  cause  is  legally  attached 
in  the  court  where  the  plaintiff"  is  an  officcY.{p)  But  where  the  plaintifi" 
and  defendant  are  both  attorneys  of  the  sa^^jc  court,  the  defendant 
*is  entitled  to  his  privilege  of  being  sued  by  hill;{a)  and  if  not  so  [  *83  ] 
sued,  he  may  plead  his  privilege  in  abatement,  or  the  court  on 
motion  will  stay  the  proceedings,  but  without  costs. (i)  In  the  King's 
Bench,  where  an  action  is  brought  by  an  attorney  of  that  court,  against  an 
attorney  of  the  Common  Pleas,  though  the  former  is  entitj^d  to  sue  in  his 
own  court  by  attachment  of  privilege,  yet  he  cannot  arrest  the  defendant, 
and  hold  him  to  special  bail.(<?)  But  in  the  Exchequer,  we  have  seen,(t?) 
an  attorney  of  the  King's  Bench,  or  Common  Pleas,  may  be  arrested  and 
held  to  bail  upon  a  capias  of  privilege^  issuing  out  of  the  former  court. (tf) 
So,  in  Chancery,  it  has  been  determined,  that  an  attorney  of  the  King's 
Bench,  and  practising  solicitor  of  the  court  of  Chancery,  may  be  arrested 
on  an  attachment  of  privilege,  at  the  suit  of  a  sworn  clerk  of  the  latter 
court. (e)  And  it  has  even  been  holden,  that  an  attorney  of  the  King's 
Bench  may  be  arrested  on  an  atachment  of  privilege,  issuing  out  of  the 
court  of  Common  Pleas  at  Lancaster,  at  the  suit  of  an  attorney  of  that 
court.(/) 

An  attorney  may  also  ivaive  his  privilege,  either,  when  plaintiff,  by  suing 
as  a  common  person,((/)  or,  when  defendant,  by  not  claiming  it  in  due  time, 
or  in  a  proper  manner ;(//)  And  it  seems  that  an  attorney  waives  his  privi- 
lege, by  entering  into  a  bail  bond,  on  process  issuing  out  of  a  different  court ; 
as  he  must  be  sued  in  the  court  out  of  which  the  process  issued. («)  AYhere 
an  attorney  of  the  Common  Pleas  is  in  the  actual  custody  of  the  marshal,  he 
may  be  sued  in  the  King's  Bench  as  a  prisoner,  by  third  persons :(/:)  But 
where  an  attorney  of  the  Common  Pleas  puts  in  bail,  to  an  action  depend- 
ing in  the  King's  Bench,  he  does  not  thereby  lose  his  privilege ;  but  may 
plead  it  in  that  action,  or  in  any  other  brought  against  him  by  the  hye: 
for  it  would  be  absurd,  that  he  who  founds  his  action  on  that  of  another, 

{mm)  1  Durnf.  &  East,  25.  {nn)  Ante,  76. 

\oo)  2  Brownl.  266.  2  Str.  837.  1  Barnard,  K.  B.  182,  228,  S.  C.  1  Blac.  Rep.  19.  Barnes, 
44.  2  Blac.  Rep.  1325. 

(/))  4  Bac.  Abr.  227,  and  see  9  Price,  16. 

(a)  2  Str.  1141.   1  Blac.  Rep.  19.  2  Blac.  Rep.  1085.  6  Durnf.  &  East,  524. 

(b)  6  Durnf.  &  East,  524.  s'Durnf.  &  East,  395.  Barnes,  53.  Ante,  81. 

(c)  Beck  V.  Letciri,  T.  56  Geo.  III.  K.  B.  4  Dowl.  &  Ryl.  73,  per  Bayley,  J.  (d)  Ante,  81. 
(e)  Wameu-right  v.  Smith,  M.  7  Geo.  IV.  1  Younge  &  J.  200,  {b). 

(  /)  Hopkins  V.  Fcrrand,  1  Younge  &  J.  204,  (a). 

(,/)  2  Str.  837.    1  Barnard,  228,  S.  C,  and  see  1  Bos.  &  Pul.  G29.  2  Bos.  &  Pul.  29. 

(h)  2  Blac.  Rep.  1085. 

(i)  Barnes,  117,  and  see  3  Wils.  348.  2  Blac.  Rep.  838,  S.  C.  1  H.  Blac.  631. 

(k)  1  Str.  191.  4  Barn.  &  Aid.  88. 


33  OF  THE  PRIVILEGES  AND 

should  be  in  a  better  condition  than  the  original  plaintiff.(?)  Yet  where  an 
attorney,  after  having  put  in  bail,  waives  his  privilege,  by  pleading  in 
cliief  in  one  action,  it  is  construed  to  be  a  waiver  of  privilege,  in  all  other 
actions  brought  against  him  by  the  bye,  during  the  same  term.(/)  And  if 
the  defendant  plead  his  privilege,  after  he  has  waived  it,  the  plaintiff  in  his 
replication  must  show  the  waiver,  and  rely  upon  the  estoppel.(wz)  It  is 
likewise  settled,  that  an  attorney  shall  not  be  allowed  his  pri- 
[  *84  ]  vilege,  as  against  the  king  ',{ii)  or  where  he  sues  or  *is  sued  en 
auter  droit,  as  executor  or  administrator; (a)  or  jointly  with  his 
wife,(^)  or  other  person  who  is  not  privileged  :(c)  or  where  there  would  other- 
wise be  a  failure  or  defect  of  justice,  as  where  an  appeal  is  brought  in  the 
King's  Bench,  a  real  action  in  the  Common  Pleas,  or  a  foreign  attach- 
ment in  the  sheriff's  court  of  London,  against  an  attorney  of  a  different 
court.((^)  But  an  attorney  sued  by  hill,  jointly  with  a  person  having  priv- 
ilege of  parliament,  does  not  lose  his  privilege. (e) 

As  an  attorney  is  entitled  to  many  privileges,  so  he  is  subject  to  some 
disabilities  and  restrictions.  By  the  statute  1  Hen.  V.  c.  4.  "  no  under- 
sheriff,  sheriff's  clerk,  receiver,  or  sheriff's  bailiff,  shall  be  attorney  in  the 
king's  courts,  enuring  the  time  that  he  is  in  office:"  which  statute  is  enforced 
by  rules  of  court,(/)  declaring  that  no  under-sheriff,  or  bailiff  of  sheriffs  or 
liberties,  be  admitted,  during  such  their  employment,  to  practise  as  attor- 
neys, under  pain  of  expulsion  from  the  employment  of  an  attorney,  and 
not  to  be  re-admitted."  And  by  the  statute  22  Geo.  II.  c.  46,  §  14,  "  no 
clerk  of  the  peace  or  his  deputy,  nor  any  under-sheriff  or  his  deputy,  shall 
act  as  a  solicitor,  attorney  or  agent,  or  sue  out  any  process,  at  any  general 
or  quarter  sessions  of  the  peace,  to  be  held  for  any  place  where  he  shall 
execute  his  office,  upon  pain  of  forfeiting ^i^?/  pounds."  By  rule  of  3Iich. 
1654,  §  1,  "no  attorney  can  be  lessee  in  ejectment;  or  bail  for  a  defend- 
ant, in  any  action  depending  in  either  court."(^)  By  statute  5  Geo.  II.  c. 
18,  §  2,  "  no  attorney  or  solicitor  shall  be  capable  to  continue  or  be  a  justice 
of  the  peace,  in  England  or  Wales,  during  such  time  as  he  shall  continue 
in  the  business  or  practice  of  an  attorney  or  solicitor."(7i)  By  other  acts 
of  parliament,(z)  "  no  attorney  or  solicitor,  or  person  practising  as  such, 
can  be  a  commissioner  of  the  land  tax,  without  possessing  one  hundred 
pounds  a  year."  And  it  was  usual  to  except  attorneys,  who  had  embezzled 
their  clients'  money,  out  of  the  insolvent  debtors'  acts.(/;) 

Also,  by  the  statute  12  Geo.  II.  c.  113,  {II)  "  no  attorney  or  solicitor,  who 

{I)  27  Hen.  VI.  6,  a.  31  Hen.  VI.  10.  Carth.  377.  1  Salk.  1,  2.  1  Ld.  Raym.  135,  S.  C.  12 
Mod.  102,112,535.   1  Str.  191. 

(m)  1  Ld.  Raym.  136. 

[n)  1  Ld.  Raym.  27.  But  actions  qui  tarn  are  not  considered  as  the  king's  actions.  T. 
Raym.  275.  1  Lutw.  196.  3  Lev.  398,  S.  C.  1  Salk.  30.  2  Salk.  543.  3  Salk.  282.  Comb.  319, 
12  Mod.  74,S.C.  1  Blac.  Rep.373.  Cowp.367.  Barnes,  48. 

{a)  Hob.  177.  1  Salk.  2.  1  Ld.  Raym.  533,  S.  C. 

(6)  Bro.  Abr.  tit.  Bill,  pi.  2.  Dyer,  377,  {a).   1  Taunt.  254. 

(c)  2  Rol.  Abr.  274.  2  Salk.  544.  12  Mod.  163,  4.  Pratt  v.  Salt,  H.  8  Geo.  IL  cited  in  4  Bac. 
Abr.  223. 

(d)  1  Wms.  Saund.  5  Ed.  67.   8  Durnf.  &  East,  417. 

(e)  4  Maule  &  Sel.  585.  (/)  R.  M.  1654,  §  1,  K.  B.  &  C.  P. 
(ff)  See  also  Doug.  466. 

(h)  But  see  3  Taunt.  166,  where  it  was  holden,  that  an  attorney,  who  was  a  justice  of  the 
peace  for  a  borough,  if  sued  by  orifjinal,  for  an  act  done  in  his  office  as  magistrate,  might 
plead  his  privilege  in  abatement. 

(t)  See  the  statute  30  Geo.  II.  c.  3,  §  87,  &c. 

{/(■)  But  it  seems  that  an  attorney  did  not  come  within  this  exception,  unless  he  were  in 
custody  for  money  recovered  by  him  as  an  attorney.  2  Blac.  Rep.  798.  {II)  g  9. 


DUTIES  OF  ATTORNEYS.  84 

shall  be  a  2>risoner  in  any  gaol  or  prison,  or  witliin  the  limits,  rules  or  liber- 
t  es  thereof,  shall,  during  his  confinement,  in  his  own  name,  or  in  the  name 
of  any  other  attorney  or  solicitor,  sue  out  any  -writ  or  process,  or  coritmence 
or  jyroseciite  any  action  or  suit,  in  any  courts  of  law  or  equity ;  and  all  pro- 
ceedings in  such  actions  or  suits,  shall  be  void  and  of  none  efi'cct; 
And  such  attorney  or  solicitor,  so  commencing  or  *prosecuting  [  *85  ] 
any  action  or  suit  as  aforesaid,  shall  be  struck  off  the  roll,  and 
incapacitated  from  acting  as  an  attorney  or  solicitor  for  the  future ;  And  any 
attorney  or  solicitor,  permitting  or  empowering  any  such  attorney  or  solici- 
tor as  aforesaid,  to  commence  or  prosecute  any  action  or  suit  in  his  name, 
shall  be  punished  in  like  manner.  Provided  nevertheless,  that  nothing  in 
the  said  act  contained,  shall  extend,  or  be  construed  to  extend,  to  prevent 
any  attorney  or  solicitor  so  confined  as  aforesaid,  from  carrying  on  or 
transacting  any  suit  or  suits,  commenced  before  the  confinement  of  such 
attorney  or  solicitor  as  aforesaid. "(a)  This  statute  has  been  held  to  relate 
only  to  the  j^'t'osecuting,  and  not  to  the  defending  of  suits  :{h)  And  an 
attorney,  when  in  prison,  may  sue  by  attachment  of  privilege,  for  a  debt 
of  his  own.(6')  So  where,  after  an  action  commenced  by  an  attorney,  he 
became  a  prisoner,  and  then  the  bail-bond  was  assigned,  and  he  being  still 
a  prisoner,  commenced  an  action  on  the  bail-bond,  this  was  holden  to  be  a 
continuance  of  the  original  suit,  commenced  before  the  attorney  became  a 
prisoner. (tf)  But  an  attorney  entering  a  plaint,  and  suing  out  process  in 
the  county  court,  whilst  he  is  a  prisoner  in  gaol,  is  within  the  meaning  of 
the  above  statute,  and  liable  to  be  struck  off  the  roll.(e) 

The  principal  duties  of  an  attorney  or  agent  are  care,  skill,  and  inte- 
grity :[a]   And,  if  he  be  not  deficient  in  any  of  these  essential  requisites, 

(a)  I  12.  (6)  Barnes,  263.     Willes,  288,  {b).  S.  C. 

(c)  7  Durnf.  &  East,  671.     2  Maule  &  Sel.  605.  (f/)  Barnes,  46. 

{e)  1  Barn.  &  Cres.  254.     2  Dowl.  &  Ryl.  406,  S.  G. 

[a]  "  An  attorney  impliedly  undertakes,  and  is  bound  to  use  skill  and  diligence  in  the 
management  of  the  business  in  which  he  is  employed  by  his  client.  It  would  indeed,  be 
very  difficult  to  define  the  exact  limit  by  which  the  skill  and  diligence  which  an  aitorney 
undertakes  to  furnish  in  the  conduct  of  a  cause  is  bounded,  or  to  trace  precisely  the  divid- 
ing line  between  that  reasonable  skill  and  diligence  which  appears  to  satisfy  his  undertak- 
ing, and  that  crassa  ncijligcntia,  or  lata  cu/pa,  mentioned  in  some  of  the  cases  for  which  he  is 
undoubtedly  responsible.  The  cases,  however,  appear  to  establish,  that  an  attorney  is 
liable  for  the  consequences  of  ignorance  or  non-observance  of  the  rules  of  practice  of  the 
court ;  for  want  of  care  in  the  preparation  of  a  cause  for  trial,  or  of  attendance  thereon,  with 
bis  witness,  and  for  the^mis-nianagement  of  so  much  of  the  conduct  of  a  cause  as  is  usually 
and  ordinarily  allotted  to  his  department  of  the  profession.  But,  on  the  other  hand,  he  is 
not  answerable  for  error,  in  judgment  upon  points  of  new  occurrence,  or  of  nice  and  doubtful 
construction,  or  of  such  as  are  usually  entrusted  to  men  iu  the  higher  branch  of  the  profes- 
sion of  the  law. 

''  Bcaides  the  ordinary  proceedings  by  action  for  any  breach  of  duty,  and  by  indictment 
for  any  crime,  there  is  a  mode  of  proceeding  against  attorneys  by  an  application  to  the  sum- 
mary jurisdiction  of  the  court,  which  jurisdiction  is  exercised  according  to  law  and  con- 
science and  not  by  any  technical  rules.  The  court  will,  in  general,  compel  the  attorney" 
specially  to  perform  his  duty  if  practicable,  and  will  punish  him  for  its  breach.  The  mode 
of  punishment  (where  the  court  interferes  summarily)  is  either  by  fine,  attachment,  or,  in 
very  gross  cases,  where  enough  is  shown  to  prove  that  the  attorney  is  unfit  to  be  a  member 
of  the  profession,  by  striking  him  off  the  roll,  and,  if  struck  off  by  one  court,  he  will  not 
afterwards  be  admitted  in  any  other.  In  some  cases,  the  court  think  it  sufficient  to  make 
him  piiy  the  costs  incurred  by  the  parties,  by  reason  of  his  misconduct;  as,  where  an 
attorney  put  in  bail  which  he  knew  to  be  insufficient,  and  gave  notice  of  their  justification 
the  court  ordered  him  to  pay  the  costs  of  opposing  them.  It  may  be  added,  that  the  court 
will  thus  interfere,  though  the  attorney  may  have  ceased  being  such,  if  he  were  an  attorney 


85  OF  THE  DISABILITIES,  AND 

he  is  not  responsible  for  any  error  or  mistake,  arising  in  the  exercise  of 
his  profession.     To  use  the  words  of  Lord  3fansfield,  in  the  case  of  Pitt 

at  the  time  the  crime  or  misconduct  complained  of  took  place ;  for  this  purpose  the  maxim 
being,  "  once  an  attorney,  always  an  attorney." 

"The  court  will,  in  general,  interfere  in  this  summary  way  and  strike  an  attorney  off  the 
roll  or  otherwise  punish  him  for  gross  misconduct,  not  only  in  cases  where  the  misconduct 
has  arisen  in  the  course  of  a  suit,  or  other  regular  and  ordinary  business  of  an  attorney, 
but  where  it  has  arisen  in  any  other  matter  so  connected  with  his  professional  character 
as  to  afford  a  fair  presumption  that  he  was  employed  in,  or  intrusted  with  it  in  consequence 
of  that  character."     1  Archb.  Pract.  p.  67,  115,  117,  8  Lond.  Ed. 

An  attorney  is  liable  only  for  gross  negligence  or  gross  ignorance  in  the  performance  of 
his  professional  duties;  and  this  is  a  question  of  fact  to  be  determined  by  the  jury,  and  is 
sometimes  to  be  ascertained  by  the  evidence  of  those  who  are  conversant  with,  and  skilled 
in,  the  same  kind  of  business  ;  Pennin(/ton  v.  Yell,  6  Eng.  212.  Holmes  v.  Peck,  1  Rhode 
Island,  242  ;  and  it  is  a  fair  presumption  that  an  attorney  acts  according  to  the  instructions  of 
his  client,  unless  in  a  case  of  such  gross  negligence,  that  a  violation  may  be  inferred,  lb. 
Cox  v.  Sullivan,  7  Geo.  Rep.  144.  Garrison  v.  Willcoxsen,  11  Ibid.  184.  Nisbit  v.  Laioson,  1 
Kelly,  275.  Wilson  v.  Coffin,  2  Cush.  316,  Wilsonx.  Russ,  7  Shep.  421.  Mardis\.  Shackle- 
ford,  4  Ala.  493.  Uoey  v.  diartin,  Riley,  156.  Warren  v.  Grisivold,  8  Wend.  665.  Gallagher 
V.  Thompson,  Wright,  466.     Evans  v.   Wairous,  2  Porter,  209. 

The  employment  of  an  attorney  to  conduct  a  cause  is  a  personal  trust  and  confidence 
which  cannot  be  delegated  to  another  but  by  consent  of  the  person  interested.  Hitchcock  v. 
M'Gehce,  7  Port.  556.  Johnson  v.  Cunningham,  1  Ala.  249.  But,  if  made,  the  party  interested 
may  make  it  binding  by  his  assent  with  a  full  knowledge  of  the  facts.  Or  if  he  does  not  dis- 
sent on  seasonable  notice.  But  where  notice  was  not  given  until  three  years  after  the 
delegation  was  made,  silence  will  not  be  construed  a  ratification.     76. 

And  the  attorney  is  entitled  to  the  benefit  of  the  rule  that  every  one  shall  be  presumed 
to  have  discharged  his  legal  and  moral  obligations  until  the  contrary  shall  be  made  to 
appear.  Pennington  v.  Yell,  6  Eng.  212.  And  even  then  the  extent  of  the  damages  must 
also  be  affirmatively  shown;  as  where  the  amount  of  a  note  is  alleged  to  have  been  lost 
by  his  negligence,  it  must  be  shown  that  it  was  a  subsisting  debt  against  the  maker,  and 
also  that  he  was  solvent.  lb.  And  unless  the  latter  be  shown,  he  would  be  liable  only  for 
nominal  damages  ;  and  under  no  circumstances  would  be  liable  for  more  than  the  actual 
damages  that  the  client  has  sustained  by  his  negligence,  lb.  Cox  v.  Sullivan,  7  Geo.  Rep. 
144.  When  an  attorney  undertakes  the  collection  of  a  debt,  it  becomes  his  duty  to  sue  out 
all  processes,  both  mesne  and  final,  necessary  to  effect  that  object;  and  not  only  the  first 
execution  but  all  such  as  may  become  necessary,  lb.  Dearborn  v.  Dearborn,  15  Mass.  316. 
Crooker  v.  Hutchinson,  2  Chip.  117.  1  Verm.  73,  S.  C.  Eccles  v.  Stevenson,  3  Bibb.  517.  But 
he  is  not  bound  to  institute  new  collateral  suits  without  special  instructions,  such  as  actions 
against  the  sheriff  and  clerk  for  the  failure  of  their  duty.  lb.  It  would  seem  that  he  should 
pursue  bail,  however,  and  those  who  may  have  become  bound  with  the  defendant,  in  the 
progress  of  the  suit,  either  before  or  after  judgment,  lb.  But  he  is  not  bound  to  attend  in 
person  to  the  levy  of  an  execution,  or  to  search  out  for  property,  out  of  which  to  make  the 
debt;  this  is  the  business  of  the  sheriff;  nor  is  he  liable  for  any  of  the  short  comings  of 
that  officer,  lb.  And  as  to  all  professional  duties,  he  will  always  be  justified  in  ceasing  to 
proceed  with  his  client's  cause,  unless  specially  instructed  to  go  on,  whenever  he  shall  be 
bona  fide  influenced  to  this  course  by  a  prudent  regard  for  the  interest  of  his  client.  lb. 
Gleason  v.  Clark,  9  Cow.  57.     Castro  v.  Bennett,  2  Johns.  296.     Benton  v.  Craig,  2  Miss.  198. 

It  has  been  held  that  money  collected  by  an  attorney  for  his  client,  must  be  demanded, 
or  a  direction  to  remit  given  and  neglected,  before  a  suit  can  be  brought  therefor  ;  but 
where  the  attorney  denies  his  liabilitj'  to  pay,  and  sets  up  a  claim  against  his  client, 
exceeding  the  amount  collected,  this  amounts  to  a  waiver  of  a  demand.  Walradt  v.  May- 
nard,  3  Barb.  Sup.  Ct.  R.  584.  Krause  v.  Dorrance,  10  Barr,  462.  And  where  two  attorneys 
collect  and  transmit  their  clients'  funds  in  depreciated  bank  paper,  which  the  clients  refuse 
to  receive,  and  send  back  with  an  offer  to  return  them,  and  a  request  to  make  up  the 
difference,  and  the  attorneys  decline  to  do  any  thing  about  it,  the  clients  have  a  right  to  sell 
the  paper,  and  recover  the  deficiency  from  the  attorneys.  West  y.  Ball,  \2  Ma..  34,Q.  One 
attorney  confided  a  note  to  another  for  collection,  and  took  his  receipt  therefor,  but  with- 
out giving  instructions  with  respect  to  the  ownership.  After  the  money  was  collected, 
it  was  remitted  to  the  payee  of  the  note,  whose  name,  however,  was  indorsed  on  the  note. 
Held,  that  this  remittance  (the  payee  not  being  the  owner,)  did  not  discharge  the  collecting 
attorney  from  liability  to  his  immediate  principal ;  and  that  the  action  of  the  latter,  for  the 
money,  would  not  be  defeated  by  proofs  that  he  was  himself  the  agent  of  the  indorsee, 
unless  the  indorsee  had  asserted  his  right  to  the  money  as  against  his  agent.  Lewia  v. 
Peck,  10  Ala.  142. 


DUTIES  OF  ATTORNEYS.  8 

V.  Yaldcn^if)  "  that  part  of  the  profession  which  is  carried  on  by  attor- 
neys is  liberal  and  reputable,  as  -well  as  useful  to  the  public,  when  they 
conduct  themselves  with  honour  and  integrity;  and  they  ought  to  be  pro- 
tected, where  they  act  to  the  best  of  their  skill  and  knowledge :  but  every 
man  is  liable  to  error  :"  and  his  lordship  added,  *'  he  should  be  very  sorry, 
that  it  should  be  taken  for  granted,  that  an  attorney  is  answerable  for 
every  error  or  mistake,  and  liable  to  be  punished  for  it,  by  being  charged 
with  the  debt  sued  for.  A  counsel  may  mistake,  as  well  as  an  attorney; 
yet  no  one  will  say  that  a  counsel  who  has  been  mistaken,  shall  be  charged 
with  the  debt.     The  advice  of  a  counsel  is  indeed  honorary,  and  he  does 

(/■)  4  Bur.  2061,  and  sco  4  Barn.  &  Aid.  202.  3  Barn  &  Cres.  738.  5  Dowl.  k  Ryl.  635, 
S.  U.     1  Ry.  &  Mo.  317.     2  Car.  &  P.  113,  S.  C. 

It  is  the  duty  of  an  attorney  to  pay  over  to  his  client  the  money  collected  for  him  ;  and 
if  he  has  any  doubt  whether  the  debts  collected  belonged  to  his  client,  all  that  he  has  any 
right  to  asli,  is  indemnity,  on  paying  over  the  money.  3/arvin  v.  ELUvood,  11  Paige,  365. 
Where  the  evidence  of  a  debt  then  due  is  left  with  an  attorney,  who  gives  a  general  receipt 
for  it,  it  will  be  presumed  that  he  received  it  for  the  purpose  of  collection ;  and  if  an 
action  be  brought  against  him  for  his  negligence,  by  which  the  debt  was  lost,  it  is  incum- 
bent on  him  to  show  that  he  received  it  specially,  and  ior  some  other  purpose.  Smedes 
V.  ElmendorJ\  3  Johns.  185.  An  attorney  gave  a  receipt  for  certain  notes  for  collection,  and 
after  his  death  an  action  was  brought  against  his  executors  for  moneys  had  and  received, 
and  the  receipt  was  the  only  evidence  relied  on  to  charge  the  testator's  estate.  Held,  that 
this  evidence  was  insufficient,  and  that  the  plaintiff  was  bound  to  prove  the  actual  receipt 
of  money  or  other  payment,  or  a  discharge  by  the  attorney  on  account  of  the  nutes.  Kuhn 
V.  Ilunt,  2  Brevard,  164.  An  attorney  at  law  who  has  collected  money  for  his  client,  will,  if 
he  deliver  it  to  a  third  person  to  carry  to  his  client,  without  authority  or  directions  from 
the  client  so  to  do,  be  liable  to  his  client  for  the  sum  thus  collected,  if  the  same  be  stolen 
from  such  third  person  while  on  his  way  with  the  monej',  even  though  such  person  were 
trustworthy,  and  took  the  same  care  of  the  money  that  he  did  of  his  own.  Grayson  v. 
Wilkinson,  5  Smedes  &  Marsh.  268.  An  attorney  who  has  collected  money  for  his  client, 
is  bound  to  notify  him  within  a  reasonable  time  that  he  has  it  in  his  hands ;  and  if  he  does 
so  the  client  has  no  cause  of  action  against  the  attorney  to  recover  the  money  until  after 
demand  and  refusal.  Dmton  v.  Embury,  5  Eng.  228;  Cummins  v.  McLain,  2  Pike,  402; 
Mardis  v.  Shackleford,  4  Ala.  493  ;  Rathbun  v.  Ingalls,  7  Wend.  320  ;  Tcnjhr  v.  Bates,  5  Cow. 
376  ;  Feryuson^s  Case,  6  Cow.  596  ;  Staples  v.  Staples,  4  Greenl.  533  ;  Taylor  v.  Armisted,  3 
Call.  290;  Contra,  Coffin  v.  Coffin,  7  Greenl.  298.  But  if  the  attorney  does  not  notify  his 
client  that  he  has  collected  funds  on  his  account  within  a  reasonable  time,  he  will  be  liable 
to  an  action  without  special  demand.  lb.  An  attorney  at  law,  who  undertakes  the  collection 
of  a  debt,  and  by  gross  negligence,  puts  it  into  such  a  situation,  as  to  embarrass  the 
creditor  in  obtaining  payment,  and  to  render  the  debt  of  less  value, — as  where  an  attorney 
takes  the  debtor's  note  for  the  debt  to  himself,  secured  by  a  mortgage,  contrary  to  the 
creditor's  directions, — is  liable  to  his  employer  in  an  action  on  the  case,  though  the 
debtor  always  has  been  and  still  is  able  to  pay  the  debt.  Wilson  v.  Coffin,  2  Cush.  316. 
If  an  attorney,  who  has  commenced  a  suit  which  is  alleged  to  be  malicious,  knew  that 
there  was  no  cause  of  action,  dishonestly,  and  for  some  sinister  view,  for  some  ill  purpose, 
or  for  some  purpose  of  his  own,  which  the  law  calls  malicious,  causes  a  party  to  be  arrested 
and  imprisoned,  he  will  be  liable  therefor.  Burnap  v.  Mash,  13  111.  535.  When  a  person 
places  a  note  in  the  hands  of  an  attorney  for  collection,  and  takes  from  him  a  receipt  for 
it  in  his  own  name,  but  does  not  claim  it  as  his  own,  nor  any  lien  upon  it,  and  the  note 
itself  is  payable  to  a  third  person,  and  not  indorsed,  a  payment  by  an  attorney  of  the 
proceeds  of  the  note  to  the  payee,  will  discharge  him  from  all  liability  to  the  person  who 
placed  the  note  in  his  hands.  I'eck  v.  Wallace,  19  Ala.  219.  When  an  attorney  died  twelve 
days  before  the  return  day  of  an  execution,  in  a  case  where  real  estate  has  been  attached  by 
the  original  writ,  without  having  levied  the  attachment,  and  the  attachment  not  being 
Bubsequently  levied,  was  lost;  it  was  held,  that  the  attorney  was  not  lialile  for  damages  for 
the  loss  of  the  attachment.  Holmes  v.  Beck,  1  Rhode  Island,  242.  When  an  attorney  takes 
the  responsibility  of  dismissing  a  suit  on  receiving  in  payment  claims  on  other  parties,  he 
renders  himself  liable  for  the  amount  of  the  claim  on  which  the  action  dismissed  was 
founded,  unless  he  proves  that  a  judgment  on  that  claim  would  have  been  of  no  value. 
Coopwood  V.  Baldwin^  25  Miss.  129. 


85  OF  THE  DISABILITIES,  AND 

not  demand  a  fee  for  it ;  the  attorney  may  demand  a  compensation ;  but 
neither  of  them  ought  to  be  charged  with  the  debt  for  a  mistake.  Not 
only  counsel,  but  judges  may  differ,  or  doubt,  or  take  time  to  consider : 
therefore  an  attorney  ought  not  to  be  liable,  in  cases  of  reasonable  doubt." 
But  in  ordinary  cases,  if  an  attorney  be  deficient  in  skill  or  care,  by  which 
a  loss  arises  to  his  client,  he  is  liable  to  a  special  action  on  the  case  for 

damages.(</)[A]  And  the  court,  in  some  instances,  will  order  an 
[  *86  ]    attorney  to  *pay  costs  to  his  own  client,  for  neglect  ;{aa)  or  to  the 

opposite  party,  for  vexatious  and  improper  conduct. (55)  So,  if 
an  attorney  obtain  a  rule  nisi,  upon  suggestions  which  turn  out  to  be 
groundless,  the  court,  in  discharging  the  rule,  will  make  him  pay  the  costs 
of  the  application. (c(?)  And  if  a  rule  be  made  upon  an  attorney,  for  the 
delivery  of  writings,  or  payment  of  costs,  &c.,  and  it  be  not  obeyed,  the 
courts  will  enforce  it  by  attachment :  which  is  also  the  regular  mode  of 
proceeding  against  an  attorney,  for  the  non-performance  of  his  under- 
taking to  put  in  ha.i\,{dd)  &c.  It  is  not  usual,  however,  for  the  court  to 
interfere  in  a  summary  way,  for  a  mere  breach  of  promise,  where  there  is 

(ff)  2  Wils.  325.     8  Moore,  340.     1  Bing.  347,  S.  C. 

(aa)  Say.  Rep.  50,  172.     3  Taunt.  484,  and  see  4  Moore,  171. 

(bb)  2  Bur.  654,  and  see  Hul.  Costs,  2  Ed.  485,  &c.  4  Durnf.  &  East,  371.(6)  3  Taunt. 
492.     1  Chit.  Rep.  44,  80.     5  Barn.  &  Aid.  533.     1  Dowl.  &  Ryl.  142,  S.  C.     3  Bing.  423. 

(cc)  4  Taunt.  191. 

{dd]  R.  M.  1654,  ^  10,  K.  B.  R.  M.  1654,  §  13,  C.  P.  6  Mod.  42,  86.  1  Durnf.  &  East, 
422,  and  see  Cowp.  845.  4  Taunt.  881.  5  Barn.  &  Aid.  482.  1  Barn.  &  Cres.  160.  2  Dowl. 
&  Rjl.  307,  S.  C.  3  Barn.  &  Ores.  597.  5  Dowl.  &  Ryl.  389,  S.  C.  3  Bing.  70.  10  Moore, 
360,  S.  C.  but  see  8  Moore,  208. 

[a]  Perhaps,  whenever  an  attorney  disobeys  the  lawful  instructions  of  his  client,  and  a 
loss  ensues,  he  is  responsible  for  that  loss  to  its  actual  extent.  Gilbert  v.  Williams,  8  Mass. 
51.  But  he  is  not  liable  in  damages,  where  he  acts  honestly,  and  to  the  best  of  his  ability. 
Lynch  v.  Commonwealth,  16  S.  &  R.  368.  See  remarks  in  this  case  per  Huston,  J.,  p.  369, 
It  has  been  held  that  the  negligence  of  the  attorney  of  the  defendant  is  not  a  sufficient  cause 
for  setting  aside  a  judgment  against  him.  Foster  v.  Jones,  1  M'Cord,  116.  But  irregularities 
which  arise  from  the  neglect  of  attorneys  will  be  corrected  in  the  discretion  of  the  Court. 
See  page  161,  note  [a].  And  a  party  who  suffers  injury  by  an  attorney's  appearing  for  him 
without  authority,  has  a  remedy  by  action.  Field  v.  Gibbs,  Peters,  C.  C.  155.  Smith  v. 
Bowditch,  7  Pick,  138.  Whenever  a  sworn  attorney  of  the  court  enters  his  appearance  for 
a  party,  the  latter  is  bound  by  any  admission  made  by  him,  in  writing,  though  out  of  court, 
concerning  the  facts  in  the  cause,  until  the  appearance  is  withdrawn,  or  the  party  revokes 
the  attorney's  authority  and  gives  notice  of  the  revocation.  Until  the  appearance  is  with- 
drawn or  the  authority  revoked,  and  the  revocation  notified,  the  party  cannot  give  evi- 
dence, on  the  trial  of  the  cause,  that  the  attorney  had  no  authority  in  fact.  Lewis  v.  Sumner, 
13  Met.  269. 

Extent  op  Liability. — An  attorney  who  may  be  chargeable  for  negligence,  is  liable 
only  to  the  extent  of  the  injury  his  client  has  received.  Suydam  v.  Vance,  2  M'Lean,  99. 
As,  if  he  is  employed  to  defend  a  suit,  and  fail  to  do  so,  he  is  liable  to  the  party  injured,  to 
the  extent  of  the  damages  actually  suffered  ;  if  he  can  show  that  the  defence  he  was 
employed  to  make  was  not  a  good  one,  he  would  be  liable,  at  most,  only  to  nominal 
damages.  Grayson  v,  Wilkinson,  5  Smedes  &  Marsh.  268.  See  preceding  note.  An  attor- 
ney is  not  chargeable  with  interest  on  the  moneys  of  his  principal,  unless  he  is  in  default, 
or  has  employed  the  money  for  the  purpose  of  gain  to  himself.  Williams  v.  Storrs,  6  Johns, 
Ch.  353,  Roots  v.  Stone,  2  Leigh,  680.  Though  where  he  is  chargeable  with  negligence, 
his  contract  is  violated,  and  an  action  lies  immediately,  though,  probably,  in  that  event, 
only  nominal  damages  could  be  proved  or  recovered;  on  the  other  hand,  the  proof  of 
actual  damage  may  extend  to  facts  growing  out  of  the  injury,  even  up  to  the  day  of  the 
verdict.  Wilcox  v.  Flummer,  4  Pet.  172.  Stevens  v.  White,  2  Wash.  203.  Palmer  v.  Ashley, 
3  Pike,  75.  And  although  liable  for  the  debt  lost  by  his  negligence,  he  is  not  of  course 
liable  for  the  loss  of  the  evidence  of  the  debt;  and  in  a  suit  against  him  for  such  a  loss, 
he  may  show  that  the  plaintiff  had  another  remedy,  which  he  has  successfully  pursued. 
Huntington  v.  Rummill,  3  Day,  390. 


OF  ATTORNEYS.  86 

nothing  criminal  •,{c)  or  on  account  of  negligence  or  unskilfulness.(/) 
except  it  be  very  gross  ;{g)  or  for  the  misconduct  of  an  attorney,  inde- 
pendently of  his  profession. (7t) 

It  was  formerly  tlie  duty  of  attorneys  to  appear  personally,  in  the  King's 
Bench,  on  or  before  the  fourteenth  day  of  Michaelmas  term,  and  the 
seventh  day  of  every  other  term  -.{i)  and  they  are  required,  when  called 
upon,  to  attend  the  court  on  motions,(/c)  the  judges  on  summonses,  and 
the  master  on  appointments. (?)  And,  on  every  appointment  to  be  made 
by  the  master,  the  party  on  whom  the  same  shall  be  served,  shall  attend 
such  appointment,  without  waiting  for  a  second  ;  or  in  default  thereof,  the 
master  shall  proceed  ex  i)arte  on  the  first  appointment. (??i) 

When  an  attorney  once  appears,  or  undertakes  to  be  attorney  for  another, 
he  shall  not  be  permitted  to  withdraw  himself ;(«)  and  it  is  said  to  be  his 
duty  to  proceed  in  the  suit,  although  his  client  neglect  to  bring  him 
money  :[a]  and  therefore  if,  on  that  account,  he  neglect  to  proceed,  accord- 
ing to  the  practice  of  the  court,  whereby  judgment  of  iionp7-os  is  signed 
against  the  plaintiff,  the  court  will  make  a  rule  upon  the  attorney  to  pay 
the  costs  of  such  judgment,  together  with  the  costs  of  the  application. (o) 
It  is  even  said  to  have  been  determined,  in  the  Common  Pleas,  that  an 
attorney  having  quitted  his  client  before  trial,  could  not  bring  an  action 
for  his  bill.(|>)  So,  in  Chancery,  it  has  been  holden,  that  a  solicitor  pro- 
ceeding to  a  certain  length  in  a  cause,  shall  not  leave  it  there, 
but  shall  go  *on  :(a)  And,  in  that  court,  a  solicitor  having  de-  [  *87  ] 
clined  to  act  for  his  client,  has  no  lien  for  his  costs  upon  a  fund 
in  court. (6) 

When  ivritings  come  to  an  attorney's  hands,  in  the  way  of  his  business 
as  an  attorney,  the  court  on  motion  will  make  a  rule  upon  him,  to  deliver 
them  back  to  the  party,(c)  on  payment  of  what  is  due  to  him  ;(t^)  and  par- 
ticularly when  he  has  given  an  undertaking  to  re-deliver  them  -.[ee)  And  an 
attorney,  when  ordered  to  deliver  up  the  papers  of  his  client,  must  deliver 
up  the  drafts  and  copies  of  deeds,  for  which  he  has  charged  and  been  paid, 
as  well  as  the  deeds  themselves.  7  Barn.  &  Cres.  528.  1  Man.  &  Ryl. 
306,  S.  C.  But  when  they  come  to  his  hands  in  any  other  manner,  or  on 
any  other  account,  the  party  must  resort  to  his  action. (^)  And  accord- 
ingly, in  a  late  case,((/^)  the  court  refused  to  proceed  summarily  against  a 

(f)  2  Wils.  371,  and  see  2  Moore,  665.     1  Bing.  102,  105. 

(/)  4  Bur.  2060.  2  Blac.  Rep.  780.  1  Chit.  Rep.  051,  but  see  3  Atk.  568.  1  Chit.  Rep. 
651,  2.  [a).  [g)  Say.  Rep.  50,  109. 

(/()  But  see  4  Barn.  &  Aid.  47.     2  Chit.  Rep.  68.     1  Bing.  91. 

(t)  K.  M.  1054,  I  1.  R.  T.  14  Car.  II.  reg.  2,  K.  B.  R.  M.  15  Eliz.  g  1.  R.  M.  1054,  §  1 
R.  E.  12  Jac.  I.  I  4.     R.  H.  14  &  15  Car.  II.  reg.  2,  C.  P. 

{k)  R.  E.  1656.     R.  E.  14  Car.  II.  K.  B.  (/)  R.  H.  14  &  15  Car.  II.  reg.  1,  K.  B. 


(m)  R.  H.  32  Geo.  III.  K.  B.     4  Durnf.  &  East,  580.  (n)  1  Sid.  31. 

h)  Say.  Rep.  173,  but  see  Man.  Ex.  Pr.  585,  6.  \p)  14  Ves.  272,  3. 

(a)  14  Ves.  190.  (6)  Id.  271,  and  see  1  Swanst.  1,  3  Swanst.  93. 

(c)  1  Salk.  87.     1  Chit.  Rep.  98. 

(d)  Say.  Rep.     1  Ken.  129,  S.  C.  and  see  6  Ves.  425,  in  Chan. 

[ee)  1  Str.  621.     8  Mod.  339,  S.  C.  {ff)  1  Salk.  87. 

{gg)  6  East,  404.     2  Smith  R.  409,  S.  C. 

[a]  Neither  will  an  attorney  be  allowed,  during  the  pendency  of  a  cause,  to  extort  from 
his  client  unreasonable  compensation  for  his  services,  though  after  the  cauje  is  ended  the 
court  will  not  interfere  in  respect  to  any  compensation  which  the  client  may  make.  I'hillipt 
V.  Overton,  4  Hay.  291.  Lecatt  y.  Sallee,  3  Porter,  115.  BM  v.  SmiCk,  1  Dana,  580.  Hose 
y.  Mynait,  7  Yerg.  30. 

Vol.  I.— 7 


87  OF  THE  MISBEHAVIOUR  OF  ATTORNEYS,  ETC. 

ste'^vard,  who  "was  an  attorney,  to  compel  him  to  account  before  the  master, 
for  receipts  and  payments  in  respect  of  a  mortgaged  estate,  and  to  pay  the 
balance  to  his  employer,  and  deliver  up  on  oath  all  deeds,  writings,  &c., 
relative  to  the  estate  ;  this  being  the  proper  subject  of  a  bill  in  equity,  and 
not  a  case  for  a  mandmnus,  to  compel  a  steward  of  a  manor  to  deliver  up 
court  rolls,  &c.  So  the  court  would  not  compel  an  attorney,  upon  a  sum- 
mary application,  to  deliver  up,  on  payment  of  his  demand,  a  lease  put  into 
his  hands,  for  the  purpose  of  making  an  assignment  of  it ;  there  being  no 
cause  in  court,  nor  any  criminal  conduct  imputed  to  him  in  respect  of  it  :(A) 
Nor  will  they  make  an  order  on  an  attorney,  to  deliver  up  a  deed,  which 
he  holds  as  party  and  trustee. (z)  And  where  an  attorney  had  deeds,  &c., 
in  his  custody,  of  two  co-defendants,  the  court  of  Common  Pleas  would  not 
refer  it  to  the  prothonotary,  to  ascertain  which  of  them  he  should  deliver 
over  to  one  defendant,  on  his  paying  the  attorney's  debt  and  costs. (A;) 
When  something,  however,  is  to  be  done,  for  which  a  mandamus  would 
lie,  as  the  giving  up  of  court  rolls,  &c.,  the  court  will  entertain  a  summary 
jurisdiction  over  an  attorney,  in  obliging  him  to  deliver  them  up,  on  satis- 
faction of  his  lien  '.{I)  And  if  a  third  person  appear  to  be  interested  therein, 
the  court  will  take  a  security,  from  the  person  to  whom  they  are  delivered, 
to  produce  them  on  demand,  for  the  inspection  of  such  third  person. (?) 
And  where  the  employment  of  an  attorney  is  so  connected  with  his  pro- 
fessional character,  as  to  afford  a  presumption  that  his  employment  was  in 
consequence  of  that  character,  the  court  will  interfere  in  a  summary  way,  to 
compel  him  faithfully  to  execute  the  trust  reposed  in  him :  Therefore,  where 
an  attorney  was  employed  by  A.  to  collect  and  get  in  the  effects  due  to  him 
as  administrator  of  another  person,  the  court  compelled  the  attorney  to  ren- 
der an  account  to  the  executors  of  A.,  of  the  moneys,  &c.,  received  by  him, 
although  he  had  never  been  employed  by  A.  or  his  executors,  to  conduct 

any  suit,  in  law  or  equity,  on  his  or  their  behalf. (w)     The  court 
[  *88  ]    has  also,  we  have  *seen,(a)  a  summary  jurisdiction  over  matters 

in  difference  between  attorneys  and  their  clerks. 
For  the  reformation  and  punishment  of  abuses  in  general,  there  is  an  old 
rule  of  court,(6)  which  has,  however,  fallen  into  disuse,  that  a  jury  of  able 
and  credible  officers,  clerks,  and  attorneys,  shall  be  impanelled  once  in  three 
years,  and  sworn  to  inquire ;  1.  Of  the  points  usually  inquirable  by  the  writ, 
viz :  falsities,  contempts,  misprisions,  and  offences :  2.  Of  such  who  have 
been  admitted  attorneys  or  clerks,  and  are  notoriously  unfit;  their  names  to 
be  presented  to  the  court,  and  they  to  be  punished  or  removed,  as  the  case 
shall  require :  3.  Of  new  or  exacted  fees,(c)  and  of  those  that  have  taken 
them,  under  whatsoever  pretence;  and  to  prepare  and  present  a  table  of  the 
due  and  just  fees,  that  the  same  may  be  fixed  and  continue  in  every  office; 
and  likewise  for  the  Marshalsea  and  Fleet  prisons :   And  that  some  persona 

(h)  8  East,  237.  (0  5  Taunt.  364. 

(k)  7  Taunt.  391.    1  Moore,  99.  S.  C. 

{I)  3  Durnf.  &  East,  275,  and  see  2  Blac.  Rep.  912.  5  Taunt.  206.  6  Taunt.  105. 

[m)  4  Barn.  &  Aid.  47,  and  see  2  Chit.  Rep.  68.  7  Moore,  437.  1  Bing.  91,S.C. 

[a)  Ante,  68. 

(6)  R.M.I  654,  ^  3,K.  B.  &C.  P.,and  see  R.  E.  9  Eliz.  C.  P.,  which  contains  the  writ  to  sum- 
mon the  jury,  and  lord  chief  justice  Dyer's  charge  thereon. 

(c)  As  to  the  fees  of  attorneys  and  officers  of  the  court,  see  R.  T.  35  H.  VI.  |  5,  6,  7,  8,  R.  M. 
6  &  7  Eliz.  g  1,2.  R.M.  15  Eliz.  §  5,  6, 11,  12, 13.  R.  H.  14  J'ac.  I.  rc^.  2,  ?  1.  R.M.  17/ac.I. 
C.  P.  See  also  stat.  3  Geo.  IV.  c.  69,  to  enable  the  judges  of  the  several  courts  of  record  at 
Westminister,  to  make  regulations  respecting  the  fees  of  the  officers,  clerlis,  and  ministers  of 
the  said  courts.  3  Dowl.  &  Ryl.  602. 


OF  TUE  MISBEHAVIOUR  OF  ATTORNEYS,  ETC.  88 

be  enjoined  and  sworn  to  give  evidence,  viz.  some  clerks  of  the  courts,  and 
some  attorneys  in  every  county,  not  excluding  others. 

When  an  attorney  is  charged  by  affidavit,  Avith  any  fraud  or  malpractice 
in  his  profession,  contrary  to  the  obvious  rules  of  justice  and  common 
honesty,  the  court,  on  motion,  will  order  him  to  answer  the  matters  of  the 
affidavit  ;[a]  and,  in  general,  if  he  positively  deny  the  malpractices  imputed 
to  him,  they  will  dismiss  the  complaint ;  but  otherwise  they  will  grant  an 
attachment. (c?)  And  where  an  attorney,  required  to  answer  the  matters  of 
an  affidavit,  swore  in  his  exculpation  to  an  incredible  story,  the  court  of 
King's  Bench  granted  an  attachment  against  him,  though  he  positively  de- 
nied the  malpractices  with  which  he  was  charged. (c)  And  where  an  attor- 
ney had  behaved  himself  in  such  a  manner,  as  to  afford  reasonable  ground 
for  thinking  that  he  had  misconducted  himself  in  his  professional  character, 
although  it  turned  out,  upon  investigation,  that  there  was  no  sufficient  ground 
for  imputing  actual  misconduct  to  him,  the  court  would  not  give  him  his 
costs  of  the  application. (/)  But  the  court  will  not  call  upon  an  attorney 
summarily,  to  answer  the  matters  of  an  affidavit,  charging  him  with  an  in- 
dictable offence ;  but  will  leave  the  parties  complaining  to  prosecute  for  the 
same.(<7)  I^  bas  been  doubted,  whether  the  affirmation  of  a  Quaker  is 
admissible,  to  call  upon  an  attorney  of  this  court,  to  answer  the  matters  of 
an  affidavit  :(A)  and  the  true  distinction,  to  be  collected  from  all  the  cases 
upon  the  subject,  seems  to  be  this ;  that  if  the  object  of  the 
*suit  or  proceeding  be  to  recover  a  debt,  or  to  give  to  a  party  any  [  *89  ] 
legal  civil  right,  the  affirmation  of  a  Quaker  is  admissible ;  and 
actions  on  penal  statutes  are  to  be  considered  as  actions  for  debts  ;  but  that 
where  the  object  is  not  to  give  to  the  party  any  legal  civil  right,  but  to 
punish  a  person  who  has  done  something  wrong,  the  affirmation  of  a 
Quaker  is  not  admissible. (a)  In  the  Common  Pleas,  if  an  attorney  do 
any  thing  wrong,  quatenus  an  attorney,  in  an  inferior  court,  the  court  will 
oblige  him  to  answer  the  complaint. (?>) 

When  an  attorney  has  been  fraudulently  admitted,(c)  or  convicted  (after 
his  admission,)  of  fe\ony,{d)  or  other  offence  which  renders  him  unfit  to  be 
continued  an  attorney, (cc)  or  has  knowingly  suffered  his  name  to  be  made  use 
of  by  an  unqualified  person, (^)  or  acted  as  agent  for  such  person, (^')  orhaa 
signed  a  fictitious  name  to  a  demurrer,  as  and  for  the  signature  of  a  barris- 

(d)  1  Chit.  Rep.  186,  and  see  Bac.  Abr.  tit.  .4«ornej/,n.  Append.  Chap.  III.  ?  19. 

(c)  6  Durnf.  &  East,  701.  (  f)  3  Dowl.  &  Ryl.  22G. 

(g)  1  King.  102.    7  Moore,  424,  S.  C.    1  Ring.  142.  (//)  1  Do-svl.  &  Ryl.  121. 

(a)  1  Dowl.  &  Ryl.  124,  per  liaijleij  J. 

(b)  2  Wils.  382,  and  see  3  Dowl.  &.  Ryl.  G02. 

(c)  2  Blac.  Rep.  091.   Antc,i)7.  (d)  Cowp.  829. 
(ee)  6  East,  143,  and  see  1  Chit.  Rep.  557,  in  notis.  [ff)  Ante,  73, 4. 

[a]  Attorneys  and  solicitors  are  public  ofBcers,  and  are  under  the  government  ot  the  seve- 
ral courts,  in  regard  to  their  behaviour  to  their  clients.  Mcrritt  v.  Lambert,  10  Paige,  352, 
affirmed,  Wallis  v.  Touhtt,2  Den.  607.  And  may  be  punished  for  uttering  slanderous  words. 
Kiiu/  V.  Wlicclrr,  7  Cow.  725.  It  seems  that  proceedings  on  motion  against  an  attorney  for 
monej'  collected,  is  no  bar  to  a  recovery  in  an  action  on  the  case  for  damages.  Corpund  v. 
Balcvin,  25  .Miss.  129.  The  removal  of  a  solicitor  from  his  office,  as  solicitor  of  the  court  of 
chancery,  for  malpractice,  dejirivcs  him  of  the  power  to  practise  as  solicitor,  attorney,  or 
counsel,  in  any  other  court.  .Matter  of  F'^ter.wii,  3  Paige,  C.  R.  510.  And  an  attorney  may 
be  removed  from  office,  or  suspended  from  practice  in  the  Common  Pleas  by  that  court,  on 
good  cause  shown ;  but  it  is  said  that  ignorance  of  the  law  is  not  a  good  cause.  Bryant'i 
Case,  4  Foster,  149. 


89 


OF  KE-ADMITTING  ATTORNEYS. 


ter  (aq)  ov  otherwise  grossly  misbehaved  himself,(7(7i)  the  court  will  order  him 
to  be  struck  off  the  roll.  If  an  attorney  practise,  after  he  has  been  convicted 
of  foro-ery,  perjury,  subornation  of  perjury,  or  common  barratry,  he  is  liable 
to  be  transported,  (z)  And  where  an  attorney  had  been  struck  off  the  roll 
of  the  court  of  King's  Bench,  on  the  report  of  the  master,  for  misconduct, 
the  court  of  Common  Pleas  on  motion,  supported  by  an  affidavit  of  the  mas- 
ter's report,  struck  him  off  the  roll  of  the  latter  court. (A;)  But,  in  a  subse- 
quent case,  the  rule  for  striking  him  off  the  roll  was  refused ;  the  contents  of 
the  afi&davits,  on  which  the  court  of  King's  Bench  acted,  not  having  been 
stated,  and  there  being  no  proof  or  allegation  that  the  attorney  had  been 
struck  off  for  a  misdemeanor. (?)  And  striking  an  attorney  off  the  roll  is 
not  always  understood  to  be  a  perpetual  disability ;  for  the  court  have  in 
some  instances  permitted  him  to  be  restored,  considering  the  punishment 
in  the  light  of  a  suspension  only,(m) 

An  attorney  may  also  be  struck  off  the  roll  at  his  own  instance,  as  for  the 
purpose  of  being  called  to  the  bar,(w)  &c. :  and  if  he  be  afterwards  desirous 
of  being  restored,  he  must,  if  called  to  the  bar,  first  apply  to  the  inn  of 
court  where  he  "was  called,  to  be  debarred  :(o)  But  an  attorney  cannot  be 
struck  off  the  roll  at  his  own  instance,  though  he  has  never  practised, 
without  an  affidavit  that  no  proceedings  are  pending  against  him.(^9)  The 
mode  of  re-admitting  an  attorney,  who  has  been  struck  off  the  roll  at  his 
own  instance,  is  pretty  much  the  same  with  that  of  re-admitting  him, 

when  he  has  not  taken  out  his  certificate,  which  has  been  already 
[   *90  ]  *treated  of.(«)     In  general,  he  must  satisfy  the  court  that  he 

ought  to  be  restored  •,(h)  and,  on  one  occasion, (c)  they  required 
the  like  notice  to  be  stuck  up,  and  entered  at  the  judge's  chambers,  as 
upon  an  original  admission :  The  court  will  also  make  him  consent  to 
take  no  advantage  of  his  privilege,  in  any  action  then  depending. (<i)  But 
the  statute  37  Geo.  III.  c.  90,  §  31,  being  confined  to  attorneys  who  have 
neglected  to  take  out  their  certificates,  does  not  apply  to  those  who  have 
been  struck  off  the  roll  at  their  own  instance ;  and  of  course  the  latter 
may  be  re-admitted,  without  paying  any  fine  or  arrears  of  duty.(e) 

Igg)  4  Dowl.  &  Ryl.  738. 

(hh)  Potter's  case,  H.  26  Geo.  III.  K.  B.    Priddle's  case,  E.  27  Geo.  III.  K.  B. 
(i)  Stat.  12  Geo.  I.e.  29,  §  4.  (A;)  1  Brod.  &  Bing.  522.    4  Moore,  319,  S.  C. 

(l)  3  Brod.  &  Bing.  257.    7  Moore,  64,  S.  C.  Ante,  67. 

(m)  1  Blac.  Rep.  222.    The  like  was  done  by  the  court,  in  Trin.  37  Geo.  III.  K.  B.  ^ 
(n)  Append.  Chap.  III.  §  21,2. 
(o)  Doug.  114. 

(p)  1  Chit.  Rep.  557,  in  notis,  and  see  id.  692.    6  Ves.  11.    8  Ves.  33.   Append.  Chap.  III. 
2  21  («)  ^«^^J  ^9. 

lb)  Ex  parte  Samhridge,  T.  25  Geo.  III.  K.  B.,  and  see  1  Chit.  Rep.  692. 
(c)  Ex  parte  raughan,K  45  Geo.  III.  K.  B.  Ante,  79.  (d)  Doug.  114.   Barnes,  42. 

(e)  2  Barn.  &  Aid.  315,  (a). 


OF  PROSECUTION,  ETC.  *91 


♦CHAPTER   IV. 

Of  the  Means  of  commencing  personal  Actions,  in  the  King's  Bench, 
Common  Pleas,  and  Exchequer  ;  and  the  Prosecution  and  Defence 
of  them  in  Person,  or  by  Attorney:  and  0/ Paupers,  and  Infants. 

The  means  of  commencing  personal  actions,  in  the  court  of  King's 
Bench,  conformable  to  its  jurisdiction, (aa)  are — 

I.  Bj  Original  Writ  ; 

1.  Against  common  Persons. 

2.  Against  Peers  of  the  Realm,  and  Members  of  the  House 
of  Commons. 

3.  Against  Corporations,  and  Hiindredors. 
II.  By  Bill  of  Middlesex,  or  Latitat. 

III.  By  Attachment  of  Privilege,  at  the  suit  of  Attorneys,  and  Officers 

of  the  Court. 

IV.  By  Bill; 

1.  Against  Members  of  the  House  of  Commons. 

2.  Against  Attorneys,  and  Officers  of  the  Court. 

3.  Against  Prisoners,  in  custody  of  the  Marshal,  or  Sheriff, 
&c. 

In  the  Common  Pleas,  the  means  of  commencing  personal  actions,  are 
first,  by  original  writ,  issuing  out  of  Chancery ;  which  is  either  a  special 
original,  adapted  to  the  nature  of  the  action,  or  a  common  original,  in 
trespass  quare  clausum  f regit :  The  former,  though  it  may  be  had  in  any 
case,  is  only  necessary  in  the  first  instance  against  peers,  corporations, 
and  hiindredors  ;  the  latter,  not  requiring  personal  service,  is  sometimes 
used,  when  the  defendant  keeps  out  of  the  way,  so  that  he  cannot  be 
arrested,  or  personally  served  with  process :  Secondly,  by  capias  quare 
clausum  fregit,  founded  on  a  supposed  original,  which  is  the  common 
mode  of  commencing  actions  in  this  court,  and  answers  to  the  bill  of 
Middlesex  or  latitat  in  the  King's  Bench:  Thirdly,  by  attachment  of 
privilege,  at  the  suit  of  attorneys  and  officers  of  the  court :  Fourthly,  by 
bill,  which  is  twofold ;  first,  against  attorneys  and  officers ;  and  secondly, 
against  members  of  the  house  of  commons. (6)  It  has  been  said,  that  if  a 
man  be  in  the  Fleet,  a  plaintiff  may  have  a  bill  of  debt  against 
him,  in  the  same  manner  as,  in  *the  King's  Bench,  against  a  man  [  *02  ] 
in  custody  of  the  marshal  ;(a)  though  Fitzherbert  adds,  that  it 
was  not  usual.  In  practice,  actions  against  prisoners  in  custody  of  the 
warden  of  the  Fleet,  are  commenced  in  the  same  manner  as  those  against 
other  persons,  by  original  writ. 

In  the  Exchequer,  the  means  of  commencing  personal  actions  are  first, 
by  venire  facias  ad  respondendum,{bb)  which  is  in  nature  of  an  original 

{aa)  Ante,  37. 

(6)  2  Ld.  Raym.  1442,  per  Strange,  arg.,  and  see  the  case  of  Dawkins  v.  Burridje,  id.  ibid.  2 
Str.  734,  S.  C.    Ante,  38. 

(a)  Fitz.  Abr.  tit.  Bill,  18,  3  H.  6,26,  and  see  3  Bos.  &  Pul.  12,  (a). 
{bb)  Append.  Chap.  VIIL  g  76,  &c. 


g2  OF  THE  PROSECUTION,  ETC., 

•writ '  and  ^vas  the  process  used  at  common  law,  against  persons  having 
privileo-e  of  parliament  :(c)  Secondly,  "hy  subpoena  ad  res])ondendum,{d) 
which  is  a  process  directed  to  the  defendant,  anologous  to  the  subjycena  in 
Chancery,  or  on  the  equity  side  of  the  Exchequer:  Thirdly,  by  quo 
minus  capias,{e)  which  answers  to  the  bill  of  Middlesex  or  latitat  in  the 
King's  Bench,  and  capias  quare  clausum  fregit  in  the  Common  Pleas : 
Fourthly,  by  venire  faeias,{f)  or  capias  of  p>rivilege,{g)  at  the  suit  of 
attorncr/s  and  officers  of  the  court :  and  lastly,  by  hill,  which  is  threefold ; 
first,  against  attorneys  and  officers  ;{h)  secondly,  against  members  of  the 
house  of  commons,(i)  on  the  statute  12  &  13  W.  III.  c.  3,  §  2 ;  and 
thirdly,  against  p>riso7iers,{k)  in  custody  of  the  sheriff,  &c.,  or  warden  of 
the  Fleet.{l)  In  an  inferior  court,  it  is  no  ground  of  error,  upon  a  judg- 
ment after  verdict,  that  the  plaint  was  levied  before  the  cause  of  action 
accrued  :{m)  But  it  seems  that  a  custom  to  issue  a  summons  and  attach- 
ment at  the  same  time,  is  bad  in  law.(7^) 

In  the  prosecution  and  defence  of  personal  actions,  the  parties  must 
appear  in  perso7i,  or  by  attoryiey  :  or,  in  case  of  infancy,  by  prochein  amy 
or  guardian. 

At  common  law,  the  plaintiff  and  defendant  must,  in  general,  have 
appeared  in  person :  and  could  not  have  appeared  by  attorney,  without 
the  king's  special  warrant,  by  writ  or  letters  patent. (o)  But  a  corporation 
aggregate,  not  being  capable  of  a  personal  appearance,  could  only  have 
appeared  hj  attorney,  appointed  under  their  common  seal.(/:))  And  now, 
by  the  statute  of  Westm.  2,  (13  Edw.  I.)  c.  10,  a  general  liberty  is  given 

to  the  parties,  of  appearing  by  attorney.(^)  Yet  there  are  cer- 
[  *93  ]    tain  persons,  such  *as  feme  coverts,{a)   and  idiots,(b)  who,  for 

want  of  legal  discretion,  are  incapable  of  appointing  an  attor- 
ney ;  and  must  therefore  appear  in  person :  And  any  one  else,  if  he  think 
proper,  may  still  appear  and  prosecute  or  defend  his  suit,  in  the  same 
manner ;(c6')  which  is  usually  done  by  attorneys  and  prisoners.     A  plaintiff 

(c)  Man.  Ex.  Pr.  32. 

(d)  Append.  Chap.  VIII.  g  93,  &c. 

(e)  Id.  §  110, 11.  And,  for  the  entry  of  a  quo  minus,  with  the  sheriff's  retarn  of  non  est  in- 
ventus, and  award  of  alias,  see  id.  ^  112. 

(/)  Append.  Chap.  XIV.  §  15.  {g)  Id.  §  16. 

{h)  Id.  I  29,  30.  (e)  Post,  Chap.  VI.,  and  see  Man.  Ex.  Pr.  Chap.  V. 

(k)  Append.  Chap.  XV.  |  23,  4. 

(l)  See  further,  as  to  the  means  of  commencing  personal  actions  in  the  Exchequer,  Steph. 
PI.  53,  4;  59,60. 

(m)  3  Barn.  &  Aid.  605,  but  see  Doug.  61. 

(n)  3  Barn.  &  Cres.772.    5  Dowl.  &  Ryl.  719,  S.  C. 

(o)  Co.  Lit.  128,  a.  2  Inst.  249,  378.  F.  N.  B.  25.  1  Mod.  244.  2  Mod.  83,  S.  C,  and  see 
Steph.  PI.  Append,  ix.  x. 

(p)  Bro.  Abr.  tit.  Corporation,  28.  Co.  Lit.  66,  b.  Com.  Dig.  tit.  Pleader,  2  B.  2.  But  see 
the  Mayor  of  T/ietford's  case,  1  Salk.  192,  wherein  it  was  laid  down  by  Holt,  Ch.  J.,  that 
though  a  corporation  cannot  do  an  act  in  pais,  without  their  common  seal,  yet  they  may  do 
an  act  upon  record :  and  that  is  the  case  of  the  city  of  London,  every  year,  who  make  an 
attorney  by  warrant  of  attorney  in  the  King's  Bench,  without  either  sealing  or  signing :  the 
reason  is,  because  they  are  estopped  by  the  record,  to  say  it  is  not  their  act.  And  see  Man. 
Ex.  Pr.  3. 

(?)  Gilb.  C.  P.32,3.    2  Inst.  376,  F.  N.  B.  25.    Ante,  60.  (a)  3  Taunt.  261. 

{b)  Co.  Lit.  135,  b,  2  Inst.  390,  F.  N.  B.  27,  but  see  2  Wms.  Saund.  5  Ed,  335,  where  an  idiot 
appeared  by  her  friend,  and  assigned  for  error,  that  being  an  idiot,  she  had  previously  ap- 
peared and  defended  the  action  by  attorney :  And  note,  in  Co.  Lit.  135,  b,  it  is  said,  that  the 
suit  by  idiots,  &c.,  must  be  in  their  name,  but  shall  be  followed  by  others.  Lunatics,  it  is 
said,  if  under  age,  must  appear  by  guardian  :  if  of  full  age,  by  attorney.  4  Co.  124,  b,  and 
Bee  Bac.  Abr.  tit.  Idiots  and  Lunatics,  G.  2  Wms.  Saund.  5  Ed.  333,  (4). 

(cc)  Say.  Rep.  217. 


BT  ATTORNEY.  93 

may  sue,  in  the  Common  Pleas,  upon  a  penal  statute,  in  Lis  O'wu  name, 
without  an  attorney;  and  putting  '-'•  plaintiff ' s  attorney"  after  his  name,  in 
the  notice  on  the  process,  is  no  irregularity,  being  only  in  compliance 
with  the  5  Geo.  11.  c.  27,  §  ^.{d) 

Attorneys  were  anciently  appointed  in  court,  when  actually  present :(e) 
but  they  are  now  usually  appointed  out  of  court,  by  ivarrant  of  attor- 
ney ;(/)  which  should  regularly  be  in  writing;  but  an  authority  hy  parol 
is  said  to  be  sufficient  to  support  a  judgment  ;(_^)  and  even  if  an  attorney 
appear  without  warrant,  it  is  a  good  appearance  as  to  the  court,  though  he 
is  liable  to  an  action. (7t)  So,  after  an  order  of  nisi  ])r ins  had  been  made  to 
refer  a  cause  to  arbitration,  with  the  consent  of  the  defendant's  counsel  and 
attorney  the  court  of  Common  Pleas  would  not  set  it  aside,  on  an  affidavit 
by  the  defendant,  expressly  denying  his  authority  to  refer. (i)  And  where 
an  authority  was  given  to  an  attorney,  to  protect  the  defendant  from  arrests, 
and  before  it  was  countermanded,  the  attorney  gave  an  undertaking  to  put 
in  bail  for  the  defendant,  the  court  would  not  set  aside  the  proceedings,  on 
behalf  of  the  latter,  although  he  disclaimed  the  authority  of  the  attorney. (/c) 
It  seems,  however,  that  when  an  action  is  brought  by  an  attorney,  without 
proper  authority,  the  court  will  set  aside  the  proceedings;  for  otherwise  the 
defendant  might  be  twice  charged. (Z)  And  where  an  attorney  appears 
without  warrant,  the  court  will  set  aside  a  judgment  entered  against  the 
defendant,  if  the  attorney  be  not  responsible ;  for  otherwise  the  defend- 
ant could  have  no  remedy  against  him.(w) 

The  warrant  of  attorney  continues  in  force  until  the  judgment,  and  for  a 
year  and  a  day  afterwards,  in  order  to  have  execution,  &c.(w)  unless  it  be 
sooner  countermanded  by  the  order  of  the  principal,  or  determined  by  the 
death  of  the  attorney.  And  a  defendant,  having  appeared  to  the  action  by 
one  attorney,  cannot,  in  the  same  cause,  make  any  application  to  the  court 
by  another,  without  having  obtained  an  order  for  changing  his  attorney.(o) 
But  a  warrant  of  attorney  for  the  plaintiff,  in  the  action  against 
the  *principal,  cannot  extend  to  a  scire  facias  against  the  bail,(a)  [  *94  ] 
or  to  revive  the  judgment,(5)but  there  must  be  a  new  warrant  of 
attorney ;  because  this  is  a  new  cause,  and  different  record.  And,  as  a  scire 
facias  is  a  new  action,  it  may  be  sued  out  by  a  new  attorney,  without  leave 
of  the  court  for  changing  the  attorney,  or  giving  notice  that  the  old  attorney 
is  changed. (e)  So  the  defendant  in  the  original  action  need  not  obtain  a 
judge's  order  to  change  his  former  attorney,  upon  bringing  a  writ  of 
error.(cZ)  And  the  plaintiff,  in  the  Common  Pleas,  may  sue  out  execution 
by  a  different  attorney  from  the  attorney  in  the  cause,  without  obtaining 
an  order  of  court  for  changing  the  attorney. (g) 

When  an  attorney  having  been  retained  to  defend  a  cause,  has  undertaken 
to  appear,  the  defendant  is  not  allowed  to  countermand  the  appearance,  after 

(d)  2  H.  Blac.  600.  (c)  1  Wils.  39. 
(/)  Steph.  n.  32.    Append.. Chap.  IV.  g  1,  2. 

(y)  2  Keb.  190.    1  Lil.  Pr.  134,  137.  (A)lKeb.89. 

(i)  3  Taunt.  48G,  and  see  1  Salk.  86.  1  Chit.  Rep.  142. 

(k)  1  Chit.  Rep.  193. 

(l)  1  Durnf.  &  East,  62.    1  Chit.  Rep.  194.  (m)  1  Salk.  88.    6  Mod.  IG,  S.  C. 

(n)  2  Inst.  378.    Gilb.  Exec.  92,  3.    Run.  Eject.  2  EJ.  428.    2  Bos.  &  Pul.  357,  (6j. 

(o)  1  Barn.  &  Cres.  G54. 

(a)  1  Salk.  89.    2  Salk.  603.    2  Ld.  Raym.  1252,  3,  S.  C. 

(b)  Cro.  Eliz.  177.    2  Ld.  Raym.  1043. 

(c)  Say.  Rep.  218.  (d)  7  Durnf.  &  East,  337. 

(e)  2  Bos.&  Pul.  357. 


94  or  THE  PROSECUTION,  ETC., 

his  rctainer.(/)   But,  after  appearance,  he  may  change  his  attorney  by  rule 
of  court,  or  order  of  a  judge,  on  payment  of  what  is  due  to  him.{g)    For 
this  purpose,  a  summons  should  be  taken  out,  and  judge's  order  obtained 
thereon  ;(/i)  a  copy  of  which  order  should  be  served  on  the  opposite  attor- 
ney :  and  it  is  not  necessary,  on  changing  an  attorney,  to  file  a  new  war- 
va.nt.{i)     When  an  attorney  is  thus  changed,  the  attorney  newly  coming  in 
is  bound  to  take  notice  at  his  peril,  of  the  rules  to  which  the  former  attor- 
ney was  liable  :{k)  And  till  an  order  is  obtained,  the  opposite  party  and  his 
attorney  are  justified  in  considering  the  former  attorney  as  being  still  em- 
ployed ;  and  are  not  bound  to  take  notice  of  any  proceedings  in  the  name  of 
another  attorney:    Therefore,  payment  to  the  plaintiff's  late  attorney, 
changed  without  leave  of  the  court,  has  been  held  to  be  good  :{l)  and  notice 
of  justifying  bail,(w)  or  a  plea  put  in,(w)  by  a  new  attorney,  without  any 
order  for  changing  the  attorney  in  the  cause,  is  irregular ;  and  the  plaintiff 
is  not  bound  to  accept  such  notice  or  plea.   But  the  sheriff  or  his  bail  may 
put  in  and  justify  bail  above,  by  their  own  attorney. (o)     And  where  the 
defendant  is  a  prisoner,  notice  of  justification  may  be  given  by  a  new  attor- 
ney, without  an  order  for  changing  the  attorney  before  employed. (^;)    So, 
where  a  plea  had  been  put  in  by  a  new  attorney,  without  any  order  for 
changing  the  attorney,  it  was  holden  by  the  court  of  Common  Pleas,  that 
the  plaintiff  waived  the  irregularity,  by  taking  the  plea  out  of  the  office, 
and  keeping  it.(^)    And  a  party  called  upon  to  show  cause,  may 
[  *95  ]    oppose  the  rule  in  person,  after  an  order  has  been  obtained  *for 
changing  the  attorney,  although  a  copy  of  it  has  not  been  served 
on  the  opposite  party.(aa)    If  an  attorney  die,  pending  the  suit,  his  warrant 
is  determined  :(bb)  and  by  stat.  4  Hen.  IV.  c.  18,  the  justices  shall  make 
another  in  his  place:  In  such  case,  it  is  necessary  to  give  notice  to  the  op- 
site  party,  of  the  appointment  of  a  new  attorney,  before  any  proceedings 
can  be  taken  by  him  •,{c)  and  if  the  party  who  employed  him,  having  notice 
of  his  death,  will  not  appoint  another  attorney,  his  adversary  may  proceed 
in  the  action. (c?) 

At  common  law,  the  warrants  of  attorney  might  have  been  filed,  and 
entered  of  record,  at  any  time  before  judgment  :(e)  but  there  are  several 
acts  of  parliament,(/)  requiring  it  to  be  done  sooner,  under  severe  penal- 
ties. By  the  last  of  these  acts  it  is  provided,  that  "  the  attorney  for  the 
plaintiff  shall  file  his  warrant  of  attorney,  with  the  proper  officer,  the  same 
term  he  declares  ;  and  the  attorney  for  the  defendant,  the  same  term  he 
appears,  under  the  penalties  inflicted  by  former  laws."  Upon  this  act  of 
parliament,  the  court  of  King's  Bench  made  a  vu\e,{g)  "  that  the  defend- 
ant's attorney,  at  the  time  of  his  appearance,  shall  give  the  plaintiff's 

(/)  R.  M.  1654,  ^  10,  K.  B.    R.  M.  1654,  §  13,  C.  P.,  and  see  1  Chit.  Rep.  193.    Ante,  93. 

(V)  1  Lil.  P.  R.  134,  143.    8  Mod.  306.    12  Mod.  440. 

(h)  Append.  Chap.  IV,  §  6,  7.  (i)  1  Taunt.  44. 

(k)  R.  M.  1654,  §  10,  K.  B.    R.  M.  1654,  |  13,  C.  P.  (l)  1  Blac.  Rep.  8. 

(m)  2Blac.Rep.  1323.  Doug.  217.  6  Taunt.  532.  2  Marsh.  257,  S.  C.  7  Taunt.  48.  2  Marsh. 
365,  6,  S.  C. 

(w)  6  East,  549,  but  see  13  Ves.  161,  195,  in  Chan. 

(o)  7  Taunt.  48.  2  Marsh.  365,  6,  S.  C.  1  Chit.  Rep.  81.  2  Barn.  &  Aid.  604.  1  Chit.  Rep. 
329,  S.  C.  (p)  1  Chit.  Rep.  291. 

(g)  2  New  Rep.  C.  P.  509.  (aa)  4  Taunt.  669. 

(bb)  1  Lil.  P.  R.  141. 

(c)  1  Taunt.  342.  (d)  1  Lil.  P.  R.  137.  Sty.  P.  R.  13.  2  Keb.  275. 

(e)  41  Edw.  in.  1,  b,  but  see  1  Wils.  39. 

(/)  18  Hen.  VI.  c.  9.     32  Hen.  VIH.  c.  30,  ?  2,  3.  18  Eliz.  c.  14,  |  3.  4  &  5  Ann,  c.  16,  §  3. 

(g)  R.  M.  5  Ann,  2  K.B.,  and  see  R.  H,  2  &  3  Jac.  II.  C.  P. 


BY  ATTORNEY.  95 

attorney,  the  warrant  of  attorney  for  the  defendant ;  and  at  the  time  of 
delivering  the  copy  of  the  declaration,  or  taking  it  out  of  the  office,  when 
filed,  shall  pay /owr  pence  fur  the  said  warrant :  which  warrant  of  attorney 
the  plaintiff's  attorney  shall  file,  with  the  oflicer  appointed  for  filing  it,  at 
the  same  time  he  files,  or  ought  to  file,  the  warrant  of  attorney  for  the 
plaintiff.  And  if  the  defendant's  attorney  refuse  to  pay  the  same,  the 
plaintiff's  attorney  may  sign  judgment."  Notwithstanding  these  regula- 
tions, however,  it  has  been  determined,  that  the  warrants  of  attorney  may 
he  filed,  so  as  to  support  the  proceedings,  at  any  time  pendente  lite.,  or 
before  final  judgment ;  though  the  attorney  may  be  fined,  for  not  filing 
them  in  due  time. (A)  And  the  plaintiff,  in  the  King's  Bench,  cannot  now 
sign  judgment,  for  the  defendant's  refusing  to  pay/ow  pence  for  the 
warrant  of  attorney,  when  a  copy  of  the  declaration  is  delivered  to  \\\xn.{i) 

It  was  anciently  the  course  of  the  King's  Bench,  to  enter  the  warrants 
of  attorney  on  a  particular  roll,  kept  for  that  purpose  -.{k)  but  this  course 
was  altered  in  the  time  of  Wright,  Ch.  J.,  who  caused  them  to  be  entered 
on  the  top  of  the  issue  ro\\,{l)  as  the  practice  is  at  this  day.  In  the  Com- 
mon Pleas,  they  are  still  entered  by  the  clerk  of  the  warrants,  on  distinct 
rolls,(wi)  which  are  filed  in  the  bundle  of  common  rolls  in  that  court : 
And  it  is  a  rule,  that  "  the  clerk  of  the  treasury  shall  not  sign 
or  seal  any  *record  of  nisi  prius,  unless  the  same  be  first  signed  [  *96  ] 
or  stamped  by  the  clerk  of  the  warrants,  or  his  deputy  ;  nor 
shall  the  exigenter  receive  anj  pluries  capias,  in  order  to  make  an  exigent 
or  proclamation  thereon,  before  the  same  is  so  signed  or  stamped :"(«) 
And  no  judgment  whatever,  (except  final  judgments  upon  posteas  and 
writs  of  inquiry,  and  nonprosses,)  shall  be  signed  by  any  of  the  prothono- 
taries,  unless  the  stamp  of  the  clerk  of  the  warrants  be  first  impressed  on 
the  paper,  whereon  such  judgment  is  to  be  signed,  whereby  it  may  appear 
that  warrants  of  attorney  are  duly  filed. (5)  The  ivant  of  a  warrant  of 
attorney  is  aided,  after  verdict,  by  the  statutes  of  jeofails  :{cc)  and  by  the 
statute  of  8  Hen.  VI.  c.  12,  §  2,  a  misprision  of  a  clerk  in  the  warrant 
may  be  amended,  in  aflSrmance  of  the  judgment. ((^) 

The  warrant  of  attorney  was  formerly  subject  to  a  stamp  duty  :{e)  And 
it  was  enacted,  by  the  statute  25  Geo.  III.  c.  80,  §  13,  that  "  no  attorney 
should  sue  out  any  writ  or  process,  or  commence,  prosecute,  or  defend 
any  action,  unless  he  should  have  delivered  to  the  officer,  or  his  deputy, 
appointed  to  sign  or  issue  the  first  process  for  the  plaintiff,  or  to  enter, 
file  or  record  the  bail  or  appearance  for  the  defendant,  a  memorandum, 
or  minute  of  his  warrant,  duly  stamped  with  a  five  shilling  stamp  :  con- 
taining the  names  of  the  parties,  the  court,  and  the  attorney,  and  where 
a  prsecipe  was  required,  (except  for  an  original,  the  nature  and  denomi- 
nation of  the  process,  and  the  return  of  it ;(/)  which  memorandiim  or 

(^)  Dyer,  180,  225.  Cro.  Jac.  277.  March,  121.  8  Mod.  77.  1  Str.  526.  2  Str.  807.  2  Ld. 
Raym.  1533,  4.  Fitzgib.  191.  1  Wils.  39,  183. 

(?)  4  Durnf.  &  East,  370.  (A-)  1  Salk.  88. 

\l)  Id.  ibid.  R.  E.  4  Jac.  II.  K.  B. 

(m)  Append.  Chap.  XXX.  §  50.  (a)  R.  H.  2  &  3  Jac.  II.  C.  P. 

{b)  R.  M.  5  Geo.  II.  C.  P.,  and  see  R.  T.  35  Hen.  VI.  §  4-  R-  H.  14  &  15  Car.  II.  reg.  2,  C.  P. 

{cc)  32  Hen.  VIII.  c.  30,  §  1.  18  Eliz.  c.  14,  §  1,  and  see  1  Wils.  85. 

[d)  Douf^.  114.  And  see  further,  as  to  the  warrant  of  attorney,  and  when  it  shall  be  en- 
tered or  filed,  Com.  Dig.  tit.  At/ornei/,  B.  7,  8. 

(e)  25  Geo.  III.  c.  80,  g  1.  44  Geo.  III.  c.  98,  Sched.  A.  48  Geo.  III.  c.  149,  Sched.  Part  II. 
2  III.  55  Geo.  III.  c.  184,  Sched.  Part  II.  ^  III. 

(/)  Append.  Chap.  IV.  §  3,  4.    Fost,  Chap.  XII. 


96  OF  THE  PKOSECUTION,  ETC. 

minute  the  said  oflScer  or  his  deputy  should  receive,  and  forthwith  enter 
or  file  of  record,  and  sign  thereon  the  day  of  delivering  it."  A  similar 
memorandum  or  minute  was  required,  by  the  same  act,  previous  to  entering 
up  judgment  on  a  cognovit  actionem,  or  warrant  of  attorney.(^)  But  the 
stamp  duty  on  warrants  of  attorney  being  repealed,  by  the  statute  5  Geo. 
IV.  c.  41,  the  filing  of  a  memorandu7n,  or  minute  of  the  warrant,  seems 
to  bo  no  longer  necessary. 

Attorneys  residing  in  the  country  frequently  employ  agents  in  town,  to 
prosecute  and  defend  suits ;  on  the  other  hand,  attorneys  in  town  some- 
times employ  agents  in  the  country  to  superintend  the  execution  of  writs, 
&c.  And  an  attorney  employing  an  agent  to  do  business  for  his  client,  is 
primd  facie  liable  to  the  agent  for  his  bill,  although  the  latter  knew  the 
business  to  be  done  for  the  client ;  but  to  whom  the  credit  was  given,  is  a 
question  for  the  jury.(7i)  When  country  attorneys  are  concerned  as 
principals,  declarations,  pleas,  and  other  proceedings  should  not  be  deli- 
vered and  carried  on  in  the  country,  but  by  the  agents  in 
[  *97  ]  town  ;(^)  to  whom  all  ^notices  in  the  cause  should  likewise  be 
given  -.[a]  And  if  the  agent  of  the  plaintiff's  attorney  give  the 
agent  for  the  defendant  time  to  plead,  the  country  attorney  cannot  sign 
judgment  till  that  time  be  expired.(6)  In  the  King's  Bench,  notice  of 
trial  or  inquiry,((;)  or  a  countermand  or  continuance  of  notice  of  inquiry,(d'(^) 
must  be  given  in  town;  but  a  countermand  of  notice  of  trial  may  be  given 
in  the  country.(ee)  In  the  Common  Pleas,  it  seems  that  notices  of  trials 
and  countermands,  and  notices  of  executing  writs  of  inquiry  and  counter- 
mands, may  be  given  either  to  the  attorney  in  the  country,  or  to  the  agent 
in  town ;  but  of  those  things  which  are  to  be  done  only  in  town,  notice 
must  be  to  the  agent :  and  all  notices  where  the  party  has  a  known 
attorney,  must  be  given  to  that  attorney  or  his  agent,  and  not  to  the  party 
himself.(^)    Payment  to  the  attorney  is  payment  to  the  principal  ;(^^)[a] 

{g)  Id.  I  5. 

(A)  2  Barn.  &  Ores.  11.    3  Dowl.  &  Ryl.  195,  S.  C. 

{i)  Imp.  K.  B.  10  Ed.  46.    Imp.  C.  P.  7  Ed.  38, 187,  and  see  Barnes,  311.  Pr.  Reg.  124,  S.  C. 
Cas.  Pr.  C.P.  94,  101,  109.    Pr.  Reg.  280,  81.    Barnes,  251.    Cas.  Pr.  C.  P.  123,  S.  C. 
;    {a)  1  Durnf.  &  East,  711.    3  East,  569. 

(6)  In  the  Common  Pleas,  if  an  appearance  be  entered  in  the  name  of  an  agent  to  the  de- 
fendant's attorney,  judgment  cannot  be  signed,  though  the  plea  be  delivered  in  the  name  of 
the  latter.    3  Bos.  &  Pul.  111. 

(c)  3  East,  568. 

{dd)  Imp.  K.  B.  10  Ed.  415,  and  see  Lee's  Prac.  Die.  2  Ed.  29,  30. 
^     (ee)  2  Str.  1073.  Cas.  Ump.  Hardw.  369,  S.  C.    Imp.  K.  B.  10  Ed.  46. 

Iff)  Barnes,  306.  {gg)  1  Blac.  Rep.  8. 

[a]  Authority  op  Attorney. — The  plaintiif  s  attorney,  as  such  merely,  has  no  authority 
to  discharge  the  defendant  from  a  ca.  sa.  without  satisfaction.  Jackson  v.  Barthtt,  8  Johns. 
361.  Kellogg  v.  Gilbert^  10  Johns.  220.  Simonton  v.  Baraell,  21  Wend.  362.  But  he  may  direct 
the  sheriff  to  suspend  proceeding  under  an  execution,  pending  a  negotiation  with  the  de- 
fendant on  a  compromise.  Corning  v.  Southland,  3  Hill,  552.  Neither  is  it  his  duty  to  direct 
or  control  the  sheriff  in  the  discharge  of  his  duty  under  the  execution ;  and  if  he  does  so, 
and  is  sued,  he  is  not  entitled  to  double  costs  under  the  statute.  Ray  v.  Birdege,  5  Denio, 
619.  ^  Although  he  may,  under  his  general  authority  to  collect  a  note,  receive  payment  of 
part  in  money,  and  the  residue  in  a  new  note  for  two  or  three  days  of  a  person  of  undoubted 
responsibility.  Livingston  v.  Radcliff,  6  Barb.  201.  It  may  however  be  stated  as  the  result 
of  the  cases,  that  his  power  is  confined  to  the  prosecution  of  a  suit,  and  the  incidents  pro- 
perly connected  therewith  ;  it  does  not  extend  to  compromising  and  discharging  his  client's 
cause  of  action,  unless  specially  authorized,  without  receiving  his  full  claim.  Vail  Y.Jack- 
son, 15  Verm.  314.  Briggs  v.  Georgia,  10  Ih.  68.  A  client  has  no  right  to  control  his  attorney 
in  the  due  and  orderly  conduct  of  a  suit;  and  it  is  the  attorney's  duty  to  do  what  he  haa 
no  doubt  the  court  would  order  to  be  done,  though  his  client  instruct  him  otherwise.  Anon. 
1  Wend.  lOS. 


OF  PAUPERS.  97 

but  it  is  otherwise  of  payment  to  an  agent,  employed  by  the  plaintiff's 
attorney.(/i)  And  where  the  plaintiff's  attorney  was  indebted  to  the 
plaintiff,  in  a  greater  sum  than  the  amount  of  the  attorney's  costs  in  the 
cause,  the  court  of  Common  Pleas  held,  that  the  agent,  to  whom  the  plain- 
tiff's attorney  was  indebted  on  a  general  account,  in  a  sum  greater  than 
the  amount  of  such  costs,  could  not,  as  against  the  plaintiff,  retain  out  of 
the  sum  recovered  by  the  latter,  more  than  the  charge  for  agency  in  that 
particular  cause. (2) 

"When  the  plaintiff  is  a  jMtcper,  and  will  swear  that  he  is  not  worth /ye 
pounds,  after  all  his  debts  are  paid,  except  his  Avearing  apparel,  and  the 
subject  matter  of  the  action, (A;)  he  may  be  admitted  to  sue  in  formdimu- 
peris.\_\']  But  the  defendant  in  a  civil  action  is  never  allowed  to  defend  it  as 
a  pauper.(Z)  It  was  formerly  a  rule,(??t)  that  none  could  be  admitted  to 
sue  in  formd  imwperis,  out  of  court ;  but  now,  if  a  plaintiff  will  make  affi- 
davit,{n)  that  he  is  not  worth  five  pounds,  &c.,  he  may,  upon  2^etition{o) 
to  the  chief  justice,  (supported  in  the  King's  Bench,)  by  counsel's  opi- 
nion(p)  of  his  cause  of  action,  be  admitted  out  of  court  ;{^)  which 
admission  may  be  *either  at  the  commencement  of  the  suit,  or  [  *98  ] 
afterwards  iJendente  lite:[a)  and  upon  his  being  so  admitted,  an 
attorney  and  counsel  shall  be  assigned  him,  pursuant  to  the  statute  11 
Hen.  VII.  c.  12 ;  and  he  shall  be  permitted  to  carry  on  the  proceedings 
gratis,  without  using  stamps,(6)  or  paying  fees  to  the  officers  of  the  court 
unless  he  obtain  a  verdict  for  more  than  five  pounds,  and  then  the  officers 
shall  be  paid  their  court  fees,  and  for  passing  the  record,  &c.  But  the 
opinion  of  counsel,  or  a  certificate  under  his  hand,  that  he  thinks  the 
party  has  merits,  is  necessary,  as  well  as  an  affidavit  that  he  is  not  worth 
five  pounds,  before  the  court  will  permit  a  person  to  sue  in  formd  pau- 
peris.{c)  It  seems,  that  an  action  for  penalties  is  not  within  the  statute 
11  Hen.  VII.  c.  12  :(c^)  And  if  it  appear  that  the  plaintiff  has  no  meri- 
torious cause  of  action,  the  court  will  discharge  an  order,  authorizing  him 
to  sue  in  formd  pauperis ;{d)  though  a  judge's  order  for  that  purpose  must 
be  made  a  rule  of  court,  before  the  court  will  entertain  a  motion  to  dis- 
charge it.(cZ) 

A  pauper  is  not  liable  to  pay  costs  to  the  defendant,  if  he  be  non-suited, 
or  have  a  verdict  against  him  :  for,  by  the  statute  23  Hen.  VIII.  c.  15,(c) 
which  gives  costs  to  the  defendant  upon  a  nonsuit  or  verdict,  it  is  provided 
that  "  every  poor  person,  being  plaintiff  in  any  action  of  debt,''  &c.,  "  who, 

(/i)  Doug.  623,  4,  and  see  Paley's  law  of  Principal  &  Agent,  182,  (/). 

(j)  1  Bing.  20.  7  Moore,  249,  S.  C.  And  see  6  Price,  203.  2  Dowl.  &  Rjl.  C,  accord.  6 
Dowl.  &  Ryl.  384. 

(/f)  Pv.  H.  3  &  4  Jac.  II.  rcg.  1,  {a).  K.  B.  Hul.  Costs,  2  Ed.  222  ;  but  see  1  Lil.  P.  R.  633, 
•where  the  sum  is  said  to  be  ten  pounds. 

(/)  Hul.  Costs,  2  Ed.  228,  9.     Barnes,  328.  (m)  R.  H.  3  &  4  Jac.  II.  rcfj.  1.  K.  B. 

(n)  Append.  Chap.  IV.  g  9.  (o) /</.  g  8-  (i?)  ■^'^-  §  10- 

{q)  R.  II.  3  &  4  Jac.  II.  reg.  l,(ff).  K.  B.  For  the  form  of  judge's  order,  for  admitting  the 
plaintiff  to  sue  in  furma  pauperis,  see  Append.  Chap.  IV.  ?  15. 

(a)  Say.  Costs,  90.     3  Wils.  24,  and  see  Com.  Dig.  tit.  Formd  rauperis.    M'Clel.  &  Y.  282. 

(b)  Stat.  5  Wm.  &  M.  c.  21,  ^  14,  &c.,  and  see  the  statutes  44  Geo.  III.  c.  98,  g  19.  48 
Geo.  III.  c.  149.     Sched.  Part  il.  ^  V.     55  Geo.  III.  c.  184.     Sched.  Part  II.  §  V. 

(c)  aoodlillc  V.  Mmio,  II.  25  Geo.' III.  K.  B. 

(d)  1  Younge  &  Jerv.  10.  (c)  ?  2. 

[a]  See  1  Broom's  Pract.  290.    2  Archb.  Pract.  1121,  8  Ed. 


98  OF  INFANTS. 

at  the  commencement  of  his  suit,  shall  be  admitted,  by  the  discretion  of 
the  judge  or  judges  where  the  action  is  pursued,  to  have  his  process  and 
counsel  of  charity,  without  paying  money  or  fee  for  the  same,  shall  not 
be  compelled  to  pay  any  costs  by  virtue  of  that  statute,  but  shall  offer  other 
punishment,  as  by  the  discretion  of  the  justices  before  whom  the  suit  shall 
depend,  shall  be  thought  reasonable."  It  has  been  said,  that  if  a  pauper 
be  nonsuited,  he  shall  pay  costs,  or  be  whipped  ;(/)  but  this  punishment 
does  not  appear  to  have  been  ever  inflicted. (^)  If  the  pauper  give  notice 
of  trial,  and  do  not  proceed,  or  be  otherwise  guilty  of  improper  conduct, 
the  court  will  order  him  to  be  dispaupered  ;(A)  but  until  this  be  done,  they 
will  not  make  any  rule  about  costs. (^)  And  unless  the  pauper's  conduct 
appear  to  have  been  vexatious,  the  court  will  not  stay  the  proceedings  in 
a  second  action,  until  the  costs  are  paid  of  a  nonsuit  in  a  prior  one,  for 
the  same  cause  ;{Jc)  nor,  if  the  pauper  should  succeed  in  the  second  action, 

will  they  deduct  the  costs  of  the  first,  out  of  those  recovered  in 
[  *99  ]    the  second. (Z)    In  a  second  ejectment  by  a  *pauper,  the  court 

refused  to  grant  a  rule  for  staying  the  proceedings,  until  the 
costs  were  paid  of  a  prior  ejectment  for  the  same  cause  :{a)  but  it  was 
admitted,  that  he  would  not  in  such  second  action  be  allowed  to  sue  in 
formd  pauperis. {a)  And  where  an  order  was  made  pendente  lite,  admit- 
ting the  plaintiff  to  prosecute  his  action  in  forma  pauperis,  and  an  appli- 
cation by  the  defendant  for  security  for,  and  taxation  of  the  costs  previ- 
ously incurred,  was  not  made  till  nearly  two  years  afterwards ;  the  court 
of  Exchequer  refused  the  application,  and  allowed  a  retrospective  opera- 
tion to  the  order.(i)  If  a  pauper  be  admitted  to  defend  a  suit  in  Chancery, 
in  forma  pauperis,  his  solicitor  can  only  recover  of  him  money  actually 
paid  out  of  pocket,  for  the  defence  of  the  suit.(c)  And  though  a  pauper 
be  not  liable  to  pay  costs,  yet  he  is  entitled  to  receive  them  from  his  ad- 
versary, (c?) 


An  infant,  or  person  under  the  age  of  twenty-one  years,  not  being  capable 
of  appointing  an  attorney,  must  sue  by  his  prochein  amy  qx  guardian,{e\k\ 
unless  where  he  sues  as  co-executor  with  others,  in  which  case  it  is  holden 
that  the  executors  of  full  age  may  appoint  an  attorney  for  themselves  and 
the  infant,  as  they  make  together  but  one  representative. (^)[b]     And 

(/)1  Sid.  261-     2  Salk.  506.     Y  Mod.  114.  [g)  Id.  ibid. 

(h)  2  Lil.  Pr.  633.  2  Salk.  506.  1  Str.  420.  2  Str.  983,  1122.  3  Wils.  24.  1  Bos.  & 
Pul.  40.     6  East,  505.     2  Smith  R.  676,  S.  C. 

(i)  2  Str.  878,  983.  3  Wils.  24.  1  Bos.  &  Pul.  40.  6  East,  505.  2  Smith  R.  676,  S.  C, 
but  S€e  Gas.  Pr.  C.  P.  47.     Pr.  Reg.  405,  S.  C.     1  Str.  420,  semb.  contra. 

(k)  2  Str.  878,  1121.  3  Wils.  24.  Mutton  v.  Colboys,E.  35  Geo.  III.  K.  B.,  but  see  2 
Durnf.  &  East,  511, 

{I)  2  Str.  891. 

(a)  Goodtitle  v.  Mayo,  H.  29  Geo.  III.  K.  B.,  and  see  2  Str.  1121. 

\b)  M'Clel.  &  Y.  282.  (c)  1  Car.  &  P.  533. 

{d)  1  Bos.  &  Pul.  39. 

(e)  Co.  Lit.  135,  b.     2  Inst.  261,  390,  F.  N.  B.  27,     2  Wms.  Saund.,  5  Ed.  117,/.  (1). 

Iff)  2  Wms.  Saund.  5  Ed.  212,  13,  (6).  But  see  Com.  Dig.  tit.  Pleader,  2  C.  I.,  where  it 
is  said,  that  if  several  sue  jointly,  and  some  are  within  age,  and  some  of  full  age,  and  all 
appear  by  attorney,  it  is  no  error  ;  for  those  of  full  age  may  make  an  attorney  for  all.  The 
authorities  cited,  however,  do  not  support  this  doctrine. 

[a]  See  page  101,  note  [d]. 

[b]  See  2  Troub.  &  Haley's  Pr.  512,  3d  Ed. 


OF  INFANTS.  99 

hence,  he  cannot  be  an  informer  upon  a  penal  statute  ',{g())  for,  Ly  the  18 
Eliz.  c.  5,  §  1,  "  every  informer  upon  a  penal  statute  must  exhibit  his  suit  in 
proper  jjerson,  and  pursue  the  same  only  by  himself  or  his  attorney."  An 
infant  defendant  must  in  all  cases  appear  and  defend  by  r/uardian,  even 
where  he  is  sued  as  co-executor  with  others  :(7iA)  And  common  bail  cannot  be 
filed  for  him  under  the  statute,  though  he  be  sued  jointly  with  other  defend- 
ants.(/)  If  he  appear  by  attorney,  it  is  error  ;(/c)[a]  though  if  an  infant 
jylaintiff  VLi>i[)OdiV  by  attorney,  it  is  cured  by  the  statutes  of  jeofails. (?)  It 
also  seems,  that  in  an  action  against  baron  and  feme,  the  feme  being  under 
age,  she  ought  to  appear  by  guardian. (?«) 

To  constitute  ajjroc7/e/?i  ami/  or  guardian,  the  person  intended,  who  is 
usually  some  near  relation,  should  come  with  the  infant  before  a  judge  at 
his  chambers;  or  else  a  petition{n)  should  be  presented  to  the 
judge  on  *behalf  of  the  infant,  stating  the  nature  of  the  action,  [  *100  ] 
and,  if  for  the  defendant,  that  he  is  advised  and  believes  he  has 
good  defence  thereto ;  and  praying,  in  respect  of  his  infancy,  that  the 
person  intended  may  be  assigned  him,  as  his  'prochein  amy  or  guardian,  to 
prosecute  or  defend  the  action.  This  petition  should  be  accompanied  with 
an  agreement, [a)  signifying  the  assent  of  the  intended  prochein  amy  or 
guardian,  and  an  affidavit,{b)  made  by  some  third  person,  that  the  petition 
and  agreement  were  duly  signed.  On  being  applied  to  in  either  of  these 
ways,  the  judge  will  grant  his  fiat  ;{c)  upon  which  a  rule  or  order  should  be 
drawn  up,  with  the  clerk  of  the  rules,  in  the  King's  Bench,  for  the  admis- 
sion of  the  2Jfoeliein  amy  or  guardian. (cZ)  In  the  Common  Pleas,  the  order 
for  the  admission  is  made  by  the  judge,  and  entered  by  the  prothonotaries 
on  their  remembrance  roll :  which  admission  is  either  special,  to  prosecute 
or  defend  a  particular  action,  or  general,  to  prosecute  or  defend  all  actions 
whatsoever  ;(e)  though  it  is  said,  that,  by  the  practice  of  the  King's  Bench, 
a  special  admission  of  a  guardian,  to  appear  in  one  cause,  will  serve  for 
others. (/)  The  infant's  father  is  usually  appointed  his  prochein  amy : 
but  where  the  father,  being  a  necessary  witness  for  the  infant,  cannot  be 
appointed,  the  court  of  King's  Bench,  on  motion,  will  appoint  some  other 
person,  with  the  father's  consent.(^) 

The  rule  or  order  for  the  admission  of  a  prochein  amy,  should  be  ob- 
tained before  declaration,  and  a  copy  thereof  annexed  to  it ;  or  the  defend- 
ant is  not  compellable  to  plead  :(/i)  and  the  attorney  for  the  plaintiff,  if 
required,  must  give  notice  to  the  defendant's  attorney,  of  the  place  of 
abode  of  i\iQ  prochein  amy.[ii)  In  like  manner,  the  rule  or  order  for  the 
admission  of  a  guardian  should  be  obtained  before  plea,  and  a  copy  of  it 
annexed  thereto  ;  for  if  an  infant  defendant  appear  by  attorney,  though 
it  be  in  consequence  of  common  process,  with  a  notice  requiring  him  to 

{(jg)  Say.  Rep.  51.  {hh)  2  Str.  784. 

(t)  niiffh  V.  Minster  <\  others,  T.  28  Geo.  III.  K.  B. 

[k)  8  Co.  58,  b.  9  Co.  30,  b.  2  Wms.  Saund.,  5  Ed.  212,  (4,  5.)  Barnes,  413,  418.  2 
Wills.  50. 

II)  21  Jac.  I.  c.  13.     4  &  5  Ann,  c.  16.  (m)  1  D'Anv.  Abr.  602. 

(n)  Append.  Chap.  IV.  g  11,  12.  (a)  Append.  Chap.  IV.  §  13. 

(6)M  §14.  (c) /(/.  §  16.  (d)Id.^n,\8, 

(e)  1  Str.  304.     Append.  Chap.  IV.  §  19.  (/)  1  Str.  305. 

(ff)  1  Dowl.  &  Ryl.  13.  (A)  Sty.  P.  R.  264.  (h)  1  Wils.  246. 

[a]  See  accord  Sheppard  v.  Ilibbard,  19  Wend.  96.  }V}iiie  v.  Albertson,  3  Dev.  241. 
Hamilton  v.  Foster,  1  Brevard,  464.  Bedell  v.  Lewis,  4  J.  J.  Marshall,  452.  Nicholson  v. 
Wilson,  13  Geo.  Rep.  467. 


100 


OF  INFANTS. 


appear  in  that  manner,  the  plaintiff  may  obtain  an  order  for  striking  out 
the  appearance,  and  that  the  defendant  appear  by  guardian  within  a  cer- 
tain time,  being  usually  four  or  six  days ;  or,  in  default  thereof,  that  the 
plaintiff  may  be  at  liberty  to  name  a  guardian,  to  appear  and  defend  for 
him:(A;/t)[A]  And  a  similar  order  may  be  obtained,  -where  the  defendant 
neglects  to  appear  at  dX\.{lT)  If  a  prochein  amy  or  guardian  be  changed, 
pending  an  action,  the  fact  ought  to  be  stated  by  an  entry  on  the 
record.  (mm)[B] 

An  infant  plaintiff  cannot  be  compelled  to  give  security  for  costs,  on 
the  ground  of  the  insolvency  of  his  prochein  amy  :{n)  and  the  latter  alone 
is  liable  to  the  payment  of  costs  ;(o)[c]  and  if  he  refuse  to  pay 
[  *101  ]  them  on  demand,  *he  may  be  proceeded  against  by  attach- 
ment, (a)  Yet,  where  an  infant  plaintiff  was  taken  in  execution 
for  costs,  the  court  refused  to  discharge  him  on  motion. (5)  And  it  has 
been  adjudged,  that  costs  are  payable  by  an  infant  defejidant.  {c)[p] 

(kk)  Barnes,  413,  418.  T  Taunt.  488.  1  Moore,  250,  S.  C,  and  see  2  Chit.  Rep.  22,  (a). 
3  Bing.  609. 

{11}  2  Str.  1076.     2  Wils.  50.  [mm)  4  Taunt.  765. 

(«)  1  Marsh.  4,  and  see  2  Chit.  Rep.  359. 

(o)  Cro.  Eliz.  33.  1  Str.  548.  2  Str.  708.  And  the  prochein  amy  is  prima  facie  liable  to 
the  plaintiff's  attorney  for  his  costs,  as  well  as  to  the  defendant.     2  Esp.  Rep.  473. 

(a)  Cas.  Pr.  C.  P.  32.     Willes,  190.     Barnes,  128.     Pr.  Reg.  102,  S.  C. 

(6)  2  Str.  1217.     13  East,  6,  and  see  Barnes,  183.     1  Bos.  &  Pul.  480. 

(c)  Dyer,  104.     1  Bulst.  189.     2  Str.  1217. 


[a]  See  2  Troub.  &  Haley's  Pract.  513,  3d  Ed. 

[b]  See  Shuiilesmiih'y.  Hughes,  6  Rich.  329. 

[ c]  Where  an  infant  suing  by  his  prochein  ami  recovers  a  judgment,  which  is  reversed, 
the  judgment  and  costs  shall  be  against  the  prochein  ami.      Yerger  v.  Stone,  7  Monr.  119. 

[d]  An  infant  may  bring  an  action  on  a  contract,  but  he  must  sue  by  guardian,  or  next 
friend.  3PGiffin  v.  Stout,  Coxe,  92.  Doe  v.  Brown,  8  Blackf.  443,  or  he  will  be  nonsuited, 
at  the  trial.  3I'Daniel  v.  Nicholson,  2  Rep.  Con.  Ct.  344.  In  Connecticut,  in  an  action  by 
a  minor,  an  express  admission  of  a  prochein  ami  to  prosecute  seems  to  be  unnecessary ;  the 
admission  of  the  p)i'ochein  ami  named  in  the  writ  being  implied,  until  disallowed.  Judson  v. 
Blanchard,  3  Conn.  579.  It  is  not  the  province  of  the  court  to  appoint  a  guardian  or  next 
friend  to  sue  for,  but  only  to  defend  an  infant  party.  Priest  v.  Hamilton,  2  Tyler,  49.  Nor 
can  an  infant  appear  or  plead  by  attorney.  Jeffrey  v.  Robideaux,  3  Mis.  33.  Clarky.  Turner, 
1  Root,  200.  Mockcy  v.  Grey,  2  Johns.  192.  And  as  defendant  he  must  appear  by  guardian. 
Knapp  V.  Crosby,  1  Mass.  479.  Miles  v.  Boyden,  3  Pick.  213.  Alderman  v.  Tirrell,  8  Johns. 
418.  Bedell  v.  Leicis,  4  J.  J.  Marsh.  562.  Comstock  v.  Carr,  6  Wend.  526.  Meredith  v. 
Sanders,  2  Bibb,  101.  There  should  be  no  judgment  by  default,  unless  there  is  a  guardian 
ad  litem.  Chalfant  v.  3Ionroe,  3  Dana,  35.  Young  v.  Whitaker,  1  A.  K.  Marshall,  398.  Eow- 
land  V.  Cook,  lb.  453.  If  an  infant  defendant  does  not  appear  upon  service  of  tile  summons, 
the  plaintiff  may  have  a  rule  to  assign  a  guardian  and  enter  an  appearance.  Judson  v. 
Storer,  2  South.  544.  The  power  of  a  next  friend  commences  with  the  suit,  and  he  can 
therefore  maintain  a  suit  for  such  causes  of  action  only  as  may  be  prosecuted  without  a 
previous  special  demand,  unless  the  defendant  has  waived  the  necessity  of  a  demand.  Miles 
V.  Boyden,  3  Pick.  213.  Brown  v.  Hull,  16  Verm.  673.  The  next  friend  and  guardian  will 
be  admitted  by  the  court  without  any  other  record  than  a  recital  in  the  count.  Clark  v. 
Gihnanton,  12  New  Hamp.  515.  A  prochein  ami  is  one  admitted  by  the  court  to  prosecute 
for  an  infant,  because  otherwise  the  infant  might  be  prejudiced  by  the  refusal  or  neglect  of 
his  guardian.  He  is  but  a  species  of  attorney,  who  may  prosecute  a  right  for  an  infant,  but 
can  do  nothing  to  operate  to  his  injury,  and  therefore  cannot  release  or  compromise  a  suit 
prosecuted  on  behalf  of  a  minor.  Isaacs  v.  Boyd,  5  Port.  388.  The  suit  of  an  infant  may 
be  dismissed  without  the  consent  of  the  prochei?!  ami.  The  court  may  control  him,  as  well 
as  a  guardian  ad  litem,  and  shcRild  permit  or  direct  what  is  most  for  the  interest  of  the 
infant.  Longnecker  v.  Greenwade,  5  Dana,  516.  A  judgment  irregularly  obtained  against  an 
infant,  is  erroneous,  and  may  be  set  aside,  after  he  has  attained  full  age,  on  motion  and  rule  ; 
the  fact  of  infancy  must  be  tried  in  such  case  per  pais,  and  not  by  inspection.     Haigler  v. 

Way,  2  Rich.  324.    It  seems,  however,  that  the  court  is  not  bound  to  set  aside  the  judgment, 
after  the  infant  has  attained  full  age,  but  may  consider  lapse  of  time,  the  conduct  of  the 


OF  THE  ORIGINAL  WRIT.  '*102 


♦CHAPTER    V. 

Of  the  Original  Writ  ;  and  Process  thereon,  previous  to  the  Capias, 
in  the  King's  Bench  and  Common  Pleas. 

An  original  writ  is  a  mandatory  letter  from  the  king  in  Chancery,  sealed 
with  his  great  seal  \{aa)  and,  in  the  King's  Bench,  may  be  the  means  of 
commencing  all  personal  actions,  against  every  person  not  being  an  attor- 
ney or  officer  of  the  court,  or  a  prisoner  in  the  actual  custody  of  the  mar- 
shal. Formerly,  indeed,  it  was  not  usual  to  proceed  in  the  King's  Bench, 
by  original  writ,  in  dehty  detinue,  or  other  action  of  a  mere  civil  na- 
ture :[hh)  but  the  modern  practice  is  different  ',[cc)  and,  in  Lord  MansfieUV s 
time,  where  the  defendant  pleaded  to  the  jurisdiction,  in  an  action  of  debt 
commenced  by  original  writ,  the  court  gave  judgment  on  demurrer  for  the 
plaintiff:  and  declared,  that  if  such  a  plea  should  come  before  them  again, 
they  would  inquire  by  whom  it  was  signed.(c:?)  On  the  other  hand,  an 
original  writ  seems  to  have  been  formerly  the  only  way  of  proceeding 
against  peers,  and  members  of  the  house  of  commons  ;(c')  as  it  is  still, 
against  the  former,(/)  and  also  against  corporations,  or  hundredors,{g) 
on  the  statute  7  &  8  Geo.  IV.  c.  31 ;  or  where,  by  reason  of  the  defend- 
ant's being  abroad,  or  keeping  out  of  the  way,  he  cannot  be  arrested  or 
served  with  process. 

Another  benefit  attending  this  mode  of  proceeding  in  the  King's  Bench 
is,  that  after  judgment  in  an  action  by  original,  a  writ  of  error  will  not  lie  in 
the  Exchequer  chamber,  where  it  is  often  brought  for  the  mere  purpose  of 
delay,  but  only  in  parliament. (7i)  The  reason  is,  that  at  common  law,  no 
writ  of  error  lay,  except  in  Parliament,  from  the  judgment  of  this  court; 
and  the  statute(/)  which  gave  a  writ  of  error  in  the  Exchequer  chamber, 
only  extends  to  such  actions  as  are  first  commenced  in  the  King's  Bench : 
therefore,  though  a  writ  of  error  will  lie  in  the  Exchequer  chamber,  on  a 
judgment  by  bill,  which  originates  in  the  King's  Bench,  yet  it  is  otherwise 
where  the  judgment  is  upon  an  original  v^v'ii,  which  issues  out  of  Chancery, 
where  the  action  in  that  case  is  first  commenced.(A;) 

*But,  in  order  to  save  the  great  and  unnecessary  expense  of 
suing  forth  s/jeceaZ  writs  in  small  and  trifling  suits,  it  was  enacted    [*103  ] 

{aa)  Finch,  L.  237.     3  Blac.  Com.  273.     Steph.  PI.  5. 

{bb)  4  Inst.  76.  Trye,  55,  77,  and  see  Lord  Uale's  Treatise,  in  1  Harg.  Law  tracts,  360, 
362,  364.    2  Blac.  Rep.  850.     3  Blac.  Com.  42. 

{cc)  Cas.  temp.  Hardw.  317. 

{d)  See  also  the  statute  13  Car.  II.  stat.  2,  c.  2,  §  6,  which  speaks  of  actions  of  debt,  &c., 
depending  by  original  writ  in  the  King's  Bench,  as  well  as  in  the  Common  Picas. 

(e)  Trye,  y,  13.     Lil.  Ent.  21.     2  H.  Blac.  267,  299. 

(/)  3  Maule  &  Sel.  88.  {g)  Trye,  11.     Barnes,  415. 

\h)  1  Sid.  424.     Trye,  6.     2  H.  Blac.  304.  {i)  27'Kliz.  c.  8. 

{k)  Run.  Eject.  205,  6.     Gilb.  K.  B.  319. 

defendant,  and  other  circumstances  as  confirm'.ng  the  judgment,  or  rendering  the  inter- 
ference of  the  court  improper,  lb.  The  proper  practice,  in  such  cases,  appears  to  be,  on 
affidavit  of  the  defendant's  infancy,  to  order  a  rule  to  show  cause,  on  the  return  of  which  the 
judgmeut  may  be  set  aside,  or  an  issue  made  up  to  try  the  fact  of  infancy,  or  such  other 
material  fact  as  the  case  may  present,     lb. 


103  OF  THE  ORIGINAL  WRIT. 

bj  the  Statute  5  Geo.  II.  c.  27,  §  5,  that  "  no  special  writ  or  process 
should  be  issued  out  of  any  superior  court,  where  the  cause  of  action 
should  not  amount  to  the  sum  of  ten  pounds  or  upwards."(a)  And, 
by  the  statute  7  &  8  Geo.  IV.  c.  71,(5)  "  where  the  cause  of  action  in  any 
court  shall  not  amount  to  the  sum  of  tioenty  pounds,  exclusive  of  any  costs, 
charges  and  expenses,  that  may  have  been  incurred,  recovered  or  become 
chargeable,  in  or  about  the  suing  for  or  recovering  the  same,  or  any  part 
thereof,  no  special  writ  or  writs,  nor  any  process  specially  therein  express- 
ing the  cause  or  causes  of  action,  shall  be  sued  forth  or  issued  from  any 
court,  in  order  to  compel  any  person  or  persons  to  appear  thereon  in  such 
court;  and  all  proceedings  and  judgments  that  shall  be  had  on  any  such 
writ  or  process,  shall  be,  and  are  thereby  declared  to  be  void  and  of  no 
effect :"  But  a  bailable  writ  is  not  necessarily  a  special  writ,  within  the 
meaning  of  the  above  statutes.((?)  It  is  also  a  rule  of  the  Court  of  King's 
Bench,(c?)  that  "  in  all  actions  in  which  the  plaintiff  shall  proceed  against 
the  defendant  by  special  original  writ,  and  shall  recover  less  than  the  sum 
0^  fifty  pounds,  he  shall  not,  on  taxing  costs,  be  allowed  any  more  or  other 
costs,  than  he  would  have  been  entitled  to,  in  case  he  had  proceeded  by 
hill ;  except  in  such  actions,  in  which  he  could  not  proceed  by  bill,  or  in 
which  any  defendant  shall  be  actually  outlawed."  But  the  costs  of  a 
special  original  were  allowed,  in  an  action  brought  on  a  bond,  the  penalty 
of  which  was  more  than  fifty  pounds,  though  the  sum  found  due  was  only 
twenty  pounds. (g) 

Original  writs  are  calculated  for  the  eomynencement  or  removal  of 
actions. (/)  And  they  are  either  de  cursu,  or  magistralia  :{g)  the  former 
were  framed  in  the  king's  court,  before  the  division  of  it  by  magna 
charta,{h)  Sind  are  to  be  found  in  the  register  of  original  writs  :(^)  the 
latter  were  made  out  by  the  masters  in  chancery,  pursuant  to  the  statute 
of  Westm.  2,  (13  Edw.  I.)  c.  24,  by  which  it  is  enacted,  that  "whenever 
it  shall  happen  in  Chancery,  that  in  one  case  a  writ  is  found,  and  not  in  a 
similar  case,  falling  under  the  same  law,  and  requiring  the  like  remedy, 
the  clerks  of  the  Chancery  shall  agree  in  making  a  writ,  or  refer'  the 
plaintiffs  to  the  next  parliament."  Of  the  register  of  original  writs,  upon 
which  Fitzherbert's  natura  brevium  is  a  comment,  it  has  been  said,(M) 
that  every  man  who  is  injured  will  be  sure  to  find  in  it  a  method  of  relief, 
exactly  adapted  to  his  own  case,  described  in  the  compass  of  a  few  lines, 
and  yet  without  the  omission  of  any  material  circumstance.  So  that  the 
wise  and  equitable  provision  of  the  statute  Westm.  2,  for  framing  new 
writs  when  wanted,  is  almost  rendered  useless  by  the  very  great 
[  *104  ]  perfection  *of  the  ancient  forms.  And  indeed,  says  the  learned 
commentator,(a)  "  I  know  not  whether  it  is  a  greater  credit  to 
our  laws,  to  have  such  a  provision  contained  in  them,  or  not  to  have  occa- 
sion, or  at  least  very  rarely,  to  use  it." 

{a)  3  Bur.  1484. 

(6)  I  1,  and  see  stat.  51  Geo.  III.  c.  124,  g  1,  continued  by  57  Geo.  III.  c.  101. 
(c)  1  Barn.  &  Aid.  393.  (f/)  R.  M.  23  Geo.  III.  K.  B. 

\e)  2  Chit.  Rep.  148.  (/)  Trye,  1,  12,  93. 

(£r)  Gilb.  K.  B.  312.     1  Inst.  54,  b.  73,  b.    2  Inst.  407,  670.     7  Co.  4,  a.     8  Co.  48,  9. 
(/i)  Chap.  11. 

{i)  1  Inst.  16,  b.  54,  b.  73,  b.  Gilb.  C.  P.  4,  5.     3  Blac.  Com.  183. 
[kk)  3  Blac.  Com.  183,  4. 

(ff)  3  Blac.  Com.  184,  and  see  1  Madd.  Chan.  5,  &c.  as  to  the  Chancellor's  common  law 
authority  in  ordering  original  writs  to  be  made  out  by  the  cursitors. 


OF  THE  ORIGINAL  WRIT.  104 

In  actions  of  account,  covenant,  debt,  annuity,  and  detinue,  tlie  original 
writ  is  called  a  prsecipe  ;(h)  by  which  the  defendant  has  an  option  given 
him,  either  to  do  what  he  is  required,  or  show  cause  to  the  contrary :  but 
in  assumpsit,  and  actions  for  wrongs,  it  is  called  a  pone,  or  si  te  fecerit 
securum  ;{c)  by  which  the  defendant  is  pcremptorihj  required  to  show  cause 
in  the  first  instance.  In  point  of  form,  the  original  writ  is  special  or 
general,  nominatum  vel  innominatum  :{d)  The  former  contains  the  time, 
place,  and  other  circumstances  of  the  demand,  very  particularly;  the 
latter,  only  a  general  complaint,  without  expressing  the  particulars,  as 
the  writ  of  trespass  quarc  clausum  f regit,  &c. 

In  the  Common  Pleas,  we  have  seen,(e)  an  original  writ  is  either  a 
special  original,  adapted  to  the  nature  of  the  action,  or  a  common  original 
in  trespass  quare  clausum /regit  ;{f)  and  there  is  a  rule  in  that  court,(^) 
that  "  no  attorney  shall  deliver  or  receive  any  declaration,  without  an 
original,  proper  to  the  cause  of  action,  being  first  sued  forth  to  warrant 
the  same  :"  which  rule  is  now  disused.  A  special  original,  however,  is, 
in  that  court,  seldom  issued  in  the  first  instance,  except  in  cases  where  it 
is  absolutely  necessary,  as  in  proceeding  against  p>eers,  corporations,  and 
hundredors,  who  are  not  subject  to  a  capias  ;  but  the  usual  mode  of  com- 
mencing actions  in  this  court,  is  by  issuing  out  a  writ  of  cajnas  quare 
clausum  f regit,  which  is  founded  on  a  supposed  original,  and  answers  to 
the  bill  of  Middlesex  or  latitat  in  the  King's  Bench. (A)  Before  the  statute 
19  Hen.  VII.  c.  9,  a  practice  had  been  introduced,  of  commencing  an 
action  in  the  Common  Pleas,  by  bringing  an  original  writ  of  trespass 
quare  clausum  f regit,  for  breaking  the  plaintiff's  close,  vi  et  armis  ;  which, 
by  the  old  common  law,  subjected  the  defendant's  person  to  be  arrested 
by  writ  of  capias  ;  and  then  afterwards,  by  connivance  of  the  court,  the 
plaintiff  might  proceed  to  prosecute  for  any  other  less  forcible  injury.(e) 
This  practice  appears  to  have  been  formerly  discountenanced  by  the 
court  ',[k)  but  was  afterwards  revived,  and  may  still  in  strictness  be  resorted 
to,  in  cases  where  the  defendant  keeps  out  of  the  way,  so  that  he  cannot 
be  arrested  upon,  or  served  with  process  against  his  person. 

The  original  writ(?)  is  issued  by  the  tursitor,  who  is  so  called  from  the 
writs  de  cursu  ;  and  where  no  capias  lies,  as  against  peers  or  members  of 
the  house  of  commons,  or  against  corporations,  or  hundredors  on 
the  statute  *7  &  8  Geo.  IV.  c.  31,  it  is  necessarily  the  first  pro-  [  *105  ] 
ceeding  in  the  cause.  And  where  a  copzas  lies,  but  the  defendant 
absconds  or  keeps  out  of  the  way,  so  that  he  cannot  be  arrested  or  served 
with  process  against  his  person,  it  is  usual  to  sue  out  an  original  writ,  in 
order  to  proceed  to  outlaivry.  But  in  all  other  cases,  the  practice  is  for 
the  plaintiff's  attorney  to  make  out  a.  jjrsecipe{a)  for  an  original  writ,  and 
deliver  it  to  the  filacer,  who  thereupon  issues  the  capias  in  the  first 
instance,  keeping  the  praecipe  as  instructions  for  the  original,  which  is  not 
in  fact  issued,  unless  it  become  necessary,  in  consequence  of  a  writ  of  error 
after  a  judgment  by  default. (6)     There  being  no  cursitor  for,  an  original 

(b)  Append.  Chap.  V.  ?  2,  4.  (c)  Id.  §  10,  and  see  Finch,  L.  257. 

(d)  1  Bac.  Abr.  29.     Gilb.  C.  P.  3.  (e)  Ante,  91. 

(  f)  Append.  Chap.  V.  g  12.  {g)  R.  M.  30  Car.  II.  C.  P.  and  see  R.  T.  1649,  C.  P. 


(h)  Ante,  91.  [i)  3  Bhic.  Cora.  281. 

h)  R.  H.  2  Car.  I.  §  1.  C.  P.  {/) 

(a)  Append.  Chap.  V.  g  1,  3,  9,  11. 


(b)  And  see  further,  as  to  the prcecipe  for  an  original  writ,  1  Chit.  PI.  4  Ed.  220.     Steph. 
PI.  26,  7. 

Vol.  l— 8 


105 


OF  THE  ORIGINAL  WRIT. 


Avrit  cannot  be  issued  into  a  county  palatine  ;  but  when  the  cause  of  action, 
beino-  of  a  transitory  nature,  arises  therein,  an  original  writ  may  be  issued 
into  another  county  ;  and  the  defendant,  if  he  reside  in  a  county  palatine, 
may  be  brought  into  court  on  a  testatum  capias;  and  if  he  afterwards 
move  to  change  the  venue  into  the  county  palatine,  the  court  will  make  him 
undertake  not  to  assign  for  error  the  want  of  an  original,  (c)  It  is  also  a 
rule,  in  the  common  pleas,  that  when  a  judge's  order  is  granted  for  time  to 
plead,  in  an  action  laid  in  a  county  palatine,  the  defendant  shall  be  bound 
not  to  assign  the  want  of  an  original  as  error. (c?)  On  suing  out  the  original 
writ  or  capias,  where  the  plaintiff's  demand  exceeds /orf^  pounds,  Q.jine 
is  payable  to  the  king,  by  way  of  composition  for  the  liberty  of  suing  in  his 
court  ;[e)  which  fine  is  estimate<l  according  to  the  amount  of  the  demand, 
being  six  sillings  and  eight  pence  for  every  hundred  marks,  or  ten  shillings 
for  every  hundred  pounds. (/)  The  original  writ  should  be  directed  to  the 
sheriff,  or  sheriffs,  of  the  county  where  the  action  is  brought,  and  intended 
to  be  tried  ;  and  it  should  be  tested  or  witnessed  in  the  king's  name,  at 
Westminster,  or  wherever  else  the  chancery  is  holden;(^)  and  as  that 
court  is  supposed  to  be  always  open,  it  may  be  tested  in  vacation,  as  well  as 
in  term-time  :(7i)  but  a  private  seal  is  frequently  necessary  for  passing  it 
in  vacation. 

The  terms  are  those  times  or  seasons  of  the  year,  which  are  set  apart  for 
the  dispatch  of  business,  in  the  superior  courts  of  common  law.  The  his- 
tory of  these  terms  is  given  by  '^'w  Henry  Spelman,{i)  who  has  clearly  and 
learnedly  shown,  that  they  were  gradually  formed  from  the  canonical  con- 
stitutions of  the  church  ;  being  indeed  no  other  than  those  leisure  seasons  of 
the  year,  which  were  not  occupied  by  the  great  festivals  or  fasts,  or  which 
were  not  liable  to  the  general  avocations  of  rural  business.  There 
[  *106  ]  *Sive  four  term  in  the  year;  which  are  called,  from  some  festival 
or  saint's  day  preceding  their  commencement,  the  terms  of  Saint 
Hilary,  of  Easter,  of  the  Holy  Trinity,  and  of  Saint  Michael.  Hilary 
term  begins  on  the  octave  of  Saint  Hilary,  or  the  eighth  day  inclusive  after 
the  feast  day  of  that  saint,  which  falling  on  the  13th  of  January,  the  octave 
therefore,  or  first  day  of  Hilary  term  is  the  20th  of  January ;  and  it  ends  on 
the  12th  of  February  following,  unless  it  happen  on  a  Sunday,  and  then  on 
the  13th  of  February.(aa)  Easter  term  begins  in  fifteen  days  of  Easter, 
being  the  Sunday  fortnight  after  that  festival ,  and  ends  on  Monday  before 
Whitsunday.  Trinity  term,  which  was  abridged  by  the  statute  32  Hen. 
YIII.  c.  21,  begins  on  the  morrow  of  the  Holy  Trinity,  being  the  Monday 
next  after  Trinity  Sunday  ;  and  ends  on  the  Wednesday  three  weeks  after, 
unless  it  happen  on  the  24th  of  June,  and  then  on  the  day  following. 

(c)  1  Sel.  Pr.  2  Ed.  251.  Marsden  v.  Bell,  H.  28  Geo.  III.  C.  P.  Imp.  C.  P.  7  Ed.  218.  1 
Taunt.  120.     13  Price,  52. 

{d)  1  Moore,  311, 12.  (c)  Gilb.  C.  P.  7. 

(/)  Trye,  58,  9,  R.  H.  6  W.  &  M.  K.  B.  Append.  Chap.  V.  §  13.  A  fee  of  Gs.  8d.  is  also 
payable  to  the  king,  on  every  writ  of  recordari,  pone,  accedas  ad  curiam,  (except  of  cattle  and 
chattels,)  attaint,  conspiracy,  false  judgment,  and  dedimus  potestatem.     Same  rule,  [a). 

(ff)  Finch.  L.  237.     3  Blac.  Com.  274. 

(h)  Trye,  59,  60.  Sty.  Rep.  402.  3  Keb.  214.  And  see  further,  as  to  the  tetie  of  original 
writs,  1  Madd.  Chan.  15. 

(i)  Jan.  Ang.  I.  2,  §  9,  and  see  3  Blac.  Com.  275. 

{aa)  In  Hilary  term,  the  first  day  of  full  term,  is  the  23d  of  January,  if  not  Sunday;  and  if 
Sunday,  the  next  day  after :  and  this  term  always  begins  that  day  eiyht  weeks,  on  which 
Michaelmas  term  ended,  and  ends  fourteen  weeks  after  Michaelmas  term  began.  Man.  Excheq. 
Append.  2. 


OF  THE  ORIGINAL  WRIT.  lOG 

Michaelmas  term,  which  was  abridged  by  the  statute  IG  Car.  I.  c.  6,  and 
still  further  by  the  24  Geo.  II.  c.  4.S,  begins  (five  weeks  after  Micliaelmas 
day,)  on  the  morrow  of  All  Souls,  being  the  3d  of  November,  and  ends  on 
the  28th  of  November  following,  if  not  a  Sundajj,  otherwise  on  the  20th. 
Of  these  terms  it  may  bo  observed,  that  Michaebnas  and  Ililary  ^xq  fixed 
terms,  and  invariably  begin  on  the  same  date  of  the  year ;  but  Easter  and 
Trinity  terms  are  moveable,  their  commenceraent  being  regulated  by  the 
feast  of  Easter.  After  Jlilary  and  Trinity  terms,  the  judges  go  \\\Q\r  cir- 
cuits^ for  the  trial  of  causes  wherein  issues  have  been  previously  joined ; 
and  hence  they  are  called  issuable  terms. 

In  each  of  these  terms,  there  are  stated  days,  called  general  or  common 
return  days  ;  of  these  there  arefoicr  in  each  term,  except  Easter,  which  has 
fire.  In  Ililary  term,  the  general  or  common  return  days  are,  in  eight  days 
of  Saint  Ililary,  in  fifteen  days  of  Saint  Ililary,  on  the  morrow  of  the  Puri- 
fication, and  in  eight  days  of  the  Purification.  In  Easter  term,  they  are,  in 
fifteendaysof  Easter,  in  three  weeks  after  Easter,  in  one  month  after  Easter, 
in  five  weeks  from  Easter  day,  and  on  the  morrow  of  the  Ascension.  In 
Trinity  term,  they  are,  on  the  morrow  of  the  Holy  Trinity,  in  eight  days 
of  the  Holy  Trinity,  in  fifteen  days  of  the  Holy  Trinity,  and  in  three  weeks 
after  the  Holy  Trinity.  And  in  3Iichaclmas  term,  they  are,  on  the  mor- 
row of  All  Souls,  on  the  morrow  of  St.  Martin,  in  eight  days  of  St.  Martin, 
and  in  fifteen  days  of  St.  Martin. (5)  Some  of  these  return  days  happen  on 
a  Sunday:  and  anciently,  when  writs  were  formed,  courts  of  justice  did 
actually  sit  on  that  day  ;  but  that  practice  having  been  long  disused,  it  is  not 
holden  that  an  appearance  cannot  be  entered,  nor  any  judicial  act  done,  or 
supposed  to  be  done  by  the  court,  till  the  3Ionday.[c) 

*Ononeorother  of  these  return  days,  all  orz'^maZ  writs,  and  pro-  [  *107  ] 
cess  thereon,  must  be  made  returnable;  in  the  King's  Bench,  ubi- 
cunque,  &c.,  or  wheresoever  the  king  shall  then  be  in  England,{a)  or,  in 
the  Common  Pleas,  before  the  king's  justices  at  Westminster.  The  first 
general  return  day  of  the  term  is  usually  called  the  essoin  day  of  that 
term ;  and  formerly,  when  essoins  were  allowed  in  personal  actions,  if 
the  defendant  did  not  appear,  or  cast  an  essoin  on  that  day,  the  plain- 
tifi",  on  the  next  day,  might  have  entered  an  exception,  and  obtained  an 
order  that  his  ession  should  not  be  received  ;(5^)  and  from  this  excep- 
tion, so  taken  and  entered,  the  second  day  after  the  return  of  the  writ 
was  called  the  day  of  exception.  The  third  day,  the  sheriiT  returned 
his  writs  into  court,  which  were  delivered  to  the  custos  brevium  and 
thence  this  day  was  called  the  day  of  retorno  brevium;  and  then  it 
was  that  the  court  was  seised  of  the  cause,  by  possession  of  the 
writ.  The  fourth  day  was  called  the  appeara7ice  day,  or  dies  amo- 
ri8,{cc)  which  was  the  day  given,  ex  gratid  curicc,  for  the  defendant's 
appearance  :  and  this,  which  is  denominated  the  quarto  die  post,  is  now  the 
first  day  mfull  term,  on  which  the  court  sits  for  the  dispatch  of  business, 
except  in  Trinity  term,  when  the  court,  by  act  of  parliament,  docs  not  sit 
till  the  fifth  day.  The  first  and  last  days  of  every  term  are  days  of  ap- 
pearance. 

The  original  writ  should  always  be  tested  after  the  cause  of  action  ac- 

[b)  For  a  table  of  the  Terms  and  Returns,  see  Append.  Chap.  V.  §  32. 

(c)  Regist.  19.     "W.  Jon.  156.     2  Salk.  G27.     6  Mod.  250.     3  I3ur.  1596.     1  Blac.  Rep.  49G, 
526,  S.  U. 

(a)  Trye,  2,  and  see  1  Chit.  Rep.  323.  {bb)  Gilb.  C.  P.  13.  (cc)  Co,  Lit.  135,  a. 


107 


OF  THE  ORIGINAL  WRIT. 


crucd  ;((Z)  except  in  the  court  of  Common  Pleas  at  Lancaster,  where  by 
Stat.  39  &  40  Geo.  III.  c.  105,  the  parties  are  allowed  to  declare  upon, 
plead  and  give  evidence  of  any  cause  of  action,  or  any  matter  or  thing  in 
bar  or  preclusion  of  any  personal  suit  or  action,  or  any  other  matters  or 
thin<TS,  provided  the  same  shall  have  accrued  or  happened  prior  to  the 
day  of  the  actual  signing  and  issuing  of  the  writ  of  capias  ad  responden- 
dum or  other  process  first  actually  issued  forth  in  such  suit  or  action  ;  not- 
withstanding the  same  shall  not  have  accrued  prior  to  the  teste  and  return 
of  the  original  writ,  whereupon  such  suit  or  action  shall  either  really  or  by 
fiction  of  law  be  grounded.  And  there  must,  in  general,  he  fifteen  days  at 
least  between  the  teste  and  return  of  the  original  writ;(e)  the  law  requiring 
that  distance  of  time  between  the  service  and  return :  though  if  there  be 
less,  it  will  be  aided  by  the  defendant's  appearing,  and  pleading  in  chief :(/) 
and,  by  the  statute  24  Geo.  II.  c.  48,  §  5,  "all  writs  and  process,  having 
day  from  the  quarto  die  p>ost  of  the  morrow  of  the  Ascension,  to  the  mor- 
row of  the  holy  Trinity ^  shall  be  good  and  eflFectual  in  law,  notwithstanding 
there  be  wot  fifteen  days  between  the  teste  and  return  of  the  said  writs.  "(^) 
In  proceeding  to  outlawry,  if  the  instructions  be  carried  to  the  cursitor 
within  the  first  week  of  a  term, (A)  or  even  after  that  time,  and  the  cause 
of  action  arose  early  enough,  he  will,  for  the  sake  of  expedition,  make  the 

original  returnable  on  the  first  or  any  other  return  of  the  pre- 
[  *108  ]  ceding  *term ;    otherwise,  it  is  usually  made  returnable  in  the 

same  or  the  next  term;  or,  as  it  does  not  afi"ect  the  liberty  of  the 
defendant,  it  may  be  made  returnable  at  the  distance  of  two  or  three 
terms,  (a) 

The  want  of  an  original  writ  is  aided,  after  verdict,  by  the  18  Eliz.  c.  14, 
but  not  after  judgment  by  default,  or  confession  ;(5)  or  upon  demurrer,  or 
nul  tiel  record.  And  it  has  been  holden,  that  an  original  writ  which  is  bad 
in  substance,  or  a  good  one  which  warrants  not  the  declaration,  is  not 
aided  by  this  statute. (c)  Where  the  original  however  differs  from  the 
declaration,  and  is  not  between  the  same  parties,(c?c?)  in  the  same  county,(ee) 
of  the  same  term,(^)  or  for  the  same  cause  of  action, (^/f/)  the  court,  on  a 
writ  of  error,  will  j^^inidfiacie  intend  that  it  is  not  the  original  upon  which 
the  action  was  brought;  and  where  it  is  certified  to  be  the  same,  if  the 
defendant  in  error  come  in  upon  the  scire  facias  ad  audiendum  crrores,  and 
allege  for  diminution  that  it  was  not  the  original  upon  which  he  declared, 
the  court  will  grant  a  new  certiorai'i;  and  if,  upon  such  w^rit,  there  appear 
to  be  a  good  original,  the  plaintifi"  in  error  will  not  be  sufi'ered  to  make  any 
allegation  to  the  contrary.(7i) 
When  all  the  proceedings  are  of  the  same  term,  an  original  writ  of  that 

{d)  2  Bur.  967,  and  see  2  Ken.  Chan.  Cas.  24,  as  to  ante-dating  original  writs. 

{e)  2  Inst.  567.     Booth  on  real  actions,  5  Gilb.  C.  P.  9.     3  Blac.  Com.  275. 

(/)  1  Salk.  63.     1  Ld.  Raym.  671,  S.  C.  {g)  And  see  stat.  16  Car.  I.  c.  6,  g  7. 

(A)  Trye,  60,  and  see  Barnes,  322.  (a)  Dyer,  175.  {b)  Stat.  4  Ann.  c.  16,  §  2. 

(c)  5  Co.  37,  b.  Cro.  Eliz.  722.  Telv.  108.  Cro.  Jac.  185.  Cro.  Car.  282.  1  Lev.  69. 
1  Sid.  84.  2  Ld.  Raym.  1209  ;  but  see  the  stat.  5  Geo.  I.  c.  13,  by  which  any  defect  or 
fault,  either  in  form  or  substance,  in  the  original  writ,  or  any  variance  therefrom,  is  aided 
after  verdict. 

{dd)  Cro.  Eliz.  204.     Hob.  251. 

{ee)  Cro.  Jac.  654,  5,  675.     Palm.  428.     2  Rol.  Rep.  382,  but  see  Cro.  Jac.  479,  contra. 

iff)  Cro.  Car.  272,  327.     3  Mod.  136. 

(5r(7)  10  Mod.  318.     11  Mo.  382. 

{h)  Cro.  Jac.  597.     Palm.  428.     11  Mod.  382,  and  see  Run.  Eject.  2  Ed.  142,  3. 


OF  PROCESS  BY  ORIGINAL.  108 

term  will  warrant  tliGm;(/)  and  the  cursitor  will  make  it  out,  as  a  matter 
of  course,  at  any  time  before  the  essoin  day  of  the  ensuing  term.  But  an 
original  writ  of  the  term  wherein  final  judgment,  is  given,  will  not  warrant 
the  judgment,  if  it  appear  upon  record,  that  there  have  been  proceedings 
of  a  preceding  term. (A:)  And  it  is  a  rule  in  Chancery,  that  no  cursitor 
shall  make  original  writs  of  any  return  past,  unless  he  receive  instructions 
within  the  term  wherein  they  are  to  be  returnable,  or  at  furthest  on  or 
before  the  ession  day  of  the  next  succeeding  term,  without  warrant  from 
the  lord  chancellor,  or  master  of  the  rolls. (^) 

If  the  defendant  therefore  bring  a  writ  of  error,  after  judgment  by  de- 
fault, &c.  it  is  usual  for  the  plaintiff  to  present  a  j^etition  to  the  master  of 
the  rolls,  setting  forth  the  proceedings  in  the  action,  and  the  bringing  of 
the  writ  of  error,  and  that  the  petitioner  hath  not  sued  out  an  original  writ 
to  warrant  the  judgment,  which  he  is  advised  is  necessary ;  and  that  the 
time  for  applying  for  the  same  in  ordinary  course  being  expired,  the  cursi- 
tor cannot  make  it  out,  without  an  order  for  that  purpose.(??i)  On  this 
petition,  the  master  of  the  rolls  will  grant  his  Jiat  ;{n)  upon 
which  an  order[o)  *is  drawn  up,  agreeably  to  the  prayer  of  the  [  *109  ] 
petition,  that  the  cursitor  of  the  county  where  the  venue  is  laid, 
do  issue  out  an  original  writ,  with  a  proper  return  ;  and  that  the  petitioner 
pay  the  plaintiif  in  error  his  costs,  if  he  do  not  proceed  further,  after 
having  had  notice  of  the  order. 

rAn  original  writ  was  not  amendable  at  common  law,  in  the  case  of  a 
common  person. (a)  But  it  may  be  ammended,  by  the  statute  8  Hen.  VI.  c. 
12,  for  the  misjjrision  of  the  clerk,  in  not  following  his  instructions,  or  on 
account  of  his  nescience,  or  want  of  skill,  in  matters  of  form,  though  not  in 
substance. (5)[a]  When  the  cursitor  or  his  clerk  has  been'guilty  of  a  mistake, 
in  making  out  the  original  variant  from  the  praecipe,  which  is  the  warrant 
for  the  original,  the  practice  of  the  office  is  to  set  it  right  as  a  matter  of 
course,  and  re-seal  the  writ  ;{c)  Or  the  amendment  may  be  made  on  motion^ 
or  by  2^etitio7i  to  the  master  of  the  rolls  ',{d)  and  it  seems  that  before  the 
return  of  the  wu-it,  the  motion  should  be  made  in  Chancery,(e)  but  after- 
wards, in  the  court  where  the  writ  is  returnable. (/) 


The  first  process,  or  proceeding  upon  the  original  writ,  in  actions  of 
account,  covenant,  debt,  annuity,  and  detinue,  is  a  summons, {g)  or  warning 
to  appear  according  to  the  exigency  of  the  writ;  wdiich  is  made  out  by  the 
plaintifi"'s  attorney  for  the  sheriff,  and  delivered  by  one  of  his  officers  to 
the  defendant,  or  left  at  the  usual  place  of  his  abode. 

The   defendant   being   summoned,  was   formerly  allowed  to  cast  an 

(i)  1  Keb.  327.  {k)  1  Wils.  181. 

\l)  Lord  Clarendon' 3  Orders  in  Chancery. 

\m)  Law  and  Prac.  of  Error,  29,  30,  and  see  1  P.  Wms.  411,  12,  13.  3  P.  Wms.  314. 
Append.  Chap.  V.  ?  33. 

(n)  Append.  Chap.  V.  §  34.  (o)  Id.  §  35. 

(a)  8  Co.  156,  b.  1  Salk.  49.     1  Ld.  Ravm.  5G4,  S.  C. 

(6)  8  Co.  159.     Gilb.  C.  P.  117.     Barnes,  9,  10,  16,  22.  {c)  3  Atk.  599. 

{d)  2  Wils.  395.  6  Durnf.  &  East,  544.  7  Durnf.  &  East,  300.  Append.  Chap.  V. 
§36,  37. 

(e)  3  Atk.  596,  and  see  1  Madd.  Chan.  16,  17. 

(/)  Barnes,  10,  16,  22.  {g)  Finch.  L.  305,  352. 

[a]  See  post,  p.  161  Note  [a]. 


IQg  OF  PROCESS  BY  ORIGINAL. 

essoin,{h)  or  send  an  excuse  by  his  servant  for  not  appearing;  and  that 
bein""  done,  it  was  the  plaintiff's  duty  to  adjourn  it  to  some  day,  appointed 
by  the  court,  in  the  next  term  ;(e)  if  he  did  not,  he  "was  liable  to  be  non- 
prossed. But  no  essoin  was  ever  allowed  in  personal  actions,  on  the  return 
of  a  capias  ;{Jc)  nor  even  on  a  summons,  where  the  defendant  was  seen  in 
court,  or  appeared  by  attorney :(?)  and  as  a  corporation  aggregate  could 
not  appear  in  any  other  manner,  they  were  not  entitled  to  an  essoin. (m) 
At  this  day,  the  defendant  being  in  general  at  liberty  to  appear  by  at- 
torney, no  essoin  is  allowed  in  any  personal  action  whatsoever,  even  when 
a  peer  or  member  of  parliament  is  defendant.(w)  When  an  essoin  is  cast, 
and  neither  quashed  nor  adjourned  to  a  particular  day,  the  plaintiff,  in 
the  King's  Bench,  may  declare  the  first  day  of  the  next  term,  and  the 

defendant  is  not  entitled  to  an  imparlance.(o) 
[  *110  ]       *If  the  defendant  appear,  on  or  before  the  quarto  die  post  of 

the  return  of  the  original,  he  should  cause  an  appearance  to  be 
entered  with  the  filacer,  who  is  so  called  from  the  files  of  the  custos  hre- 
viu7n,  which  are  warrants  for  him  to  continue  the  process. (a)  If  he  made 
default,  and  the  sheriff  returned  that  he  was  summoned, (5)  the  practice 
formerly  was,  for  the  filacer  to  issue  an  attachment  ;{c)  which  was  a  judi- 
cial writ,  commanding  the  sheriff  to  put  the  defendant  by  gages  and  safe 
pledges ;  that  is,  to  take  certain  of  his  goods,  which  were  forfeited  if  he 
did  not  appear,  or  to  make  him  find  personal  pledges  or  sureties,  who  were 
amerced  in  case  of  his  non-appearance  :(t^)  And  this  is  still  the  first  and 
immediate  proceeding  upon  the  original  in  trespass  vi  et  armis,{e)  &c., 
where  the  violence  of  the  wrong  requires  a  more  speedy  remedy ;  and 
therefore  the  original  writ  commands  the  defendant  to  be  at  once  attached, 
without  any  previous  warning.  But  it  seems  that,  in  an  inferior  court,  a 
custom  to  issue  a  summons  and  attachment  at  the  same  time,  is  bad  in 
law.(/)  Upon  process  of  attachment,  it  seems  that  the  sheriff  may  either 
summon  the  defendant,  or  take  gages  for  his  appearance  at  the  retui'n  of 
it.(^)  But  a  sheriff's  officer  cannot  justify  entering  the  defendant's  house, 
under  an  original  writ  of  trespass  quare  clausum  fregit,  and  continuing 
there  till  the  defendant  paid  him  a  sum  of  money,  as  and  by  way  of  surety 
for  his  appearance.  (7i7/.)  The  sheriff's  return  to  the  attachment  is,  either 
that  he  has  attached  the  defendant, (^V)  or  that  he  has  nothing  by  which 
he  can  be  attached :  in  the  latter  case,  the  plaintiff  may  have  a  testatum 
pone,  or  attachment.(M)  If  the  defendant,  being  attached,  still  neglected 
to  appear,  the  plaintiff  might  formerly  have  proceeded,  in  all  cases,  to 
compel  his  appearance  by  distringas,{ll)  or  distress  infinite ;  which  was  a 
process  commanding  the  sheriff  to  distrain  the  defendant  by  all  his  lands 
and  chattels,  and  to  answer  for  the  issues{mm)  or  profits  of  the  same. 

(h)  2  Inst.  125,  b.  137.  (i)  Cro.  Eliz.  367.     Gilb.  C.  P.  13. 

(k)  2  Str.  1194.  (l)  2  Wils.  165. 

(m)  Bro.  Abr.  tit.  Corporation,  28,  Cas.  Pr.  C.  P.  8.  Argent  v.  Dean  &  Chapter  of  St. 
PauFs,  E.  23  Geo.  III.  K.  B.  cited  in  2  Durnf.  &  East,  16,  and  16  East,  8,  in  notis. 

(n)  See  2  Durnf.  &  East,  16.    16  East,  7,  (a). 

(o)  2  Durnf.  &  East,  16.  Crookson  v.  Lord  Lonsdale,  B.  29  Geo.  III.  K.  B.  cited  in  16  East, 
7,  (a),  and  see  1  Moore  &  P.  2,  as  to  the  adjournment  of  an  essoin,  on  a  writ  of  right. 

(a)  Gilb.  C.  14,  Trye,  in  pre/.  (b)  Append.  Chap.  V.  §  7.  (c)  Id.  |  20. 

(d)  Gilb.  Dist.  18,  &c.  Run.  Eject.  2  Ed.  136.    3  Blac.  Com.  280.  (e)  Finch,  L.  355. 

(/)  3  Barn.  &  Cres.  772.     5  Dowl.  &  Ryl.  719,  S.  C. 

Iff)  Bro.  Abr.  tit.  Attachment,  pi.  9,  and  see  Dalt.  Sher.  Chap.  32,  p.  154,  &c. 

(hh)  6  Durnf.  &  East,  137.  {ii)  Append.  Chap.  V.  §  21. 

(kk)  Id.  ?  22.  (11)  Id.  §  23,  4. 

(mm)  Finch,  L.  352.    Stat.  Westm.  2,  c.  39.    2  Inst.  453.    5  Mod.  117. 


OF  PROCESS  BY  ORKJINAL.  110 

In  the  King's  Bench,  the  sheriff,  on  the  first  distringas,  usually  re- 
turned issues  to  the  amount  of  forty  shillings  :  and  this  was  so  much  of 
course,  that  no  more  could  have  been  levied  by  the  sheriff  in  the  first  in- 
stance ;  and  therefore  the  levying  of  the  whole  debt  at  once,  on  a  testatum 
distringas,  has  been  deemed  irregular  :(«)  And  where  the  defendant  was 
called  in  the  writ  by  a  wrong  name,  the  sheriff  was  holden  not  to  be  jus- 
tified in  taking  his  goods  under  it.(o)  If  the  defendant  did  not  appear," 
before  or  on  the  quarto  die  iiott  of  the  return  of  the  first  dis- 
tringas, the  plaintiff  sued  *out  an  alias  distringas, {a)  and  there-  [  *111  ] 
upon  moved  the  court  to  increase  the  issues ;  a  proceeding  that 
seems  to  have  come  in  lieu  of  the  writ  of  averment.{h)  In  general,  if  the 
debt  were  small,  the  court  would  order  issues  to  be  returned  at  once  to 
the  amount  of  it ;  but  otherwise,  on  the  defendant's  non-appearance,  the 
plaintiff  sued  out  a  pluries,{c)  or  testatum{d)  distringas,  and  moved  the 
court  a  second  time,  and  so  toties  quoties,  until  issues  were  returned  to 
the  amount  of  the  debt.  When  that  was  done,  the  plaintiff  applied  to  the 
court,  for  a  rule  for  sale  of  the  issues,(c)  under  the  statute  10  Geo.  III.  c. 
50,  §  3,  which  enacts,  that  "  the  court  out  of  which  the  writ  proceeds,  may 
order  the  issues,  levied  from  time  to  time,  to  be  sold,  and  the  money  aris- 
ing thereby  to  be  applied,  to  pay  such  costs  to  the  plaintiff,  as  the  said 
court  shall  think  just,  under  all  the  circumstances,  to  order  ;  and  the  sur- 
plus to  be  retained,  until  the  defendant  shall  have  appeared,  or  other  pur- 
pose of  the  writ  be  answered:"  which  statute  was  construed  to  extend  to 
all  writs  of  distringas,  and  not  to  be  confined  to  such  as  concerned  privi- 
lege of  parliament  only.(/)  And  the  costs  of  a  distringas,  &c.,  were 
directed  to  be  taxed,  and  that  the  sheriff  should  sell  the  issues  to  pay  such 
costs,  though  the  defendant  had  appeared  after  the  issues  were  levied,  but 
before  they  were  sold.fr/) 

The  process  upon  an  original  writ  of  trespass  qnare  clausum  fregit,  in 
the  Common  Pleas,  was  similar  to  that  in  the  King's  Bench.  And,  for  expe- 
diting the  proceedings,  writs  of  distringas,  in  the  Common  Pleas,  might 
have  been  made  returnable  on  any  day  in  term,(7i)  and  need  not  have  had 
fifteen  days  between  the  teste  and  return  ;(z')  and  it  was  arule,(/c)  that  upon 
all  writs  of  distringas,  returnable  the  last  day  of  term,  the  plaintiff  should 
be  at  liberty,  at  the  rising  of  the  court,  to  move  to  increase  issues  on  the 
alias  or  pluries  distringas,  to  be  issued  thereupon  on  the  following  day,  in 
case  no  appearance  should  have  then  been  entered ;  and  also  that  in  like 
cases,  where  a  distringas  should  be  returnable  on  the  last  day  of  term,  and 
issues  thereupon  levied,  the  plaintiff  should  be  at  liberty,  at  the  rising  of  the 
court,  to  move  for  leave  to  sell  such  issues,  to  pay  the  costs  of  such  dis- 
tringas or  distringases."  Where  the  debt  was  small,  the  court  of  Common 
Pleas  usually  ordered  the  issues  to  be  increased  to  the  full  amount  of  it,  on 
the  second  or  alias  distringas ;  but  if  it  were  large,  they  would  order  40/. 
or  501.  to  be  levied  on  the  second,  and  the  remainder  on  the  third  or  jjIu- 

(w)4  East,  162. 

(o)  6  Duruf.  &  East,  234,  and  see  8  East,  328.  2  Campb.  270.  3  Campb.  108.  2  Taunt. 
399.  1  Marsh.  75.  1  Moore,  105.  1  Barn.  &  Aid.  647.  1  Chit.  Rep.  282.  2  Chit.  Rep. 
357.     6  Price,  34.     8  Moore,  300,  301.     1  Bing.  316,  S.  C. 

(a)  Append.  Chap.  VI.  g  5.  (6)  Thu.  Drev.  144,  5. 

(c)  Append.  Chap.  VI.  |  5. 

{d)  Id.  §  6.    4  East,  162.  («)  Append.  Chap.  VI.  I  7,  8,  9. 

(/)  5  Bur.  2726,  7.  (g)  2  Chit.  Rep.  36.  (/.)  Imp.  C.  P.  7  Ed.  593. 

(t)  Id.  ibid,  in  viarg.  {k)  R.  T.  38  Geo.  III.  C.  P.  1  Dos.  &  Pul.  312. 


2J^;j  OP  PROCESS  BY  ORIGINAL. 

ries  distringas ;{l)  and  it  was  in  the  discretion  of  the  court,  to  put  the 
defendant  under  terms  of  pleading  instanter,  and  taking  short  notice  of 
trial,  when  he  moved  to  have  the  issues  levied  upon  several  distringases 
restored  to  him  on  his  appearance,  according  to  the  stat.  10  Geo.  III.  c. 

50,  §  4.(m) 
[  *112  ]  *When  a  defendant  resided  ahroad,  and  no  person  here  had  an 
authority  to  appear  for  him,  his  goods  could  not,  it  seems,  have 
been  taken  under  a  writ  of  distri^igas,  issuing  out  of  the  court  of  Common 
Pleas,  to  compel  his  appearance. (a)  So,  where  a  plaintiff  sued  a  defend- 
ant who  was  out  of  the  country,  for  a  debt  contracted  here  by  his  wife  in 
his  absence,  and  proceeded  by  distringas,  that  court  ordered  the  writ  to  be 
set  aside,  and  the  issues  levied  under  it  to  be  restored. (J)  And  in  another 
case,((?)  they  set  aside  a  distringas,  executed  upon  the  goods  of  the  wife 
of  a  surgeon  in  the  navy,  serving  on  a  foreign  station,  the  debt  not  being 
contracted  in  the  wife's  trade.  But  where  the  defendant  quitted  the  king- 
dom before  the  action  commenced,  leaving  another  in  possession  of  his 
house  and  goods,  and  the  plaintiff,  having  served  a  summons  to  appear  at 
the  house,  distrained  the  defendant's  goods  to  compel  an  appearance,  the 
court  held  it  to  be  regular. (c^Z)  So  where  the  defendant,  residing  abroad, 
carried  on  trade  in  England,  a  plaintiff  might  have  proceeded,  notwith- 
standing his  absence,  to  compel  an  appearance  hy  distriyigas ;  particularly 
if  the  plaintiff  did  not  know,  at  the  time  of  giving  credit,  that  the  defend- 
ant was  out  of  the  realm. (c)  And  where  three  partners  (two  of  whom 
resided  abroad,  and  one  in  England,)  were  sued  for  a  partnership  debt, 
and  the  partner  resident  in  Engla^id  appeared  to  the  action,  but  refused 
to  appear  for  the  partners  who  resided  abroad,  the  sheriff,  under  a  distrin- 
gas issuing  out  of  the  Common  Pleas  against  the  two  partners,  might  have 
taken  partnership  effects,  though  paid  for  by  the  partner  resident  in  Eng- 
land alone,  to  whom  the  partnership  was  largely  indebted ;  and  the  court 
would  not  have  relieved  him  from  such  dis tress.  (/)  But  where  an  action 
had  been  commenced  against  two  partners,  one  of  whom  resided  abroad, 
and  the  other,  who  was  resident  here,  appeared  for  himself  only,  the  court 
of  Common  Pleas  set  aside  a  distringas  and  subsequent  proceedings  there- 
on, against  the  latter  defendant,  and  ordered  the  issues  levied  upon  his 
separate  property  to  be  restored  :  So  that  where  there  are  no  partnership 
effects,  there  is  no  other  mode  of  proceeding  in  such  case,  than  by  outlaw- 
ing the  defendant  who  is  abroad.((/) 

The  method  of  proceeding  by  summons,  attachment,  and  distress  infi- 
nite, is  not  affected  by  the  statutes  for  preventing  frivolous  and  vexatious 
arrests  ;(7i)  which  only  relate  to  process  against  the  person.  And  as  no 
capias  lay,  it  was  the  only  method  of  proceeding  against  peers  of  the  realm, 
corporations,[i)  and  hundredors  on  the  statutes  of  hue  and  cry,(Z^)  &c.,  as 
it  is  now  on  the  statute  7  &  8  Geo.  IV.  c.  31.  But  this  method  of  pro- 
ceeding being  found  extremely  dilatory  and  expensive,  as  well  as 
[  *113  ]    oppressive  to  the  *defendant,  particularly  when  he  resided  abroad, 

(l)  Imp.  G.  P.  4  Ed.  p.  61 7,  18.  [m)  1  Bos.  &  Pul.  81. 

(a)  Webster  v.  M'Narnara,  T.  32  Geo.  III.  C.  P.  Imp.  C.  P.  7  Ed.  594. 

(6)  1  Taunt.  485.  (c)  3  Taunt.  146.  {d)  1  Bos.  &  Pul.  200. 

(e)  1  Taunt.  487.  (/)  3  Bos.  &  Pul.  254,  and  see  5  Price,  522. 

[g)  4  Taunt.  299. 

{h)  12  Geo.  I.  c.  29,  ?  1,  2.     5  Geo.  II.  c.  27.     Barnes,  407,  8,  9,  and  see  the  preamble  to 

e  second  section  of  the  statute  51  Geo.  III.  c.  124,  which  is  now  expired. 

[i)  Com.  Dig.  tit.  Pleader,  2  B.  2,    6  Mod.  183.  {k)  3  Keb.  126. 


OF  PROCESS  BY  ORIGINAL.  llg 

a  rule  of  court  was  made  in  the  Common  Pleas,(rta)  calculated  to  pre- 
vent surprise  on  the  defendant;  whereby  it  was  ordered,  that  "in  every 
action  to  be  commenced  by  original  writ  of  quare  clausum  fregit,  there 
should  be  written  or  printed,  under  the  summons  to  be  served  by  the 
sheriff's  officer  on  such  writ,  a  notice  similar  to  tliat  required  on  other  ser- 
viceable process,  of  the  intent  and  meaning  of  such  service ;  and  that 
upon  every  distringas,  to  be  issued  in  default  of  the  defendant's  appear- 
ance to  such  quare  clausum  frcgit,  there  should,  at  the  time  of  the  execu- 
tion of  such  distringas,  be  served  by  the  sheriff's  officer  on  the  defendant, 
if  he  could  be  met  with,  or  if  not,  left  at  his  dwelling  house  or  place  where 
such  distringas  should  be  executed,  a  written  or  printed  notice,  apprising 
him  of  the  cause  of  the  distress,  and  that  in  default  of  his  appearance  at 
the  return  of  the  writ,  he  would  be  liable  to  be  distrained  upon  for  such 
further  sum  as  the  court  should  order." 

At  length,  it  Avas  enacted  by  the  statute  7  k  8  Geo.  IV.  c.  71, (W)  that 
"  in  all  cases  where  the  plaintiff  or  plaintiffs  shall  proceed  by  original  or 
other  writ,  and  summons  or  attachment  thereupon,  or  by  sulijcena  and 
attachment  thereupon,  in  any  action  at  law,  against  any  person  or  persons 
not  having  privilege  of  parliament,  no  writ  of  distringas  shall  issue  for 
default  of  appearance ;  but  the  defendant  or  defendants  shall  be  served 
personally  with  the  summons  or  attachment,  at  the  foot  of  which  shall  be 
written  a  notice,  informing  the  defendant  or  defendants  of  the  intent  and 
meaning  of  such  service,  to  the  effect  following. "(<?) 

'  C.  D.  \naming  the  defendant'].  You  are  served  with  this  process,  at 
the  suit  of  A.  B.  [jiaming  the  plaintiff  or  plaijitiffs,']  to  the  intent  that 

you  may  appear  by  your  attorney,  in  his  majesty's  court  of at 

Westminster,  at  the  return  hereof,  being  the day  of ,{d) 

in  order  to  your  defence  in  this  action :  And  take  notice,  that  in  default 
of  your  appearance,  the  said  A.  B.  will  cause  an  appearance  to  be  entered 
for  you,  and  proceed  thereon,  as  if  you  had  yourself  appeared  by  your 
attorney.' 

"  But  in  case  it  shall  be  made  appear  to  the  satisfaction  of  the  court, 
or,  in  the  vacation,  of  any  judge  of  the  court  from  which  such  process  shall 
issue,  or  into  which  the  same  shall  be  returnable,  that  the  defendant  or  de- 
fendants could  not  be  personally  served  with  such  summons  or  attachment,(^) 
and  that  such  process  had  been  duly  executed  at  the  dwelling  house  or  place 
of  abode  of  such  defendant  or  defendants,  that  then  it  shall  and  may 
be  lawful  for  the  plaintiff  or  plaintiffs,  by  leave  of  the  *court,(a)  or  [  *114  ] 
order  of  such  judge  as  aforesaid,(a)  to  sue  out  a  writ  of  distrin- 
gas,{h)  to  compel  the  appearance  of  such  defendant  or  defendants;  and  that 
at  the  time  of  the  execution  of  such  writ  of  distringas,  there  shall  be  served 
on  the  defendant  or  defendants,  by  the  officer  executing  such  writ,  if  he  she 

[aa)  R.  H.  49  Geo.  III.  C.  P.     1  Taunt.  204,  505,  and  see  id.  59. 

[bb)  I  5,  and  see  stat.  51  Geo.  III.  c.  124,  ?  2,  continued  bj  57  Geo.  III.  c.  101,  but  which 
had  expired  before  the  passing  of  the  T  &  8  Geo.  IV.  c  71. 

(f)  Append.  Chap.  V.  ?  14. 

\d)  Tlicse  blanks  must  be  filled  up  with  the  day  of  the  month  when  the  process  is  return- 
able; it  having  been  holden,  that  notice  to  appear  at  the  return  of  the  writ,  being  "from 
Easter  day  in  one  month,"  is  bad.     4  Taunt.  751. 

(c)  Append.  Chap.  V.  ^  17.  And  for  the  forms  of  returns  to  the  original,  on  the  above 
statute,  see  id.  g  15,  16. 

(fll  For  the  form  of  the  rule  of  court,  and  judge's/a<  in  vacation,  see  Append.  Chap.  V.  ^ 
18,19. 

(5)  Append.  Chap.  V.  23,  24. 


114 


OF  PROCESS  BY  ORIGIXAL. 


or  they  can  be  met  with;  and  if  he  she  or  they  cannot  then  be  met  with, 
there  shall  be  left  at  his  her  or  their  dwelling  house,  or  other  place  where 
such  distringas  shall  be  executed,  a  written  notice  in  the  following 
form  :"(c) 

'In  the  court  of [specifying  the  court  in  which  the  suit  shall 

he  depending.']  Between  A.  B.  plaintiff,  and  C.  D.  defendant,  [riaming  the 
parties.'}  Take  notice,  that  I  have  this  day  distrained  upon  your  goods 
and  chattels,  for  the  sum  of  forty  shillings,  in  consequence  of  your  not  hav- 
ing appeared  by  your  attorney  in  the  said  court,  at  the  return  of  a  writ  of 

,  returnable  there  on  the day  of ;  and  that  in 

default  of  your  appearing  to  the  present  writ  of  distringas,  at  the  return 

thereof,  being  the day  of ,  the  said  A.  B.  will  cause  an 

appearance  to  be  entered  for  you,  and  proceed  thereon,  as  if  you  had  your- 
self appeared  by  your  attorney.'  E.  F. 

l^The  name  of  the  sheriff's  officer.'] 
'  To  C.  D.  the  above-named  defendant.' 

"  And  if  such  defendant  or  defendants  shall  not  appear  at  the  return  of 
such  original  or  other  writ,  or  of  such  distringas,  as  the  case  may  be,  or 
within  eight  days  after  the  return  thereof,  in  such  case  it  shall  and  may  be 
lawful  to  and  for  the  plaintiff  or  plaintiffs,  upon  affidavit  being  made  and 
filed  in  the  proper  court,  of  the  personal  service  of  such  summons  or  attach- 
ment, (t/)  and  notice  written  on  the  foot  thereof  as  aforesaid,  or  of  the  due 
execution  of  such  distringas,{e)  and  of  the  service  of  such  notice  as  is 
thereby  directed  on  the  execution  of  such  distringas,  as  the  case  may  be,  to 
enter  a  common  appearance  for  the  defendant  or  defendants,  and  to  proceed 
thereon,  as  if  such  defendant  or  defendants  had  entered  his  her  or  their  ap- 
pearance, any  law  or  usage  to  the  contrary  notwithstanding ;  and  that  such 
affidavit  or  affidavits  may  be  made  before  any  judge  or  commissioner  of  the 
court,  out  of  or  into  which  such  writs  shall  issue  or  be  returnable,  authorized 
to  take  affidavits  in  such  court,  or  else  before  the  proper  officer  for  entering 
common  appearances  in  such  court,  or  his  lawful  deputy;  and  which  affida- 
vit is  thereby  directed  to  be  filed  gratis.'' 

The  provisions  of  this  statute  extend  to  the  process  by  subpoena  and 
attachment,  and  also,  as  it  seems,  to  the  process  by  distringas  in  the  Ex- 
chequer, as  well  as  in  the  other  superior  courts  at  'Westminster ;(/) 
[  *115  ]  And  the  *court  of  Common  Pleas  will  not  grant  a  distringas 
against  a  defendant  who  has  gone  abroad,  without  proof  of  his 
having  absented  himself  with  intent  to  avoid  the  process,  (a)  To  ground  a 
motion  for  a  distringas  on  the  above  statute,  an  affidavit  must  be  made  by 
the  sheriff's  officer,  or  person  employed  to  serve  the  venire,  stating  that  he 
has  endeavored  to  serve  it  on  the  defendant  personally,  for  which  purpose 
he  has  made  three  several  applications  at  least  at  his  dwelling  house  or  place 
of  abode,  the  last  of  which  was  on  the  return  day  of  the  writ,  when  he  left 
the  summons,  or  copy  of  the  venire,  with  one  of  the  defendant's  family, 
or  the  person  with  whom  he  lodged ;  but  that  he  could  not  be  personally 
met  with,  and  that  deponent  believes  the  defendant  kept  out  of  the  way,  to 

(c)  Id.  §  25.  {d)  Id.  I  29. 

(e)  Id.  g  30,  31.  And  for  the  forms  of  return  to  the  distringas,  on  the  above  statute,  see 
id.  §  26,  7,  8. 

(/)  5  Taunt.  71,  (a),  but  see  3  Price,  263.  Id.  266,  n.  5  Price,  522,  639.  Post,  Chap. 
VlII.  by  which  it  seems,  that  the  ancient  practice  of  issuing  writs  oi  distrinc/as,  after  service 
of  the  venire  facias,  in  the  Exchequer,  still  continues. 

(a)  5  Taunt.  703.     1  Marsh.  292,  S.  C. 


OF  THE  PROCEEDINGS,  ETC.,  115 

avoid  being  served, (J)  with  his  reason  for  such  belief  .-(c)  and  tlie  affidavit 
must  set  forth  the  tenor  of  the  summons, (tZ)  and  notice  subscribed  to  the 
process,  in  hocc  verha.{e)  This  clause  of  the  statute,  however,  does  not 
extend  to  the  process  by  attachment  on  a  justifies,  in  a  county  palatine ;(/) 
nor  to  persons  having  privilege  of  parliament,  the  proceedings  against  whom 
will  be  considered  in  the  following  chapter.  And  the  method  of  proceeding 
by  summons  or  attachment  and  distrimjas,  subject  to  the  restrictions  of  the 
statute,  may  still  be  used  against  other  persons,  where  they  keep  out  of  the 
way,  so  that  they  cannot  be  arrested,  or  served  with  process. 


CHAPTER    VI.  [  *116  ] 

Of  the  Proceedings  in  Actions  against  Peers  of  the  Realm,  and 
Members  of  the  House  of  Commons  ;  and  against  Corporations,  and 
IIundredors. 

At  common  law,  it  seems  that  peers  of  the  realm,  and  members  of  the 
house  of  commons,  not  being  subject  to  a  capias,  could  only  have  been  sued 
hy  original  vivit.  But  now,  by  statute  12  &  13  W.  III.  c.  3,  §  2,(a)  "any 
person  or  persons  having  cause  of  action  against  any  knight,  citizen  or 
burgess  of  the  house  of  commons,  or  any  other  person  entitled  to  privilege 
of  parliament,  may  prosecute  such  knight,  &c.  in  his  majesty's  court  of 
King's  Bench,  Common  Pleas,  or  Exchequer,  by  summons  and  distress 
infinite,  or  by  original  hill  and  summons,  attachment,  and  distress  infinite  ; 
which  the  said  respective  courts  are  empowered  to  issue  against  them,  or 
any  of  them,  until  he  or  they  shall  enter  a  common  appearance,  or  file 
common  bail  to  the  plaintiff's  action,  according  to  the  course  of  each  re- 
spective court." 

And,  for  preventing  inconveniences  arising  from  merchants,  and  other 
persons  within  the  description  of  the  statutes  relating  to  bankrupts,  being 
entitled  to  privilege  of  parliament,  and  becoming  insolvent,  it  is  enacted,  by 
the  statute  6  Geo.  IV.  c.  1(3,(56)  that  "  if  any  trader,  liable  to  become  bank- 
rupt, having  privilege  of  parliament,  shall  commit  any  of  the  acts  of  bank- 
ruptcy therein  mentioned,  a  commission  of  bankrupt  may  issue  against 
him;  and  the  commissioners,  and  all  other  persons  acting  under  such  com- 
mission, may  proceed  thereon,  in  like  manner  as  against  other  bankrupts; 
but  such  person  shall  not  be  subject  to  be  arrested  or  imprisoned,  during  the 
time  of  such  privilege,  except  in  cases  thereby  made  felony.  And  if  any 
creditor  or  creditors  of  any  such  trader,  having  privilege  of  parliament,  to 
such  amount  as  is  thereinafter  declared  requisite  to  support  a  commission, 
shall  file  an  afiidavit  or  aflBdavits,  in  any  court  of  record  at  Westminster, 
that  such  debt  or  debts  is  or  are  justly  due  to  him  or  them  respectively,  and 

[b)  4  Taunt.  156,  and  see  8  Taunt.  57,  171. 

(c)  5  Taunt.  620.     1  Marsh.  267,  S.  C,  and  see  id.  268,  {a).     5  Taunt.  853.     8  Taunt.  67, 
171.     M  693.     3  Moore,  23,  S.  C. 

{d)  4  Taunt.  619.  (e)  5  Taunt.  853.  (/)  Td.  69. 

(a)  For  the  history  of  this  statute,  and  the  alterations  it  underwent  in  the  House  of  Lords, 
see  2  H.  Blac.  273,  4,  300,  &c. 
{bh)  I  9,  and  see  stat.  4  Geo.  III.  c.  33.     45  Geo.  III.  c.  124,  g  1. 


IIQ  OF  THE  PROCEEDINGS 

that  such  debtor,  as  he  or  thej  verily  believe,  is  such  trader  as  aforesaid, 
and  shall  sue  out  of  the  same  court  a  summons,  or  an  Original  bill  and 
summons,  against  such  trader,  and  serve  him  with  a  copy  of  such  summons, 

if  such  trader  shall  not,  within  one  calendar  month  after  personal 
[  *117  ]  service  of  such  summons,  pay,  *secure,  or  compound  for  such 

debt  or  debts,  to  the  satisfaction  of  such  creditor  or  creditors,  or 
enter  into  a  bond  with  such  sum,  and  with  two  sufficient  sureties,  as  any 
of  the  judges  of  the  court  out  of  which  such  summons  shall  issue  shall  ap- 
prove of,  to  pay  such  sum  as  shall  be  recovered  in  such  action  or  actions, 
together  with  such  costs  as  shall  be  given  in  the  same,  and  within  one 
calendar  month  next  after  personal  service  of  such  summons,  cause  an 
appearance  or  appearances  to  be  entered  to  such  action  or  actions,  in  the 
proper  court  or  courts  in  which  the  same  shall  have  been  brought,  every 
such  trader  shall  be  deemed  to  have  committed  an  act  of  bankruptcy,  from 
the  time  of  the  service  of  such  summons :  and  any  creditor  or  creditors  of 
such  trader,  to  such  amount  as  aforesaid,  may  sue  out  a  commission  against 
him,  and  proceed  thereon,  in  like  manner  as  against  other  bankrupts. "(a) 
This  clause  appears  to  have  been  taken  from  a  similar  one  in  the  statute 
4  Geo.  III.  c.  33 ;  upon  which  it  was  holden,  that  a  bond  given  under 
the  latter  statute,  is  analogous  to  a  recognizance  of  bail  in  error :  and 
therefore,  where  a  member  of  parliament  had  given  a  bond,  with  two  sure- 
ties conditioned  for  payment  of  the  sum  to  be  recovered  in  the  action,  and 
before  trial  became  bankrupt,  the  court  refused  to  order  the  bond  to  be 
delivered  up  to  be  cancelled.(^) 

By  a  subsequent  clause,  in  the  statute  6  Geo.  IV.  c.  16,(c)  it  was 
enacted,  that  "  if  any  decree  or  order  shall  have  been  pronounced  in  any 
cause  depending  in  any  court  of  equity,  or  any  order  made  in  any  matter 
of  bankruptcy,  or  lunacy,  against  any  such  trader  having  privilege  of  par- 
liament, ordering  such  trader  to  pay  any  sum  of  money,  and  such  trader 
shall  disobey,  the  same  having  been  duly  served  upon  him,  the  person  or 
persons  entitled  to  receive  such  sum,  under  such  decree  or  order,  or 
interested  in  enforcing  the  payment  thereof,  pursuant  to  such  decree  or 
order,  may  apply  to  the  court  by  which  the  same  shall  have  been  pro- 
nounced, to  fix  a  peremptory  day  for  the  payment  of  such  money,  which 
shall  accordingly  be  fixed  by  an  order  for  that  purpose ;  and  if  such 
trader,  being  personally  served  with  such  last  mentioned  order,  eight 
days  before  the  date  therein  appointed  for  payment  of  such  money,  shall 
neglect  to  pay  the  same,  he  shall  be  deemed  to  have  committed  an  act  of 
bankruptcy,  from  the  time  of  the  service  thereof;  and  any  such  creditor 
or  creditors  as  aforesaid  may  sue  out  a  commission  against  him,  and 
proceed  thereon,  in  like  manner  as  against  other  bankrupts." 

Since  the  making  of  the  statute  12  &  13  W.  III.  c.  3,  §  2,  members  of 
the  house  of  commons  may  be  sued  by  bill  and  summons,  &c.,  as  well  as 
by  original  writ.(fZ)  And  if  a  person  having  privilege  of  parliament  be  in 
the  King's  Bench  prison,  a  declaration  may  be  filed  against  him,  as  being 
in  the  custody  of  the  marshal ;  and  no  summons  need  be  issued. (e) 
[  *118  ]  There  *are  also  two  cases,  in  which  it  has  been  determined,  that 

(«)  §  10. 

(b)  3  Barn.  &  Aid.  273.     1  Chit.  Rep.  731,  S.  C,  and  see  5  Barn.  &  Aid.  250. 

(c)  ?  11,  and  see  stat.  47  Geo.  111.  sess.  2,  c.  40. 

(d)  2  Ld.  Raym.  1442.     2  Str.  734,  S.  C.     But  this  mode  of  proceeding  is  not  allowed,  as 
against  unprivileged  persons.     Whitworlh  v.  Richardson,  E.  23  Geo.  III.  K.  B. 

(e)  5  Durnf.  &  East,  361. 


AGAINST  PEERS,  ETC.  118 

a  iieer  of  the  realm  may  be  sued  in'  the  King's  Bench,  by  hill  and 
summons,(a)  &c.  But  in  a  subsequent  case,(i)  it  was  the  opinion  of 
the  judges,  on  a  question  referred  to  them  in  the  house  of  lords,  that  these 
cases  were  not  to  be  considered  as  decisive  authorities  on  the  subject ; 
though,  after  pleading  in  chief,  it  was  too  late  for  the  defendant  to  object 
to  the  jurisdiction  of  the  court. (c)  It  seems  therefore  that,  notwithstand- 
ing the  above  statute,  the  only  regular  mode  of  proceeding  against  a  peer, 
is  by  original  writ.(ti)  And  if  a  peer  be  sued  jointly  with  others,  by  bill 
of  3Iiddh'sex,  the  court  will  set  aside  the  proceedings,  as  against  the 
peer.((;)  But  the  motion  for  this  purpose  must  be  made  as  soon  as  may 
be,  and  before  interlocutory  judgment.(/)  And  if  an  Irish  peer  be  sued 
by  bill,  the  court  of  Common  Pleas  will  not  set  aside  the  proceedings  on 
motion ;  but  leave  him  to  plead  his  privilege  in  abatement. (^)  It  was 
formerly  doubted,  whether  a  member  of  the  house  of  commons  was  entitled 
to  his  privilege,  when  sued  with  a  common  person  ;(/i)  but  it  is  now  settled, 
that  his  privilege  shall  be  allowed  hira.(?)  And  where  an  action  is  brought 
against  a  peer  or  member  of  the  house  of  commons,  jointly  with  other 
persons,  the  original  writ  or  bill  should  be  against  all  the  defendants ; 
upon  which  the  peer  or  member  should  be  summoned,  and  a  cajjias  issued 
against  the  others. 

The  original  writ  against  a  peer,  or  member  of  the  house  of  commons, 
is  the  same  as  against  other  persons  ;{k)  only  that  when  it  is  issued  against 
a  peer,  the  sheriif  is  commanded  to  summon  him  by  good  summoncrs  ;  and 
after  describing  the  defendant  by  his  proper  title,  these  words  are  added, 
"  having  privilec/e  of  peerage,"  or,  against  a  member  of  the  house  of  com- 
mons, ^^ having  privilege  of  parliament."     And  it  is  said,  that  a  peer  or 
peeress  cannot  be  attached,  but  should  be  brought  in  by  summons  :{l) 
Yet,  where  a  declaration  in  case  against  an  earl,  stated  him  to  have  been 
summoned  to  answer,  instead  of  attached,  it  was  holden  to  be  bad,  on 
special  demurrer.(m)     In  proceeding  by  original  vfnt,{n)  against  a  peer  or 
member  of  the  house  of  commons,  the  original  should  issue  into  that  county 
where  the  defendant  lives  ;  and  a  sum))ions  is  made  out  thereon  by  the 
plaintiff's  attorney,  and  delivered  to  the  sheriff,  who  serves  it  on  the  de- 
fendant personally,  or  by  leaving  it  at  his  dwelling  house,  or  last  place  of 
abode. (o)     And  where,  upon  process,  by  original  writ,  against  a  member 
of  the  house  of  commons,  the  summons  omitted  to  describe  him  as  having 
privilege  of  parliament,  and  the  notice  at  the  foot  stated,  that  in  default  of 
his  appearance,  on  the  return  day  of  the  writ,  the  plaintiff  would 
cause  *an  appearance  to  be  entered  for  him;  the  court  held,  that  [  *119  ] 
the  summons  was  sufficient. (««)    Before  or  on  the  quarto  die  post 
of  the  return  of  the  original,  the  defendant  either  appears  or  makes  default ; 
for  he  cannot  cast  an  essoin. (W)     If  he  make  default,  the  plaintiff  may  sue 

(a)  Say.  Rep.  63,  4.     Cowp.  844. 

(b)  2  H.  Blue.  267,  299,  and  sec  3  Bos.  &  Pul.  7,  9,  (b).     12,  (a). 

(c)  See  also  Bro.  Abr.  lit.  liill,  pi.  6,  and  liesponder,  pi.  30. 

(rf)  2  II.  Blac.  267,  299.     Lil.  Ent.  21.  (e)  3  Maule  &  Sel.  88. 

(/)  Lady  Napier's  case,  T.  21  Geo.  III.  K.  B. 

(g)  7  Taunt.  679.     1  Moore,  410,  S.  C.  (A)  1  Taunt.  256. 

(i)  4  Maulc  &  Sel.  585.  (k)  Append.  Chap.  V.  g  I,  &c. 

(I.)  1  Str.  225.  (m)  2  Chit.  Rep.  638,  9! 

(n)  For  the  form  of  &  prcvcipe  for  an  original  writ  in  debt,  or  case,  against  a  peer,  or  mem- 
ber of  the  house  of  commons,  see  Append.  Chap.  VI.  g  1,  2,  3. 
(o)  2  Cromp.  3  Ed.  138. 
{aa)  5  JIaule  k  Sel.  221.  {bb)  Ante,  109. 


219  OF  THE  PROCEEDINGS 

out  a  testatum  summons,(<?(?)  or  (which  is  more  usual,)  a  distrmgas,{dd)  and 
after  that,  (if  necessary,)  an  alias  or  pluries  distringas  ;{e)  upon  which  he 
may  move  to  increase  and  sell  the  issues,  as  was  formerly  usual  in  other 
cases :(/)  Or,  upon  an  affidavit  of  the  personal  service  of  the  summons, 
he  may  proceed  against  members  of  the  house  of  commons,  by  entering 
an  appearance,  in  the  manner  pointed  out  by  the  statute  45  Geo.  III.  c. 
124,  §  3.(  (/)  If  the  sheriiF  return  upon  the  distringas,  ^c,  that  the  de- 
fendant hath  nothing  by  which  he  can  be  distrained,  the  plaintiff  may  have 
a  testatum  distringas  into  another  county. (A)  And  after  a  summons  and 
distringas  had  issued  against  a  privileged  defendant,  in  the  county  where 
the  action  was  brought,  but  in  which  he  did  not  reside,  and  of  which  pro- 
cess he  had  no  notice,  and  returns  were  made  of  non  est  inventus  and 
7UiUa  bona,  it  was  holden,  that  a  testatum  distringas  might  regularly  issue 
into  the  county  in  which  he  resided  and  had  property,  without  any  new 
summons  in  such  county.  (^) 

The  distringas  and  other  subsequent  process  upon  the  original,  state 
the  cause  of  action  at  large(^)  and  must  be  made  returnable,  in  the  King's 
Bench,  on  a  general  return-day,  ubicunque,  or  ivheresoever  the  king  shall 
then  be  in  England  ;  or,  in  the  Common  Pleas,  before  the  king's  justices 
at  Westminster.  Each  succeeding  writ  must  be  tested  on  the  quarto  die 
post  of  the  return  of  the  preceding  one  ;  and  there  must  be  fifteen  days 
at  least  between  the  teste  and  return. (Z) 

If  the  defendant  appear  upon  any  of  these  writs,  he  should  enter  his 
appearance  with  the  filacer ;  and  when  the  purpose  of  the  writ  is  thus 
answered,  the  issues,  (if  any  have  been  levied,)  are  directed  to  be  returned; 
or  if  sold,  what  shall  remain  of  the  money  arising  by  such  sale  is  to  be 
repaid  to  the  party  distrained  upon.(w)  But  the  plaintiff  in  such  case  is 
entitled  to  his  costs :  And  where  he  had  obtained  rules  for  selling  the 
issues  levied  upon  a  distringas,  alias,  and  pluries,  and  also  a  rule  for  an 
attachment  against  the  sheriff,  but  the  defendant  appeared  before  any 
issues  had  been  actually  levied,  the  court  ordered,  that  upon  payment  of 
the  costs  of  issuing  the  writs,  the  rules  should  be  discharged ;  being  of 
opinion,  that  these  costs  were  not  to  abide  the  event  of  the-  suit,  but  were 
to  be  paid  to  the  plaintiff  immediately  and  at  all  events,  whether  he  should 
finally  succeed  in  the  suit  or  not.(w) 


[  *120  ]  *The  bill  against  a  member  of  the  house  of  commons,  is  a  com- 
plaint in  writing,  describing  the  defendant  as  having  privilege  of 
parliament  ;[a)  and  concludes  with  a  prayer  by  the  plaintiff,  or  process  to 
be  made  to  him,  according  to  the  form  of  the  statute,  &c.  This  bill  is  filed, 
in  the  King's  Bench,  with  the  clerk  of  the  declarations,  in  the  King's 
Bench  office :  And  if  the  bill  be  filed  in  vacation,  for  a  cause  of  action 

(cc)  Append.  Chap.  VI.  ?  20. 

{dd)  Trye,  9.     Append.  Chap.  VI.  §  4. 

(e)  Append.  Chap.  VI.  §  5. 

If)  Ante,  \1(},U.     Append.  Chap.  VI.  ^  7,  8,  9.  [g]  Post,  120,  21. 

(A)  Trye,  10,  127.     Append.  Chap.  VI.  §  6.  {i)  4  East,  162. 

(A)  Trye,  127.     Append.  Chap.  VI.  |  4,  &c. 

{l)  But  see  the  statutes  16  Car.  I.  c.  6,  I  7.     24  Geo.  II.  c.  48,  I  5.     Ante.  107. 

(to)  Stat.  10  Geo.  III.  c.  50,  I  4.  («)  5  Bur.  2725. 

(a)  Say.  Rep.  64,  and  see  Append.  Chap.  VI.  g  12,  13,  14,  15.     Ante,  118. 


AGAINST  PEERS,  ETC.  120 

arising  after  the  term,  there  should  be  a  special  mcmorandiim,  stating  the 
day  of  bringing  the  bill  into  the  office  of  the  clerk  of  the  declarations. 
In  the  Common  Pleas,  the  bill  is  filed  with  the  filacer  of  the  county  where 
the  venue  is  laid:  In  the  Exchequer,  it  is  filed  with  the  master.  And  the 
first  process  thereon,  in  all  the  courts,  is  a  writ  of  summons  ;{h)  which  is 
a  judicial  writ,  issuing  out  of  the  King's  Bench  or  filacer's  office,  or  office 
of  pleas  in  the  Exchequer,  on  a  proper  p'a?c2j;e,(f)  and  directed  to  the 
sheriff  of  the  county  where  the  venue  is  laid,  commanding  him  to  summon 
the  defendant :  Or,  if  the  defendant  reside  in  a  different  county,  the  plain- 
tiff may  sue  out  a  writ  of  testatum  summons  into  that  county.((Z)  Upon 
one  or  other  of  these  writs  the  defendant  should  be  sunmioned,  in  like 
manner  as  upon  an  original ;  and  if  he  do  not  appear,  Avithin  four  days 
after  the  return  of  it,  is  subject  to  the  process  of  attachment  and  distrin- 
gaSj{e)  &c.  If  he  appear,  his  appearance  should  be  entered,  in  the  King's 
Bench,  with  the  clerk  of  the  common  bails  ;  in  the  Common  Pleas,  with 
the  filacer  of  the  county  into  Avhich  the  summons  issued ;  or,  in  the  Exche- 
quer, in  the  appearance  book  in  the  office  of  pleas. 

The  writ  of  summons,  and  other  subsequent  process  upon  the  bill,  differ 
from  the  process  by  original,  in  the  following  particulars :  first,  that  they 
do  not  state  the  cause  of  action  at  large,  but  only  require  the  defendant 
to  answer  the  plaintiff  generally,  in  a  plea  of  trespass  on  the  case,  (accord- 
ing to  the  plea,)  to  his  damage  of,  ^-c,  as  he  can  reasonably  shoiv  that 
thereof  he  ought  to  ansiver ;{f)  secondly,  that  they  are  tested  on  the  very 
return,  and  not  on  the  quarto  die  post  of  the  return  of  each  other;  thirdly, 
that  they  are  made  returnable  on  days  certain,  and  not  on  general  return 
days ;  and  fourthly,  that  there  need  not  be  fifteeii  days  between  the  teste 
and  return  of  them. 

The  mode  of  proceeding  by  distringas,  against  members  of  the  house  of 
commons,  being  found  extremely  dilatory  and  expensive,  it  was  enacted  by 
the  statute  45  Geo.  III.  c.  124,  §  3,  that  "  when  any  summons,  or  origi- 
nal bill  and  summons,  shall  be  sued  out  against  any  person  having  privi- 
lege of  parliament,  and  no  such  affidavit  shall  be  made  and  filed  as  therein 
is  mentioned,  if  the  defendant  or  defendants  shall  not  appear  at  the  return 
of  the  summons,  or  within  eight  days  after  such  return,  the  plaintiff  or 
plaintiffs,  upon  affidavit  being  made  and  filed  in  the  proper  court,  of  the 
personal  service  of  such  summons,  which  affidavit  shall  be  *filed 
gratis,  may  enter  an  appearance  or  appearances  for  the  defend-  [  *121  ] 
ant  or  defendants,  and  proceed  thereon,  as  if  such  defendant  or 
defendants  had  entered  his  or  their  appearance." 

The  defendant  having  appeared,  or  the  plaintiff  appeared  for  him  accord- 
ing to  the  above  statute,  the  plaintiff  proceeds  to  declare  against  him. (a) 
The  time  allowed  for  declaring  against  a  peer  of  the  realm,  or  member  of 
the  house  of  commons,  is  the  same  as  in  other  cases.  But  in  assigning 
the  breach  in  assumpsit,  against  a  peer  of  the  realm,  the  plaintiff  must  not 
charge  the  defendant  with  contriving  and  fraudulently  intending,  craftily 

(b)  Imp.  K.  B.  10  Ed.  515,  16.     8  Mod.  228,  and  see  Append.  Chap.  VI.  ?  17,  18,  ID. 

(c)  Append.  Chap.  VI.  I  16,  21.  (cf)  Id.  §  20,  and  see  4  East,  162. 
(e)  Id.  §  22,  &c.                                                             (/)  2  Cromp.  3  Ed.  138.     Trye,  127. 
(a)  For  the  form  of  a  note  of  appearance  for,  and  beginnint;  of  a  declaration  by  original 

against  a  peer,  or  member  of  the  liouse  of  commons,  see  Append.  Chap.  VI.  g  10,  II,  and 
for  the  beginning  of  a  declaration  by  bill,  against  a  member  of  the  house  of  commons,  aftcu" 
appearance,  in  C.  P.  sec  id.  I  27,  and  for  the  entry  of  a  bill  and  process  against  a  member, 
to  save  the  statute,  in  K.  B.  see  id.  g  28. 


121 


OF  THE  PROCEEDINGS 


and  suit  illy  to  deceive  and  defraud  him;  for  the  house  of  lords  have 
ailjud'TCcl  it  a  very  high  contempt  and  misdemeanor,  to  charge  a  member 
of  their  house  with  any  species  of  fraud  or  deceit.(i6) 

All  farther  proceedings  against  peers  of  the  realm,  and  members  of  the 
house  of  commons,  are  the  same  as  against  other  persons  ;(c)  only  it  should 
be  remembered,  that  as  no  capias  lies  against  them,  they  cannot  be  taken 
in  execution,  unless  where  the  judgment  is  obtained  upon  a  statute  staple, 
or  statute  merchant,  or  upon  the  statute  of  Acton  Bur7iel,{d)  in  which 
case  a  capias  lies,  even  against  peers  of  the  realm. 


In  proceeding  against  a  Corporation,  the  process  should  be  served  on 
the  Mayor,  or  other  head  officer  ;(e)  and  if  the  defendants  do  not  appear, 
before  or  on  the  quarto  die  post  of  the  return  of  the  original,  by  an  attor- 
ney regularly  appointed,  (for  they  cannot  appear  in  person, )(/)  the  next 
process  is  a  distringas,  which  should  go  against  them  in  their  public  capa- 
city :{g)  and  under  this  process,  the  sheriiF  may  distrain  the  lands  and 
goods,  which  constitute  the  common  stock  of  the  corporation. (7i)  If  they 
have  neither  lands  nor  goods,  there  is  no  way  to  compel  them  to  appear, 
at  law  or  in  equity,(^)  but  only  in  parliament  ;{k)  for  it  is  a  rule,  that  for 
a  public  concern,  the  sheriff  cannot  distrain  any  private  person,  who  is  a 
member  of  the  corporation. (?)[a] 

(bb)  2  Cromp.  3  Ed.  141. 

(c)  8  Mod.  229.  (d)  11  Edw.  I. 

(e)  Sty.  Rep.  367.     Prac.  in  Chan.  131.     1  Chan.  Cas.  206.  (/)  Ante,  92. 

Iff)  1  Vent.  351,  (A)  Skin.  27,  and  see  1  Bot.  143,  pi.  178. 

(j)  Id.     1  Vern.  122.     Skin.  84,  S.  C.     2  Vern.  394.     Prec.  in  Chan.  129,  S.  C. 

(/c)  1  Chan.  Cas.  204. 

[1)  Bro.  Abr.  tit.  Trespass,  135.  1  Vent.  351.  Cowp.  85.  Sty.  Rep.  367,  contra;  and  see 
1  Lev.  237.  Finch.  Rep.  83,  4,  S.  0.  And  for  the  form  of  a  note  of  appearance  for,  and 
beginning  of  a  declaration  against  a  corporation,  see  Append.  Chap.  VI.  §  29,  30. 

[a]  Actions  against  corporations  must  be  instituted  by  summons  in  the  name  which  is 
given  to  them  in  their  several  charters.  But  a  foreign  attachment  lies  against  a  corpora- 
tion incorporated  by  the  laws  of  another  state,  to  attach  its  property  in  this  state ;  but  on 
giving  bail  for  the  payment  of  the  debt,  interest  and  costs,  that  may  be  recovered  by  the 
plaintiff,  the  court  will  permit  it  to  appear,  and  on  motion  will  dissolve  the  attachment.  2 
Troub.  &  Haley,  Pract.  459,  3d  ed. 

It  is  said  in  the  English  books  that  no  precedent  of  an  original  writ,  in  the  common  law 
sense  of  that  term,  has  ever  been  known  in  practice  to  be  issued  against  a  corporation,  and 
it  is  laid  down  as  an  universal  rule,  that  the  process  must  be  by  summons,  and  cannot  be 
by  attachment.  Bro.  Abr.  tit.  "  Corporation,"  pi.  43.  2  Impey's  C.  B.  Pract.  675,  note.  Com. 
Dig.  tit.  "Pleader,"  2  B.  2.  1  Bac.  Abr.  tit.  "Corporation,"  507.  2  Sell.  Pract.  tit.  "Cor- 
poration,"  148.  Ang.  &  Ames  on  Corp.  ^  637,  note,  4th  ed. 

It  has  also  been  held,  and  at  common  law  it  is  not  to  be  disputed,  that  the  service  of  the 
summons  on  the  chief  officer  must  also  be  within  the  jurisdiction  of  the  sovereignty  where 
the  artificial  body  exists.  McQueen  v.  The  Manufacturing  Company,  16  Johns.  Rep.  6.  Nash 
V.  The  Rector,  S^c,  1  Miles,  Rep.  78,  per  Pettit,  P.  J.  Dawson  v.  Campbell,  2  Id.  171.  Combs  v. 
I'he  Bank  of  Keniuchy,  3  Penn.  L.  Jour.  38,  per  Kennedy,  J.  Lehigh  Coimty  v.  Kleckner,  5 
Watts  &  Serg.  187,  per  Rogers,  J.  Brohst  v.  The  Bank  of  Penn.,  5  Id.  380,  per  Sergeant,  J. 
Bank  of  Virginia  v.  Adams,  1  Parsons  Sel.  Eq.  Cas.  534,  per  King,  P.  J.  Bank  of  Augusta 
V.  Earle,  13  Peters,  S.  C.  Rep.  588.  Peckhamy.  Haverhill,  16  Pick.  286.  This  principle  of 
the  common  law  has  been  much  broken  in  upon  by  statutory  enactment  in  this  country. 
Pennsylvania  seems  to  have  departed  widely  h'om  the  common  law.  By  the  act  of  June 
16,  1836,  I  41,  Purd.  Dig.  p.  49,  7  Ed.  p.  168,  8  Ed.,  Dunlp.  470,  it  is  provided  that  any  cor- 
poration shall  answer  upon  a  writ  of  summons  (except  counties  and  townships),  and  that 
service  shall  be  sufiicient,  if  made  on  the  president  or  other  principal  officer,  or  on  the 
cashier,  treasurer,  secretary,  or  chief  clerk ;  and  by  §  42,  lb.  it  is  further  provided,  that  in 
actions  occasioned  by  trespass  done  by  a  corporation,  if  none  of  the  officers  shall  reside  in 


AGAINST  CORPORATIONS.  121 

*The  statutes  of  hue  and  cry,{a)  riot,(b)  and  hlack,{ec)  acts,  and  [  *122  ] 
various  other  statutes,((;?o?)  on  which  the  hundred  were  formerly 

(a)  13  Edw.  I.  St.  2,  c.  1,  2.  28  Edw.  III.  c.  11.  27  Eliz.  c.  13.  8  Geo.  II.  c.  16.  22  Geo* 
II.  c.  24.  For  the  proceedings  in  general  on  these  statutes,  see  2  Wnis.  Saund.  6  Ed.  374,  (1,) 
to  377,  b.  (12,)  423,  (1,)  ;  and  for  the  evidence  In  support  of  actions  thereon,  Peake  Evid.  5 
Ed.  295,  &c.,  2  Phil.  Evid.  6  Ed.  209,  &c. 

(6)  1  Geo.  I.  St.  2,  c.  5,  §  4  &  6.  For  the  proceedings  in  general  on  this  act,  see  2  Wms. 
Sauud.  5  Edw.  377,  6,  to  378,  6  ;  for  the  form  of  a  declaration  thereon,  2  Chit.  PI.  4  Ed.  832  ; 
for  the  evidence  in  support  of  it,  2  Phil.  Evid.  G  Ed.  216  ;  and  for  cases  deleriniiied  thereon, 
Doug.  G99.  5  Durnf.  &  East,  14,  341.  7  Durnf.  &  East,  49G.  1  East,  615,  630.  1  Price, 
343.  Holt  Ni.  Pri.  201,  203,  (n).  1  Barn.  &  Aid.  487.  2  Chit.  PI.  4  Ed.  832,  (a),  and  Moore 
Dig.  tit.  Riot. 

(cc)  9  Geo.  I.  c.  22.  For  the  proceedings  in  general  on  this  act,  see  2  Wms.  Saund.  5  Ed. 
378,  6,  c,  J,  e ;  for  the  forms  of  declarations  thereon,  2  Chit.  PI.  4  Ed.  828,  830  ;  and  for 
cases  determined  on  this  act,  1  Durnf.  &  East,  71  ;  2  Durnf.  &  East,  255.  3  East,  400,  457. 
8  East,  173.  3  Moore,  319.  1  Brod.  &  Bing.  64,  S.  C.  1  Barn.  &  Cres.  304.  2  Dowl.  & 
Ryl.  439,  S.  C.  2  Barn.  &  Cres.  254.  3  Dowl.  &  Ryl.  489,  S.  C.  6  Dowl.  <fc  Ilyl.  10.  4 
Barn.  &  Cres.  167.  6  Dowl.  &  Rvl.  247,  S.  C.  4  Burn.  &  Cres.  913.  2  Chit.  PI.  4  Ed. 
828,  (a).     Pratt  Dig.  tit.  JJlack  Act. 

(dd)  1  Geo.  I.  St.  2,  c.  48.  6  Geo.  I.  c.  16.  8  Geo.  II.  c.  20.  10  Geo.  II.  c.  32,  (except 
§  l«i)-  11  Geo.  II.  c.  22,  ^  5,  to  the  end.  13  Geo.  II.  c.  21.  14  Geo.  II.  c.  6.  22  Geo.  II. 
c.  46,  I  34.  29  Geo.  II.  c.  36,  ^  6,  7,  8,  9.  9  Geo.  III.  c.  29.  36  Geo.  III.  c.  9,  g  3,  to  the 
end.  41  Geo.  III.  c.  24,  {U.  K.)  52  Geo.  III.  c.  130.  56  Geo.  III.  c.  125.  57  Geo.  III.  c.  19, 
^  38,  and  3  Geo.  IV.  c.  33.  And  for  cases  determined  on,  6  Geo.  I.  c.  16,  see  11  East,  349  ; 
on  52  Geo.  III.  c.  130,  |  2.  1  Barn.  &  Aid.  146;  on  57  Geo.  III.  c.  19,  I  33.  2  Stark.  Ni. 
Pri.  504.  3  Dowl.  &  Ryl.  96.  3  Barn.  &  Cres.  147.  4  Dowl.  &  Ryl.  778,  S.  C. ;  and  on  3 
Geo.  IV.  c.  33.     4  Barn.  &  Cres.  913. 

the  county  in  which  such  trespass  was  done,  the  writ  may  be  served  upon  any  officer  or 
agent,  at  any  office  or  place  of  business  within  the  county,  or  it  may  be  served  upon  any  of 
tha  officers  in  anj'  county  or  place  where  they  may  be  found,  which  is  almost  a  transcript 
of  the  act.  This  act  of  1817,  in  these  particulars,  has  been  held  to  extend  to  domestic  cor- 
porations only.  Bushel  v.  The  Com.  Ins.  Co.,  15  S.  &  R.  1 83,  opinion  per  Duncan,  J.,  recognized 
in  Nash  v.  The  Rector,  &c.,  1  Miles,  82,  per  Pettit,  J.  Dawson  v.  Cainpbell,  2  Id.  170.  Combs 
V.  The  Bank  of  Kentucky,  3  Penn.  L.  J.  58.  By  the  theory  of  the  law,  and  by  the  various 
statutory  provisions,  it  is  clear  that  the  corporation  can  act  only  by  its  own  principal  offi- 
cers;  that  its  responsibilities  and  rights  are  thrown  upon  them,  and  that  they  cannot  be 
legally  called  upon  to  answer  through  the  medium  of  their  inferior  officers.  Brobst  v.  The 
Bank  of  Fennsyloania,  5  W.  &  S.  381.  Such  appears  to  have  been  the  law  prior  to  the  act 
of  March  21,  i8l9,  P.  L.  216.  Purd.  Dig.  1187,  7  Ed.  Dunlp.  1149.  Purd.  169,  8  Ed.  By 
this  act  it  is  provided,  that  in  actions  brought  against  any  foreign  corporation  every  judgment 
shall  be  final,  unless  on  appeal,  bail  absolute  shall  be  given,  and  that  process  may  be  served 
"  upon  any  officer,  agent,  or  engineer  of  such  corporation,  either  personally  or  by  copy,  or 
by  leaving  a  certified  copy  at  the  office,  depot,  or  usual  place  of  business  of  said  corpora- 
tion." Under  this  act  somo  cases  have  already  arisen.  Kennard  v.  The  Railroad,  before 
the  District  of  Philadelphia,  March  4,  1850,  is  an  important  one.  In  this  case  the  sheriff 
made  the  following  return:  "Served  by  leaving  a  true  and  attested  copy  of  the  within  writ 
with  an  agent  of  the  defendants,  and  by  leaving  a  certified  copy  in  the  office  attached  to 
the  depot."  In  point  of  fact,  as  appeared  by  the  affidavits,  the  service  was  made  on  an 
agent,  and  at  a  depot  of  a  different  corporation.  The  counsel  for  the  defendant  moved  to 
set  aside  the  return  of  service  of  the  writ  on  this  ground.  But  the  court  were  of  opinion 
that  they  could  not  go  beyond  the  face  of  the  return,  and  the  return  was  held  good.  The 
following  is  the  opinion  of  the  court,  per  Sharswood,  J.  : — 

"  This  was  a  rule  to  show  cause  why  the  service  of  process  should  not  be  set  aside.  It  is 
an  action  against  the  New  Jersey  Railroad  Company,  in  which  the  summons  was  served  by 
leaving  a  certified  copy  at  the  office  attached  to  the  depot.  It  is  important  in  practice  to 
show  for  what  causes  a  court  will  set  aside  the  service  of  a  writ  by  the  sherilT.  It  would 
seem,  according  to  principles  laid  down,  that  the  court  should  not  go  beyond  the  face  of 
the  return,  nor  admit  extraneous  evidence. 

"  In  Klecknerv.  County,  6  \Vh.  66,  where  the  return  was,  that  the  writ  was  served  upon  two 
of  the  commissioners  of  the  county,  and  the  motion  was  to  set  aside  the  service  of  the  writ, 
as  not  having  been  legal,  evidence  was  taken  in  the  court  below  to  show  that  the  persons 
served  were  not  commissioners.  The  service  of  the  summons  was  set  aside;  but  the  Su- 
preme Court  reversed  the  judgment,  holding  that  the  court  below  erred  in  setting  aside  the 
writ.  In  Combs  v.  Bink  of  Kentucky,  3  Pa.  Law  Journal,  58,  the  defendant  was  a  foreign 
corporation,  which  certainly  was  an  extraneous  fact.    In  the  case  before  us,  that  extraneous 

Vol.  I.--9 


122 


OF  THE  TROCEEDINGS 


liable  for  damages  arising  from  malicious  injuries  to  property,[A]  having 
been  repealed  by  the  statute  7  &  8  Geo.  IV.  c.  27,  the  remedies  against 


fact  docs  not  impeach,  but  support  the  writ.  We  think  that  the  sheriflTs  service  of  a  writ 
should  not  be  set  aside,  unless  from  something  on  the  face  of  it.  This  does  not  interfere 
with  the  practice  long  used  in  this  and  other  courts,  to  open  a  judgment  by  default,  and  let 
the  partj'talie  defence  upon  the  merits.  We  must  take  it  as  true,  in  point  of  fact,  that  the 
summons  was  served  upon  an  agent  of  the  company  ;  that  it  was  left  at  a  depot ;  that  it  was 
left  with  a  competent  person,  and  that  the  depot  was  the  depot  of  the  defendants.  The  re- 
turn is,  in  the  language  of  the  act  of  March  21,  1849,  (Pamph.  L.  216,  Brightley's  Sup. 
1849,  124,)  which  enacts,  that  in  the  commencement  of  any  suit  or  action  against  any  such 
foreign  corporation,  process  may  be  served  upon  any  officer,  agent,  or  engineer  of  such  cor- 
poration, either  personally  or  by  copy,  or  by  leaving  a  certified  copy  at  the  office,  depot,  or 
usual  place  of  business  of  said  corporation;  and  such  service  shall  be  good  and  valid  in  law 
to  all  intents  and  purposes.    We  discharge  this  rule." 

In  a  still  later  case  before  the  same  court,  ration  v.  The  Ins.  Co.  September,  1852,  upon  a 
rule  taken  to  set  aside  the  service  of  the  writ,  the  same  ground  was  stated  and  sustained 
by  the  court.  The  return  in  this  case  was:  "  Served  a  true  and  attested  copy  of  the  within 
writ  personally  on  Alfred  Edwards,  an  agent  of  the  within  named  defendants,  and  made 
known  to  him  the  contents  thereof."  Edwards,  it  was  agreed,  was  an  agent  of  the  defen- 
dants in  New  York,  and  was  one  of  the  directors,  but  it  was  agreed  that  he  was  not  an  agent 
in  Pennsylvania,  because  he  had  not  complied  with  the  provisions  of  the  act  of  Jan.  24, 
1849.  Purd.  Dig.  1349.  The  following  is  the  opinion  of  the  court,  September  18,  1852,  per 
ShaTsioood,  P.  J. : — 

"  This  motion  is,  why  the  return  of  service  should  not  be  set  aside.  The  service  itself  is  an 
act  in  pais — it  is  with  the  record  only  that  we  have  to  do.  This  court  has  more  than  once 
decided  that  upon  this  motion  the  parties  are  concluded  by  the  facts  stated  in  the  sherifTs 
return,  although  where  a  judgment  has  been  taken  by  default,  and  an  appeal  is  made  to 
the  discretion  of  the  court  to  open  the  judgment  and  let  the  defendant  into  a  defence,  they 
will  allow  him  in  that  case  to  contradict  the  sheritf's  return  bj'  parol  evidence,  and  show 
that  in  point  of  fact  he  had  no  actual  notice  of  the  suit.  The  difference  between  that  case 
and  the  one  now  before  the  court  is  very  palpable. 

"In  Klechner  v.  The  County  of  Lehigh,  (6  Whart.  66,)  in  which  the  sheriff  returned  that  he 
served  the  writ  on  two  persons  said  to  be  commissioners  of  the  county,  and  the  court  below 
had  heard  evidence  as  to  whether  the  parties  were  commissioners,  the  Supreme  Court  said, 
'  As  the  return  must  be  considered  absolute  and  conclusive  between  the  parties  to  the 
action,  the  court  erred  in  setting  aside  the  service  of  the  writ  by  the  introduction  of  extra- 
neous proofs.'  The  authority  of  this  case  is  conclusive,  as  the  order  of  the  court  upon  this 
motion  would  undoubtedly  be  examined  on  writ  of  error. 

"  It  remains  then  to  consider  the  return  in  this  case  ;  '  Served,'  &c.  It  is  not  denied  that 
the  defendants  are  a  foreign  corporation.  By  the  3d  section  of  the  act  21  March,  1849,  it  is 
provided  that,  'in  the  commencement  of  any  suit  or  action  against  a  foreign  corporation, 
process  may  be  served  upon  any  officer,  agent,  or  engineer,  of  such  corporation,  either  per- 
sonally or  by  copy,  or  by  leaving  a  certified  copy  at  the  office,  depot,  or  usual  place  of  busi- 
ness of  said  corporation  ;  and  such  service  shall  be  good  and  valid  in  law  to  all  intents  and 
purposes.'  It  is  unnecessary  to  inquire  here  what  is  meant  by  the  word  '  agent.'  The 
sheriff,  by  returning  that  he  has  served  on  Edwards,  an  agent,  has  certainly  assumed  that 
he  is  such  an  agent  as  is  contemplated  by  the  act.    Rule  discharged." 

It  would  thus  seem  to  be  well  settled,  that  the  sheriffs  return  is  conclusive  and  not  tra- 
versable :  the  only  remedy  the  defendant  has  is  by  an  action  for  a  false  return.  Salkill  v. 
Le  Sig.  Howard,  2  Rolle,  R.  128.  Palmer  \.  Potter,  Cro.  Eliz.  512.  Madox  v.  You7ig,  Hob.  209. 
Steward  v.  Floyd,  12  Mod.  311.  Hawkins  v.  Mildmay,  Cro.  Eliz.  V30.  Wordall  v.  Smith,  1 
Camp.  332.  Slayion  v.  Chester,  4  Mass.  478.  Bott  v.  Burnell,  9  Id.  96.  Bean  v.  Parker,  17 
Id.  591.  Bank  of  GaUipolis  v.  Donagan,  12  Ohio,  220.  Palmer  v.  Crane,  8  Miss.  619. 
Humphries  v.  Lawson,  2  Eng.  (Ark.  Rep.)  341.  It  is  even  said  by  Sewell  on  Sheriff,  p.  387, 
that  the  court  will  not  try  on  affidavits  whether  a  return  by  the  sheriff  to  a  writ  is  false, 
even  though  a  strong  case  is  made  out  showing  fraud  and  collusion,  but  the  party  must 
resort  to  his  remedy  by  action.  See  Anony.  Lofft.  371.  Shaw  v.  Simpson,  1  Ld.  Raym.  184. 
Ooulot  V.  De  Crony,  2  Dowl.  P.  C.  86.  1  Cr.  &  M.  772.  Barber  v.  Mitchell,  2  Dowl. 
P.  C.  574. 

There  has  been  much  statutory  change  in  this  country  as  to  service  of  process  on  corpo- 
rations, both  foreign  and  domestic.  Perhaps  the  enactments  in  New  York,  Pennsylvania, 
and  Ohio  may  be  considered  as  general  exponents  of  the  legislation.  See  2  Troub.  &  Haley's 
Pract.  458,  by  Wharton,  3d  Ed.  Purd.  Dig.  p.  108,  tit.  Corporations,  Brightly's  Ed.  1853. 
Curwen's  Laws  of  Ohio,  p.  1171,  1174.    Blatchford's  Gen.  Stat.  p.  506,  507.     It  is  for  this 

[a]  See  next  page. 


AGAINST  CORPORATIONS.  122 

the  hundred  for  damages  occasioned  hy  persons  riotously  and  tumultu- 
ously  assembling,  for  which  alone  tlie  hundred  are  now  liable,  were 
amended,  and  consolidated  into  one  act,  by  the  7  &  8  Geo.  IV.  c.  31 ; 
which  commenced  on  the  first  day  of  Juljj^  1827. (e)  By  the  latter 
8tatute,(/)  "  if  any  church  or  chapel,  or  any  chapel  for  the  religious  Avor- 
ship  of  persons  dissenting  from  the  united  church  of  England  and  Ireland, 
duly  registered  or  recorded,  or  any  house,  stable,  coach-house,  outhouse, 
warehouse,  office,  shop,  mill,  malt-house,  hop-oast,  barn  or  granery,  or 
any  building  or  erection  used  in  carrying  on  any  trade  or  manufacture,  or 
branch  thereof,  or  any  machinery,  whether  fixed  or  moveable,  prepared 
for  or  employed  in  any  manufacture,  or  in  any  branch  thereof,  or  any 
steam  engine,  or  other  engine,  for  sinking,  draining,  or  working  any  mine, 
or  any  staith,  building,  or  erection  used  in  conducting  the  business  of  any 
mine,  or  any  bridge,  wagon-way,  or  trunk  for  conveying  minerals  from 
any  mine,  shall  be  feloniously  demolished,  pulled  down,  or  destroyed; 
wholly  or  in  part,  by  any  persons  riotously  and  tumultously  assembled 

{e)  I- 1.  (/)  \  2. 

reason  that  the  Pennsylvania  legislation  has  been  so  fully  considered  in  this  note,  and  the 
points  adjudicated  so  fully  stated. 

"  The  ancient  doctrine  was,  tliat  the  action  of  assumpsit  could  not  be  supported  against  a 
corpoi-ation,  unless  in  the  case  of  promissory  notes,  and  other  contracts  sanctioned  by  par- 
ticular legislative  provisions.  And  as  late  as  1799,  in  a  case  in  the  Supreme  Court  of 
Pennsylvania,  the  question  arose  upon  a  special  verdict  whether  an  action  of  indebitatus 
assumpsit,  upon  an  implied  promise,  could  be  maintained  against  an  incorporated  turnpike 
company,  as  a  corporation  could  only  contract  by  deed  under  the  corporate  seal;  and  the 
court  held  that,  on  the  ground  stated,  the  company  was  not  liable  to  be  sued  in  that  form 
of  action.  But  it  having  since  become  well  settled,  by  the  more  recent  decisions  of  the 
courts  of  the  United  States,  that  corporations  may  act  by  parol,  it  has  resulted,  as  a  matter 
of  course,  that  assumpsit  will  lie  against  a  corporation  ;  and  such  is  now  the  established 
doctrine  in  this  country.  The  Supreme  Court  of  Massachusetts,  a  number  of  years  since, 
decided  that  assumpsit  would  lie  against  a  corporation,  where  there  is  an  express  promise 
by  an  agent  of  the  corporation,  or  a  duty  arising  from  some  act  or  request  of  such  agent 
within  the  authority  of  the  corporation.  And  in  a  very  late  case,  in  the  same  State,  it  was 
held,  that  either  an  action  of  debt  or  of  assumpsit  may  be  maintained  upon  an  implied 
promise,  for  labour  done  and  materials  found,  under  a  special  contract,  which  has  not  been 
performed  on  the  part  of  a  corporation.  In  a  case  in  the  Supreme  Court  of  the  United 
States,  an  attempt  was  made  to  distinguish  between  express  and  implied  promises,  as  to  the 
liability  of  corporations  to  be  sued  in  assumpsit;  but  the  distinction  was  disregarded,  and 
the  court  went  the  whole  length  of  giving  the  same  remedies  against  incorporated  compa- 
nies, in  matter  of  contract,  as  against  individuals.  The  old  cases  are  there  reviewed,  show- 
ing that  the  law  has  been  progressively  altering,  with  respect  to  the  validity  of  act?  done 
by  corporations  not  under  their  seal.  The  court  observe,  upon  the  English  authorities  re- 
ferred to,  that,  as  soon  as  it  was  settled  that  a  regularly  appointed  agent  of  a  corporation 
could  contract  in  its  name  without  a  seal,  it  was  impossible  to  maintain  any  longer  that  a 
corporation  was  not  liable  upon  promises ;  otlierwise  there  would  be  no  remedy  against  the 
coporation ;  and  the  court  concluded  by  s.aying,  that  it  is  a  sound  rule  of  law,  that  when- 
ever a  corporation  is  acting  within  the  scope  of  the  legitimate  purposes  of  the  corporation, 
all  parol  contracts  made  by  its  authorized  agents  are  express  promises  of  the  corporation  ; 
and  all  duties  imposed  upon  them  by  law,  and  all  benefits  conferred  at  their  request,  raise 
implied  promises,  for  the  enforcement  of  which  an  action  will  lie.  In  the  Supreme  Court 
of  New  York,  also,  Mr.  Chief  Justice  Thompson  held  expressly  that  assumpsit  will  lie  against 
a  corporation  on  an  implied  promise.  In  this  case  a  turnpike  comp.any  covenanted  to  pay 
money,  and  a  part  had  been  paid ;  assumpsit,  the  court  held,  would  lie  on  the  implied  pro- 
mise "to  pay  the  balance.  And  in  another  case  in  New  York,  it  was  held,  that  assumpsit 
would  lie  against  the  corporation  on  the  implied  promise  to  pay  the  amount  of  damages 
assessed  by  a  jury,  for  the  land  of  the  plaintiff  taken  by  the  corporation.  The  same  is  the 
general  rule  in  Pennsylvania  and  in  New  Jersey,  and,  we  believe,  throughout  the  country. 
And  in  an  action  of  assumpsit  against  a  corporation,  it  makes  no  difference  whether  the 
agent  who  makes  the  contract  in  behalf  of  the  corporation  was  appointed  under  seal  or  by 
vote."  Angell  &  Ames  on  Corp.  §  37D,  and  cases  there  cited,  4th  Ed. 
[a]  See  Purd.  Dig.  p.  COO,  Ed.  1853. 


122  OF  THE  PROCEEDINGS 

torrcilieVj  in  every  such  case  the  inhabitants  of  the  hundred,  wapentake, 
ward,  or  other  district  in  the  nature  of  a  hundred,  by  whatever  name  it 
shall  be  denominated,  in  which  any  of  the  said  offences  shall  be 
[  *123  ]  committed,  shall  be  liable  to  yield  full  *compensation  to  the  per- 
son or  persons  damnified  by  the  offence ;  not  only  for  the  dam- 
age so  done  to  any  of  the  subjects  thereinbefore  enumerated,  but  also  for 
any  damage  which  may  at  the  same  time  be  done  by  any  such  offenders, 
to  any  fixture,  furniture,  or  goods  whatever,  in  any  such  church,  chapel, 
house,  or  other  buildings  or  erections  aforesaid." 

"Provided  always,  that  no  action  or  summary  proceeding,  as  therein- 
after mentioned,  shall  be  maintainable  by  virtue  of  that  act,  for  the  dam- 
age caused  by  any  of  the  said  offences,  unless  the  person  or  persons 
damnified,  or  such  of  them  as  shall  have  knowledge  of  the  circumstances 
of  the  offence,  or  the  servant  or  servants  who  had  the  care  of  the  property 
damaged,  shall,  within  seven  days  after  the  commission  of  the  offence,  go 
before  some  justice  of  the  peace,  residing  near,  and  having  jurisdiction 
over  the  place  where  the  offence  shall  have  been  committed ;  and  shall 
state  upon  oath,  before  such  justice,  the  names  of  the  offenders,  if  known, 
and  shall  submit  to  the  exam^ination  of  such  justice,  touching  the  circum- 
stances of  the  offence,  and  become  bound  by  recognizance  before  him,  to 
prosecute  the  offenders,  when  apprehended :  Provided  also,  that  no  per- 
son shall  be  enabled  to  bring  any  such  action,  unless  he  shall  commence 
the  same  within  three  calendar  months  after  the  commission  of  the 
offence,  "(a) 

The  service  of  process,  and  mode  of  proceeding  to  judgment,  in  an 
action  against  the  hundred,  on  this  statute,  are  regulated  by  §  4,  which 
enacts,  that  "  no  process  for  appearance,  in  any  action  to  be  brought 
by  virtue  of  that  act,  against  any  hundred  or  other  like  district,  shall 
be  served  on  any  inhabitant  thereof,  except  on  the  high  constable,  or 
some  one  of  the  high  constables,  if  there  be  more  than  one ;  who  shall, 
within  seveii  days  after  such  service,  give  notice  thereof  to  two  justices 
of  the  peace  of  the  county,  riding  or  division,  in  which  such  hundred 
or  district  shall  be  situate,  residing  in  or  acting  for  the  hundred  or 
district ;  and  such  high  constable  is  thereby  empowered  to  cause  to 
be  entered  an  appearance  in  the  said  action,  and  also  to  defend  the 
same,  on  behalf  of  the  inhabitants  of  the  hundred  or  district,  as  he  shall 
be  advised ;  or,  instead  of  defending  the  same,  it  shall  be  lawful  for  him, 
with  the  consent  and  approbation  of  such  justices,  to  suffer  judgment 
to  go  by  default ;  and  the  person  upon  whom,  as  high  constable,  the  pro- 
cess in  the  action  shall  be  served,  shall,  notwithstanding  the  expiration  of 
his  office,  continue  to  act,  for  all  the  purposes  of  that  act,  until  the 
termination  of  all  proceedings  in,  and  consequent  upon  such  action ;  but 
if  such  person  shall  die  before  such  termination,  the  succeeding  high 
constable  shall  act  in  his  stead." 

And  "wherever  the  plaintiff  in  any  such  action  shall  recover  judgment, 

whether  after  verdict  or  by  default,  or  otherwise,  no  writ  of  execution 

shall  be  executed  on  any  inhabitant  of  the  hundred,  or  other  like 

[  *12-i  ]  *district,  nor  on  such  high  constable  ;  but  the  sheriff,  upon  the 

receipt  of  the  writ  of  execution,  shall  (on  payment  of  the  fee  of 

Jive  shillings,  and  no  more,)  make  his  warrant  to  the  treasurer   of  the 

(a)  I  3. 


AGAINST  CORPORATIONS.  124 

county,  riding  or  division,  in  -which  such  hundred  or  other  like  district 
shall  be  situate,  commanding  him  to  pay  to  the  plaintiff,  the  sum  by  the 
said  writ  directed  to  be  levied  ;  and  such  treasurer  is  thereby  required  to 
pay  the  same,  as  also  any  other  sum  ordered  to  be  paid  by  him  by  virtue 
of  that  act,  out  of  any  public  money  which  shall  then  be  in  his  hands,  or 
shall  come  into  his  hands  before  the  next  general  or  quarter  sessions  of 
the  peace  for  the  said  county,  riding  or  division ;  and  if  there  be  not 
sufficient  money  for  that  purpose,  before  such  sessions,  he  shall  give  notice 
thereof  to  the  justices  of  the  peace  at  such  sessions,  who  shall  proceed  in 
the  manner  thereinafter  mentioned. "(a) 

For  the  purpose  of  indemnifying  the  high  constable  and  county  trea- 
surer, it  is  enacted,  that,  "  if  such  high  constable  of  the  hundred,  or  other 
district  sued,  shall  produce  and  prove  before  any  two  justices  of  the  peace 
of  the  county,  riding  or  division,  residing  in  or  acting  for  such  hundred 
or  district,  an  account  of  the  just  and  necessary  expenses,  which  he  shall 
have  incurred  in  consequence  of  any  such  action  as  aforesaid,  such  justices 
shall  make  an  order  for  the  payment  thereof,  upon  the  treasurer  of  the 
county,  riding  or  division,  in  which  such  hundred  or  district  shall  be 
situate ;  and  if,  in  any  such  action,  judgment  shall  be  given  against  the 
plaintiff,  the  high  constable  shall,  in  like  manner,  be  reimbursed  for  the 
just  and  necessary  expenses  by  him  incurred  in  consequence  of  such 
action,  over  and  above  the  taxed  costs  to  be  paid  by  the  plaintiff  in  such 
case  ;  and  if  it  shall  be  proved  to  any  two  such  justices,  that  the  plaintiff  in 
the  action  is  insolvent,  so  that  the  high  constable  can  have  no  relief  as  to 
such  taxed  costs,  such  justices  shall  make  an  order  upon  the  treasurer  of 
the  county,  riding  or  division,  as  aforesaid,  for  the  payment  of  the  amount 
of  such  taxed  costs  :  And  the  justices  of  the  peace,  at  the  next  general 
or  quarter  sessions  of  the  peace  to  be  holden  for  any  such  county,  riding 
or  division,  or  any  adjournment  thereof,  shall  direct  such  sura  or  sums  of 
money  as  shall  have  been  paid,  or  ordered  to  be  paid,  by  the  treasurer,  by  vir- 
tue of  any  such  warrant  or  order  as  thereinbefore  mentioned,  to  be  raised  on 
the  hundred,  or  other  like  district,  against  the  inhabitants  of  which  any  such 
action  shall  have  been  brought,  over  and  above  the  general  rate  to  be  paid 
by  such  hundred  or  district,  in  common  with  the  rest  of  the  county,  riding 
or  division,  under  the  acts  relating  to  county  rates  ;  and  such  sum  or  sums 
shall  be  raised,  in  the  manner  directed  by  those  acts,  and  shall  be  forthwith 
paid  over  to  the  treasurer. "(5) 

It  being  deemed  expedient  to  provide  a  summarj/  mode  of  proceeding, 
where  the  damage  is  of  small  amount ;  the  costs  of  an  action  in 
such  case  *greatly  exceeding,  in  many  instances,  the  amount  of  [  *125  ] 
the  damage  ;  it  is  enacted  by  the  statute  7  &  8  Geo.  IV.  c.  31, (a) 
that  "  it  shall  not  be  lawful  for  any  person  to  commence  any  action, 
against  the  inhabitants  of  any  hundred,  or  other  like  district,  where  the 
damage  alleged  to  have  been  sustained,  by  reason  of  any  of  the  offences 
in  that  act  mentioned,  shall  not  exceed  the  sum  of  tJiirti/  pounds:  but  the 
party  damnified  shall,  within  acven  days  after  the  commission  of  the  offence, 
give  a  notice  in  writing  of  his  claim  for  compensation,  according  to  the 

(a)  ?  G. 

(ft)  !jt  7.  And  for  the  mode  of  rcimbnrscraont,  in  liberties,  &c.,  not  witliin  any  linndred, 
but  contributibg  to  the  county  rate,  nnd  in  counties  of  cities,  aud  liberties,  &c.,  not  contri- 
buting thereto,  see  g  14,  15. 

(a)  ^  8,  9,  10,  and  see  stat.  3  Geo.  IV.  c.  33, 


125  OF  THE  PROCEEDINGS,    ETC. 

form  of  the  schedule  thereunto  annexed,  to  the  high  constable,  or  some 
one  of  the  high  constables,  if  there  be  more  than  one,  of  the  hundred,  or 
other  like  district,  in  -which  the  offence  shall  have  been  committed  :  and 
such  high  constable  shall,  within  seve7i  days  after  the  receipt  of  the  notice, 
exhibit  the  same  to  some  two  justices  of  the  peace  of  the  county,  riding  or 
division,  in  which  such  hundred  or  district  shall  be  situate,  residing  in  or 
acting  for  such  hundred  or  district ;  and  they  shall  thereupon  appoint 
a  special  petty  session  of  all  the  justices  of  the  peace  of  the  county, 
riding  or  division,  acting  for  such  hundred  or  district,  to  be  holden  within 
not  less  than  tiuenty,  nor  more  than  thirty  days  next  after  the  exhibition 
of  such  notice,  for  the  purpose  of  hearing  and  determining  any  claim 
which  may  be  then  and  there  brought  before  them,  on  account  of  any  such 
damage  ;  and  such  high  constable  shall,  within  three  days  after  such 
appointment,  give  notice  in  writing  to  the  claimant,  of  the  day  and  hour, 
and  place  appointed  for  holding  such  petty  session,  and  shall,  within  ten 
days,  give  the  like  notice  to  all  the  justices  acting  for  such  hundred  or 
district ;  and  the  claimant  is  thereby  required  to  cause  a  notice  in  writing, 
in  the  form  in  the  schedule  thereunto  annexed,  to  be  placed  on  the  church 
or  chapel  door,  or  other  conspicuous  part  of  the  parish,  township  or  place, 
in  which  such  damage  shall  have  been  sustained,  on  two  Sundays  preceding 
the  day  of  holding  such  petty  session. 

"  And  it  shall  be  lawful  for  the  justices,  not  being  less  than  tivo,  at  such 
petty  session,  or  any  adjournment  thereof,  to  hear  and  examine  upon  oath 
or  affirmation,  the  claimant,  and  any  of  the  inhabitants  of  the  hundred,  or 
other  like  district,  and  their  several  witnesses,  concerning  any  such  offence, 
and  the  damage  sustained  thereby  ;  and  thereupon  the  said  justices,  or  the 
major  part  of  them,  if  they  shall  find  that  the  claimant  has  sustained  any 
damage,  by  means  of  any  such  offence,  shall  make  an  order  for  payment 
of  the  amount  of  such  damage  to  him,  together  with  his  reasonable  costs 
and  charges,  and  also  an  order  for  payment  of  the  costs  and  charges,  if 
any,  of  the  high  constable,  or  inhabitants ;  and  shall  direct  such  order  or 
orders  to  the  treasurer  of  the  county,  riding  or  division,  in  which  such 
hundred  or  district  shall  be  situate,  who  shall  pay  the  same  to  the  party 
or  parties  therein  named,  and  shall  be  reimbursed  for  the  same,  in  the 
manner  thereinbefore  directed.     And  if  any  high  constable  shall  refuse  or 

neglect  to  exhibit  or  give  such  notice  as  is  required  in  any  of  the 
[  *126  ]  cases  aforesaid,  it  shall  be  lawful  for  the  party  *damnified  to  sue 

him  for  the  amount  of  the  damage  sustained,  such  amount  to  be 
recovered  by  an  action  on  the  case,  together  with  full  costs  of  suit." 

Where  any  of  the  offences,  for  which  compensation  is  granted  by  virtue 
of  that  act,  are  committed  in  the  county  of  a  city  or  town,  or  in  any  such 
liberty,  franchise,  city,  town  or  place,  as  either  does  not  contribute  at  all  to 
the  payment  of  any  county  rate,  or  contributes  thereto,  but  not  as  being 
part  of  any  hundred,  or  other  like  district ;  it  is  enacted  that  "  the  inhab- 
itants thereof  shall  be  liable  to  yield  compensation,  in  the  same  manner, 
and  under  the  same  conditions  and  restrictions  in  all  respects,  as  the 
inhabitants  of  the  hundred ;  and  every  thing  in  that  act  in  any  wise  relat- 
ing to  a  hundred,  or  to  the  inhabitants  thereof,  shall  equally  apply  to 
every  county  of  a  city  or  town,  and  to  every  such  liberty,  franchise,  city, 
town  and  place,  and  to  the  inhabitants  thereof;  and  where  the  justices  of 
the  peace  of  the  county,  riding  or  division,  are  excluded  from  holding 
jurisdiction  in  any  such  liberty,  franchise,  city,  town  or  place,  in  every 


OF  THE  CAPIAS  BY  ORIGINAL.  126 

such  case,  all  the  powers,  authorities  and  duties  by  that  act  to  or  imposed 
on  such  justices,  shall  be  exercised  and  performed  by  the  justices  of  the 
peace  of  the  liberiy,  franchise  city,  town  or  place,  in  which  such  offence 
shall  be  committed  ;  and  where  the  offence  shall  be  committed  in  a  county 
of  a  city  or  town,  all  the  like  powers,  authorities  and  duties,  shall  be  exer- 
cised and  performed  by  the  justices  of  the  peace  of  such  county  of  a  city 
or  town  ;  And  in  every  action  to  be  brouj^ht,  or  summary  claim  to  be  pre- 
ferred, under  that  act,  against  the  inhabitants  of  a  county  of  a  city  or 
town,  or  of  any  such  liberty,  franchise,  city,  town  or  place,  the  process  for 
appearance  in  the  action,  and  the  notice  required  in  the  case  of  the  claim, 
shall  be  served  upon  some  one  peace  officer  of  such  county,  libertj',  fran- 
chise, city,  town  or  place :  And  all  matters  which  by  that  act  the  high 
constable  of  a  hundred  is  authorised  or  required  to  do,  in  either  of  such 
cases,  shall  be  done  by  the  peace  officer  so  served,  who  shall  have  the  same 
powers,  rights  and  remedies,  as  such  high  constable  has,  by  virtue  of  that 
act,  and  shall  be  subject  to  the  same  liabilities  ;  and  shall,  notwithstanding 
the  expiration  of  his  office,  continue  to  act,  for  all  the  purposes  of  that  act, 
until  the  termination  of  all  proceedings  in,  and  consequent  upon  such 
action  or  claim ;  but  if  he  shall  die  before  such  termination,  his  successor 
shall  act  in  his  stead. "(a) 

In  following  up  a  writ  of  execution  to  its  consummation,  under  the  stat- 
ute of  hue  and  cry,  8  Creo.  II.  c.  16,  which  the  subsequent  statute  of  19 
Geo.  II.  c.  34,  §  6,  refers  to,  and  adopts  as  the  mode  of  proceeding  in  case 
of  a  penalty  recovered  by  the  executor  of  a  revenue  officer  killed  in  pur- 
suit of  smugglers,  against  the  inhabitants  of  the  hundred,  (or  of  a  Latlie^ 
in  Kent,)  and  which  latter  statute  is  not  repealed  by  7  &  8  Geo.  IV.  c.  27, 
it  is  sufficient  for  the  sheriff,  to  whom  the  writ  had  been  delivered, 
to  return,  even  after  the  expiration  of  sixty  days  given  him 
by  the  *act  to  return  the  writ,  that  he  had  delivered  it  to  the  [  *127  ] 
justices  of  the  peace  of  the  hundred,  <f(?.  who  are  charged  with  the 
duty  of  directing  the  levy  on  the  inhabitants,  and  that  they  had  done  no- 
thing upon  it ;  and  the  court  of  King's  Bench  will  not  thereupon  attach 
the  sheriff,  for  not  returning  the  writ,  but  the  next  proceeding  is  against 
the  magistrates,  to  oblige  them  to  do  their  duty.(aa) 


♦CHAPTER    VII.  [  *128  ] 

Of  the  Capias  hy  Original,  and  Process  of  Outlawry,  in  the  King's 
Bench,  and  Common  Pleas. 

At  common  law,  the  defendant  was  not  liable  to  be  arrested,  upon  mesne 
process,  for  civil  injuries  unacompanied  with  force. (a)  This  immunity  of 
the  defendant's  person,  in  case  of  peaceable  though  fraudulent  injuries, 
producing  great  contempt  of  the  law  in  indigent  wrongdoers,  a  capias  was 
allowed  to  arrest  the  person,  in  actions  of  account,  though  no  breach  of  the 
peace  were  suggested,  by  the  statutes  oi  Marlbridge,  (o2  Hen.  III.)  c.  23, 

(a)  I  12.  {aa)  13  East,  544.  (a)  3  Co.  12. 


128  OF  THE  CAPIAS  BY  ORIGINAL. 

and  Westm.  2.  (13  Ed.  I.)  c.  11,  in  actions  of  debt  and  detinue,  by  statute 
25  Edw.  III.  Stat.  5,  c.  17,  and  in  all  actions  on  the  case,  by  statute  19 
Hen.  VII.  c.  9.(Z»)  _  _  «... 

In  ordinary  cases  therefore,  if  the  sheriff  return,  on  the  original  writ,  or 
process  of  attachment,  that  the  defendant  has  nothing  by  which  he  can  be 
summoned  or  attached,  a  capias  may  be  sued  out,  in  order  to  arrest  his  per- 
son.(c)  And  where  a  capias  lies,  it  is  now  generally  issued  in  the  first 
instance,  without  previously  suing  out  the  original  ;(cZ)  in  like  manner  as  in 
Chancery,  it  was  usual  to  issue  the  subpoena,  without  first  bringing  in  the 
bill.(c^)  The  capias  is  a  judicial  writ,  issued  by  the  filacer,  and  directed  to 
the  sheriff  or  sheriffs  of  the  same  county  as  the  original ;  commanding  them 
to  take  the  defendant,  if  he  be  found  in  their  bailiwick,  and  safely  keep  him, 
so  that  they  may  have  his  body  in  court,  at  the  return  of  the  writ,  to  answer 
the  plaintiff  in  the  action :  and  it  is  usually  called  a  special  capias  ad  respon- 
dendum.iyf)  If  the  sheriffs  return  to  this  writ,  that  the  defendant  is  not 
found  in  their  bailiwick,  the  plaintiff  may  have  an  alias  or  pluries  capias, 
directed  to  the  same  sheriffs,  commanding  them,  as  before,  or  as  oftentimes 
they  have  been  commanded,  to  take  the  defendant,(^)  &c.:  or  he  may  have 
a  testatum  capias,  directed  to  the  sheriffs  of  a  different  county,  (and  after- 
wards, if  necessary,  an  alias  or  pluries  testatum  capias,)  suggesting  that  the 
defendant  lurks  and  wanders  in  that  county,(7i)  In  any  of  these  writs,  if 
the  defendant  be  within  a  liberty,  it  is  usual  to  insert  a  clause  of  non  07nit- 
tas ;[i)  which  clause  may  be  inserted  in  the  first  process:  So  that,  under 
particular  circumstances,  it  may  be  necessary  for  the  plaintiff  to  have 
[  *129  ]  recourse  to  an  alias  or  pluries  testatum,  7ion  omittas,  *capias  ad 
respondendum,  which  is  the  most  special  writ  of  any  against  the 
defendant's  person  ;  and  commands  the  sheriffs,  as  before,  or  as  oftentimes 
they  have  been  commanded,  not  to  omit  by  reason  of  any  liberty,  but 
to  take  the  defendant,  &c.  it  being  testified  that  he  lurks  and  wanders  in 
their  county.  As  an  original  writ  cannot  be  issued,(aa)  so  there  cannot 
be  a  capias,  into  a  county  palatine ;  but  on  an  an  original  sued  out  in  an- 
other county,  a  testatum  capias  may  be  issued  into  a  county  palatine,(Z'5)  for 
bringing  in  the  defendant.  In  the  courts  of  great  sessions  in  Wales,  by  a 
late  act  of  parliament,(c)  writs  may  issue  from  one  county  to  another. 

In  a  personal  action,  brqjight  by  two  or  more  executors,  there  may  be 
summons  and  severance  ;  that  is,  if  one  or  more  of  them  will  not  join  with 
the  rest  in  prosecuting  the  action,  the  court  will  issue  a  writ  of  summons 
ad  sequendum  simul,{d)  and  upon  their  non-appearance  at  the  return  of  it, 
will  give  judgment  of  severance,(e!)  so  as  to  enable  the  rest  to  proceed 
without  them. 

The  process  upon  the  original  should  be  tested  in  the  name  of  the  chief 
justice,  or  senior  judge  of  the  court,  if  there  be  no  chief  justice.  The  capias 
should  regularly  be  tested  in  term-time  but  not  on  a  Sunday  or  other 
dies  nonjuridicus:  And  where  the  plaintiff  means  to  proceed  to  outlawry, 
the  capias  should  be  tested  on  the  quarto  die  post  of  the  return  of  the 
original,(/)  the  alias  on  the  quarto  die  post  of  the  return  of  the  capias, 

(b)  3  Blac.  Cora.  281. 

(c)  Cora.  Dig.  tit.  Pleader,  2  W.  2  Gilb.  C.  P.  14.  3  Blac.  Com.  279,  &c.    Steph.  PL  25. 

(d)  Ante,  104.  (e)  Trye,  59.  (/")  Append.  Chap.  VII.  g  1. 
iff)  Id.  ^  3.                                      [h)  Id.  I  4.                                     (i)  Id.  I  6. 

{aa)  Ante,  105.  ibb)  Append.  Chap.  VII.  ?  5. 

(c)  Stat.  5  Geo.  IV.  c.  106,  ^  13.  '(d)  Append.  Chap.  VII.  ^  7. 

(e)  Id.  I  8,  and  see  Bac.  Abr.  tit.  Summons  and  Severance,  F.  (/)  Trye,  191. 


OF  THE  CAPIAS  BY  ORIGINAL.  liI9 

and  the  phit'ies  on  the  quarto  die  post  of  the  return  of  the  aUas;{g)  and 
there  must  ho  fifteen  days  at  least  between  the  teste  and  return  of  each 
■\vrit.(/i)  In  the  Common  Pleas  it  is  said,  that  suing  out  the  capias,  alias, 
and pluries  tO(^et\icv,  is  regular,  and  warranted  by  constant  practice. (/)  And 
unless  the  plaintiff  mean  to  proceed  to  outlawry,  the  capias  may  he  tested 
before  the  original,  and  even  before  the  cause  of  action  accrued,  provided  it 
be  actually  taken  out  afterwards ;  and  it  is  not  necessary,  in  other  cases,  that 
the  alias  or  pluries  should  be  tested  on  the  quarto  die  j)ost  of  the  return 
of  the  preceding  writ:(/.")  for  as  the  mesne  ])roccss  never  appears  on  the 
record,  no  error  can  be  assigned  therein  ;(/j  and  the  defendant  cannot  have 
oyer  of  it,  so  as  to  plead  in  abatement. (?//)  These  several  writs  must  be 
made  returnable  like  the  original,  in  the  King's  Bench,  on  a  general  return 
day,(n)  ubicunque,  or  wheresoever  the  king  shall  then  be  in  Unijland,  or, 
in  the  Common  Pleas,  before  the  king's  justices  at  Westminster, 
in  the  same,  *or  the  next  term  ;  for  where  a  Avhole  term  intervenes,  [  *loO  ] 
between  the  teste  and  return  of  the  capias  it  is  null  and  void  :(a) 
and  a  testatum  capias,  by  original,  made  returnable  at  Westminster,  instead 
of  ^^  tvheresoever,  &c."  is  irregular.(i) 

The  process  by  original  may  in  general  be  amended,  as  well  as  the  pro- 
cess by  hill.  Thus,  leave  has  been  given  to  amend  a  special  capias,  in  one 
of  the  defendant's  names,  in  order  that  an  application  might  be  made  to  the 
master  of  the  rolls,  to  procure  a  new  original. (w)  So  a  special  capias,  omit- 
ting the  christian  names  of  two  of  the  defendants,  was  amended  by  inserting 
them,  though  there  was  nothing  to  amend  by,  on  payment  of  costs. (cZcZ)  If 
there  be  less  i\i^\x  fifteen  days  between  the  teste  and  return  of  process  by 
original,  it  may  be  amended  in  the  Common  Pleas  -.{ee)  And  where  a  capias 
is  made  returnable  on  a  day  certain,  instead  of  a  general  return  day,  that 
court  will  allow  it  to  be  amended,  even  after  a  rule  nisi  obtained  to  quash 
the  writ  for  irregularity,  on  payment  of  costs. (/)  So,  Avhere  an  attachment 
of  privilege  was  returnable  after  the  essoin  day,  and  before  the  quarto  die 
post,  instead  of  being  returnable  on  a  day  certain  in  full  term,  an  amend- 
ment was  allowed,  on  payment  of  costs. (^)  But  the  courts  will  not  in 
general  allow  an  amendment  of  process,  to  the  prejudice  of  the  bail. (A) 

When  the  defendant  absconds,  or  keeps  out  of  the  way,  so  that  he  cannot 
be  arrested  or  served  with  process,  the  plaintiff,  on  the  return  of  non  est 
inventus  to  the  p)luries  capias,  may  have  a  writ  of  exigi  facias  and  pro- 
ceed to  outlawry :{i)  Or,  if  there  be  several  defendants  in  a  joint  action,  and 

{g)  Wright  and  another  v. ,  T.  44  Geo.  TIT.  K.  B. 

(A)  Trj'e,  60.  2  Wils.  117.  1  H.  Blac.  222,  but  see  ibe  statutes  16  Car.  I.  c.  6,  ?  7.  24 
Geo.  IT.  c.  48,  g  5.    Ante,  107. 

(/)  Barnes,  322.  (/r)  Wright  and  another  v. ,  T.  44  Geo.  III.  K.  B. 

(/)  3  Wils.  454. 

(w)  Per  Cur.  E.  18  Geo.  III.     2  Cromp.  3  Ed.  37,  8 ;  and  see  1  Bos.  &  Pul.  342,  3. 

(«)  And  a  testatum  capias  in  the  Common  Pleas,  having  been  made  returnable  on  a  day 
certain,  instead  of  a  general  return  day,  was  held  irregular.  2  New  Rep.  C.  P.  133,  and  see 
5  Taunt.  853.     1  Marsh  399,  S.  C. 

{a)  2  Blac.  Pop.  845.     3  Wils.  341,  S.  C.  [h]  1  Chit.  Rep.  323. 

(cc)  7  Durnf.  k  East,  299  ;  and  see  1  Bos.  &  Pul.  481.     2  Bos.  &  Pul.  109. 

((/(/)  2  Smith  R.  392. 

(rf)  3  Wils.  454.     2  Blac.  Rep.  918,  S.  C.     1  H.  Blac.  291.     1  Bos.  &  Pul.  342. 

(/)  5  Taunt.  853.     1  Marsh.  399,  S  C.  and  see  I  Moore  &  P.  28. 

(v)  6  Moore,  113.    3  Brod.  &  Bing.  25,  S.  C. 

(/()  2  New  Rep.  C.  P.  135.  Wood  and  others  v.  Uindlcy,  57  Geo.  III.  K.  B.  1  Chit.  Rep. 
323,  and  see  id.  374.     1  Moore  &  P.  28. 

(j)  3  Blac.  Com.  283.     GUb.  C.  P.  15. 


130  OF  OUTLAWRY. 

one  of  them  abscond  or  keep  out  of  the  way,  the  plaintiff  may  have  a  writ 
of  cxigi  facias  against  that  defendant  ;(Z")  and  must  proceed  to  outlawry 
ao-ainst  him,  before  he  can  go  on  against  the  others. (Z)  In  declaring  against 
A.  upon  a  joint  contract  by  A.  and  B.  it  is  not  enough  to  allege  that  B.  was 
in  dice  manner  outlawed,  without  adding  that  he  was  outlawed  in  that 
suit.{m)  And  where,  in  a  joint  action  against  two,  it  appeared  that  one  of  the 
defendants  had  been  outlawed  upon  different  process  from  that  by  which  the 
other  was  brought  into  court,  and  no  connexion  was  shown  between  the 
several  writs  of  capias  against  each,  as  referable  to  the  same  original ;  as 
where  one  was  outlawed  upon  process  by  original,  tested  the  10th  April, 
returnable  on  the  first  return  of  Easter  term,  and  continued  regularly  down 
to  the  time  of  the  outlawry,  and  the  other  was  arrested  on  a  special  testa- 
tum capias,  issued  on  the  24th  April  in  Hilary  vacation,  to  which  bail 
was  put  in,  and  the  plaintiff  declared  against  him  alone,  *alleg- 
[  *131  ]  ing  the  outlawry  of  the  other  defendant  in  the  same  suit ;  the 
court  of  King's  Bench  set  aside  the  declaration  for  irregular- 
ity.(a)  But  an  allegation  that  a  co-defendant  was  by  due  course  of  law 
outlawed,  at  the  suit  of  the  plaintiff,  in  this  plea  and  suit,  is  sufficient  with- 
out a  prout  patet  per  recordum.{h) 

Outlawry,  in  civil  actions,  is  putting  a  man  out  of  the  protection  of  the 
law,  so  that  he  is  incapable  of  suing  for  the  redress  of  injuries,  and  may  be 
imprisoned :  and  he  forfeits  thereby  all  his  goods  and  chattels,  and  the  pro- 
fits of  his  lands ;  his  personal  chattels,  immediately  upon  the  outlawry, 
and  his  chattels  real,  and  the  profits  of  his  lands,  when  found  by  inquisi- 
tion.(c)  So  penal  were  the  consequences  of  an  outlawry,  that  until  some 
time  after  the  conquest,  no  man  could  have  been  outlawed  except  for 
felony,  the  punishment  whereof  was  death  :  But  in  Bractons  t\me,{d)  and 
somewhat  earlier,  process  of  outlawry  was  ordained  to  lie  in  all  actions 
vi  et  armis :  and  since,  by  a  variety  of  statutes,  (the  same  as  introduced 
the  capias,)  process  of  outlawry  lies  in  accou7it,  debt,  detinue  and  divers 
other  common  or  civil  actions.(c) 

If  the  defendant  be  a  woman,  the  proceeding  is  called  a  waiver;  for  as 
women  were  not  sworn  to  the  law,  by  taking  the  oath  of  allegiance  in  the 
leet,  (as  men  anciently  were,  when  of  the  age  of  ttvelve  years  or  upwards,) 
they  could  not  properly  be  outlaived,  or  put  out  of  the  law,  but  were  said 
to  be  ivaived,  that  is  derelictse,  left  out,  or  not  regarded.(/)  And  for  the 
same  reason,  an  infant  cannot  be  outlawed  under  the  age  of  twelve 
years.((/) 

Outlawry  is  either  upon  mesne  process  before,  or  upon  fiyial  process 
after  judgment. (/i)  Upon  mesne  process,  the  plaintiff  cannot  proceed  to 
outlawry,  unless  the  action  were  commenced  by  original  writ  ;(z)  nor  can 
the  defendant  be  outlawed  after  judgment,  unless  the  action  were  so  com- 
menced :  therefore,  where  the  defendant  was  outlawed  after  judgment,  in 
an  action  commenced  by  hill  of  privilege,  it  was  holden  that  process  of 

{k)  Trye,  155. 

(Z)lStr.  473.     1  Wils.  78.     2  Str.  1269.     1  Blac.  Rep.  20.     4  Bro.  Pari.  Cas,  604,  S.  C. 

(m)  3  East,  144,  but  see  Co.  Lit.  128,  6.  352,  b. 

(a)  15  East,  1.  {b)  7  East,  50. 

(c)  1  Salk.  395.     1  M'Clel.  &  Y.  196. 

\(l)  Bract,  lib.  y.  p.  425. 

(e)  Co.  Lit.  128,  b.  Trye,  72  Gilb.  C.  P.  15,  Fort,  37. 

(/)  Lit.  §  186.     Co.  Lit.  122,  b.  Trye,  66.  (ff)  Co.  Lit.  128,  a. 

{k)  Trye,  77.    1  Moore  &  P.  28.  (i)  1  Sid.  159. 


OF  OUTLAWRY.  131 

outlawry  did  not  lie,  as  tlicre  was  no  capias  in  the  original  action. (A-) 
After  judgment,  the  plaintiff  may  have  an  exigi  facias,  and  proceed  to 
outlawry,  upon  the  return  of  noii  est  inventus  to  a  writ  of  capias  ad  satis- 
faciendum, without  an  alias  or  j)^uries  ;{l)  because  the  defendant,  having 
been  already  in  court  before  judgment,  and  having  conusance  of  the  debt, 
ought  to  pay  it  on  the  first  suing  out  of  the  capias,  and  his  not  perform- 
ing the  judgment  is  a  contumacy,  for  which  he  is  put  out  of  the  king's 
protection.  And  no  writ  of  j}7-oclamation  is  required  upon  an  exigent 
after  judgment,  but  only  upon  mesne  process. (w)  In  the  Common  Pleas, 
the  defendant  may  *be  outlawed  on  a  common  original,  in  tres- 
pass qitare  ckiusum  fregit,  or  on  a  special  original,  adapted  to  [  *132  ] 
the  nature  of  the  action. ((/)  But,  in  the  Exchequer,  the  defen- 
dant cannot  be  outlawed ;  as  the  plaintiff  cannot  proceed  therein,  by  origi- 
nal writ.(i) 

The  Avrit  of  exigi  facias  is  a  judicial  writ,  made  out  by  the  filacer,  as 
clerk  of  the  exigents,{c)  in  the  King's  Bench,  or  by  the  exigenter  in  the 
Common  Pleas,  and  directed  to  the  sheriff  of  the  county  where  the  action 
is  laid;(tZ)  commanding  him  to  cause  the  defendant  to  be  required  from 
county  court  to  county  court,  or  from  husting  to  husting,  if  in  London, (e) 
that  is,  at  five  successive(ff)  county  courts  or  hustings,  until  he  be  out- 
lawed, if  he  do  not  appear,  and  if  he  appear,  to  take  him,(^^)  kc.  This 
writ  should  be  tested  on  the  ciuarto  die  post  of  the  return  of  the  pliiries 
capias  before,  or  of  the  capias  after  judgment :  and  if  there  be  not  five 
county  courts  between  the  teste  and  return  of  it,  there  issues,  upon  the 
sheriff's  return  thereto,(7i7i)  an  exigent  de  novo,  with  a  clause  (whence  it 
is  called  an  allocatur  exigent,)  directing  the  sheriff  to  alloiv  the  several 
county  courts,  at  which  the  defendant  has  been  already  required. (zV)  The 
writ  of  exigent  upon  an  outlawry,  must  be  in  the  hands  of  the  sheriff,  at 
the  time  the  defendant  is  demanded ;  and  therefore,  where  a  sheriff  re- 
turned to  a  writ  of  exigent  and  allocatur  exigent,  that  he  had  demanded 
a  defendant  at  the  hustings,  \x\ion  five  several  days,  on  three  of  which  the 
writs  could  not  by  possibility  have  been  in  his  hands,  the  court  held  that 
the  returns  were  irregular. (/f^)  In  the  Common  Pleas,  no  exigenter  shall 
receive  any  pluries  capias,  in  order  to  make  an  exigent  or  proclamation 
thereon,  before  the  same  is  signed  or  stamped  by  the  clerk  of  the  war- 
rants, or  his  deputy,  to  the  end  it  may  thereby  appear  that  the  warrants 
of  attorney  therein  are  duly  filed  :(^)  and  therefore  the  practice  in  this 
court  is,  to  take  the  p>lurics,  when  returned  by  the  sheriff,  with  a  warrant 
of  attorney,  to  the  clerk  of  the  warrants,  who  will  mark  it,  on  being  paid 
for  filing  the  warrant. (w) 

In  addition  to  the  exigent,  a  writ  oi  proclamation{n)  was  introduced  by 

[k)  1  Leon.  320,  Cro.  Eliz.  216.  [l)  Gilb.  C.  P.  17.     Trye,  77,  124. 

\m)  Cro.  Jac.  67G,  7.  (a)  Barnes,  320,  324. 

{b)  1  Price,  309.     Ante,  38.  (c)  Trye,  in  pref. 

{d)  Filz.  Abr.  tit.  Exigent,  26.  Bro.  Abr.  tit.  Exigent  ij-  Capias,  19,  Dyer,  295,  but  sec  3 
Bac.  Abr.  7G9.     Gilb.  C.  P.  15,  Cromp.  Inirod.  3  Ed.  xcv.  semb  contra. 

(e)  In  London,  the  hustings  are  holden  once  every  fortnight ;  on  which  account  the  action 
is  generally  laid  there,  when  the  plaintiff  intends  to  proceed  to  outlawry.  Trye,  GO.  3 
Lev.  245.  (/)  Plowd.  371. 

[gg]  Trye,  112,  and  see  Append.  Chap.  VH.  ?  9.  {hh)  Id.  ^  10. 

tii)  Trye,  114.     East.  Ent.  189,  355,  and  see  Append.  Chap.  TIL  I  11. 

(kk)  3"  Dowl.  &  Ryl.  55. 

(/)  R.  H.  2  &  3  Jac.  II.  C.  P.  and  see  R.  H.  14  &  15  Car.  II.  rcg.  2,  C.  P.     Ante,  96. 

(m)  Imp.  C.  P.  7  Ed.  566,  7. 

(ra)  Gilb.  C.  P.  19.    Trye,  113.     Thei.  Brev.  88,  and  see  Append.  Chap.  VII.  §  12. 


132  OF  OUTLAWRY. 

the  statute  6  Hen.  VIII.  c.  4,  which,  except  in  London  or  Middlesex^ 
required  it  to  be  directed  to  the  sheriif  of  the  county  of  which  the  defen- 
dant was  called  or  described  in  the  original,  for  there  he  was  supposed  to 
dwell ;  and  if  he  did  not  in  fact  dwell  there,  he  might  have  avoided  the 

outlawry,  by  the  statute  of  additions  :(o)   And  where  the  exigent 
[  *133  ]  was  *directed   into  London  or  Middlesex,  and   the  defendant 

called  therein  "late  oi London  or  3Iiddlesex,"  but  did  not  dwell 
there,  the  writ  of  proclamation  was  required  to  be  directed  to  the  sheriff 
of  the  county  where  the  defendant  was  dwelling  at  the  time  of  the  exigent 
awarded,  or  if  the  king's  writ  did  not  run  there,  to  the  sheriff  of  the  next 
adjoining  county.  But  the  writ  of  proclamation  is  at  present  governed 
by  the  statute  31  Eliz.  c.  3,  §  1,  which  enacts,  that  "  in  every  action  per- 
sonal, wherein  any  writ  of  exigent  shall  be  awarded  out  of  any  court,  a 
writ  of  proclamation  shall  be  awarded  and  made  out  of  the  said  court, 
having  day  of  teste  and  return  as  the  said  writ  of  exigent  shall  have, 
directed  and  delivered  of  record  to  the  sheriff  of  the  county  where  the  de- 
fendant, at  the  time  of  the  exigent  so  awarded,  shall  be  dwelling ;  which 
writ  of  proclamation  shall  contain  the  effect  of  the  same  action  :  And 
that  the  sheriff  of  the  county,  unto  whom  any  such  writ  of  proclamation 
shall  be  delivered,  shall  make  three  proclamations,  one  in  the  open  county 
court,  another  at  the  general  quarter  sessions  of  the  peace,  in  those  parts 
where  the  defendant  at  the  time  of  the  exigent  awarded  shall  be  dwelling, 
and  the  third,  one  month  at  the  least  before  the  quinto  exactus  by  virtue 
of  the  said  writ  of  exigent,  at  or  near  the  most  usual  door  of  the  chuvch 
or  chapel  of  that  town  or  parish  where  the  defendant  shall  be  so  dwell- 
ing ;  and  if  the  defendant  shall  be  dwelling  out  of  any  parish,  then  in  such 
place  as  aforesaid,  of  the  next  adjoining  parish  in  the  same  county,  and 
upon  a  Sunday,  immediately  after  divine  service,  and  sermon  (if  there  be 
one),  and  if  there  be  no  sermon,  then  forthwith  after  divine  service :  And 
that  all  outlawries  had  and  pronounced,  whereupon  no  writs  of  proclama- 
tions shall  be  awarded  and  returned  according  to  the  form  of  this  statute, 
shall  be  utterly  void  and  of  none  effect. "(a)  This  writ  should  have  the 
same  teste  and  return  as  the  exigent ;  and  if  the  defendant  reside  in  a 
different  county  from  that  into  which  the  exigent  issued,  the  writ  is  called 
a  foreign  proclamation. (J)  The  sheriff's  return  to  this  writ  is,  that  he 
has  caused  the  defendant  to  be  proclaimed ;  and  that  either  generally, 
according  to  the  effect  of  the  statute,(c)  or  specially,  setting  forth  the 
time  and  places  when  and  where  the  proclamations  were  made.(c?)  But 
where  the  proclamations  returned  by  the  sheriff  could  not  by  possibility 
have  been  made  between  the  day  of  issuing  the  writ  and  the  day  of  the 
return,  inasmuch  as  there  was  no  county  court  or  general  quarter  sessions  of 
the  peace  held,  at  which  the  defendant  could  have  been  proclaimed,  while 
the  writ  was  running,  the  court  seemed  to  think  that  the  proceedings  were 
irregular.(g)  When  the  exigent  and  writ  of  proclamation  are  returned,  they 
should  be  taken  to  the  filacer,  in  the  King's  Bench ;  but,  in  the  Common 
Pleas,  the  exigent  is  taken  to  the  clerk  of  the  outlawries,  and  the  writ  of 
proclamation  filed  with  the  exigenter. 

(o)  Dyer,  214. 

(a)  This  act  of  parliament  is  enforced  by  the  court  rules  of  M.   1654,  §  G,  K.  B.  and  M. 
1654,  §  9,  C.  P. 

{b)  Append.  Chap.  YII.  I  13.  (c)  Id.  I  14.  {d)  Id.  \  15. 

(e)  3  Dowl.  &  Ryl.  55. 


OF  OUTLAWRY.  133 

*Upon  the  defendant's  being  put  in  exiijcnt,  he  is  cither  taken 
by  the  sheriff,  appears  voluntarily,  or  makes  default.  If  he  be  [  *134  ] 
taken,  he  either  remains  in  custody  of  the  sheriff,  or  gives  bail, 
&c.  as  upon  a  common  arrest.  Formerly,  if  the  defendant  had  appeared 
voluntarily,  at  any  time  before  the  return  of  the  exif/cnt,[a)  or  quarto  die 
post  of  the  return  in  the  Common  Pleas,(a)  he  might  have  obtained  a  writ 
of  super sedea8,{h)  from  the  filacer,  as  clerk  of  the  8upcr8edeases[c)  in  the 
King's  Bench,  or  from  the  exigcnter  in  the  Common  Pleas,  on  entering  a 
common  appearance  of  the  terra  in  which  the  exigent  issued. ((/)  In  tlie 
Common  I'leas,  the  supersedeas  is  itself  an  appearance,  if  delivered  to  the 
sheriff"  before  the  quarto  die  j^ost  of  the  return  of  the  exigent  :{ee)  And,  in 
that  court,  after  the  return  of  the  exigent,  but  whilst  it  remained  in  the 
8heriff"s  hands,  and  before  the  defendant  was  returned  outlawed,  the  court 
made  a  rule,  that  a  supersedeas  to  the  exigent  should  be  allowed,  on  pay- 
ment of  costs.(/)  This  practice  of  granting  a  supersedeas  still  continues,  in 
cases  which  do  not  require  special  bail.  But  upon  a  question  agitated  some 
years  ago,  in  the  court  of  King's  Bench,  whether,  in  a  case  originally  re- 
quiring special  bail,  if  the  defendant  stand  out  to  an  exigent,{g)  he  can 
come  in  and  appear  to  the  exigent,  without  putting  in  special  bail,  it  was 
ruled  by  the  court,  that  there  ought  to  be  special  bail.  "  It  would  be  very 
unreasonable,  they  said,  that  the  defendant  should  gain  an  advantage,  by 
standing  out  till  process  of  outlawry  :  He  certainly  ought  not  to  be  in  a  bet- 
ter condition  then,  than  if  he  had  appeared  at  first:"  And  accordingly  the 
direction  given  was,  that  the  filacer  should  not  issue  a  supersedeas,  till  the 
defendant  had  put  in  special  bail.(/i)  So,  in  the  Common  Pleas,  it  is  a  rule, 
that  "where  the  defendant  shall  abscond  to  avoid  being  arrested,  and  can- 
not be  arrested,  although  the  plaintiff  shall  bona  fide  have  used  his  best  en- 
deavors for  that  purpose,  a  supersedeas  shall  not  be  issued,  to  stay  the 
proceedings  to  an  outlawry,  unless  the  defendant  shall  have  first  put  in  spe- 
cial bail ;  and  that  the  writ  of  supersedeas  thereupon  issued,  in  case  special 
bail  shall  not  afterwards  be  perfected  according  to  the  course  of  the  court, 
where  special  bail  is  required  upon  arrests,  shall  be  void,  and  of  no  effect  to 
stay  the  plaintiff's  proceeding  to  the  outlawry :  but  the  same  may  be  gone 
on  with,  from  the  time  of  such  default,  as  if  no  appearance  had  been  entered 
or  special  bail  filed,  and  shall  not  be  deemed  irregular  or  erroneous,  by 
means  of  such  interruption  of  the  proceedings,  by  putting  in,  and  not  after- 
ter wards  perfecting  special  bail  as  aforesaid,  "(t) 

*If  the  defendant  be  neither  arrested  nor  appear,  but  make  [  *135  ] 
default,  at  five  successive  county  courts  or  hustings,  he  is  out- 
lawed if  a  man,  or  if  a  woman  she  is  ivaived,  by  the  judgment  of  the 
coroners,  or  of  the  recorder  in  London  :{a)  and  the  judgment  of  outlawry 
being  returned  by  the  sherifl'upon  the  exigent,  the  filacer,  who  acts  as  clerk 

(a)  Cas.  P.  R.  C.  P.  28. 

(b)  Append.  Chap.  VII.  §10,  and  for  the  sheriffs  return  thereto,  see  id.  g  17. 

(c)  Trye,  in  prtf.  (rf)  Id.  67,  8  Gilb.  C.  P.  lU.     Fort.  39.     Barnes,  326. 
(ce)  Barnes,  319. 

(/)  Id.  323,  and  see  R.  M.  17  Car.  II.     R.  E.  24  Car.  II.  ref/.  1.     R.  T.  2.  Jac.  II.  C.  P. 

{g)  The  question,  as  stated  by  Sir  Jamet  Burrow,  was  whether  the  <iefendiint,  standing 
out  to  an  outlawry,  can  come  in  and  appear  to  the  oM^/ditri/,  without  pultint;  in  sfiecial  bail: 
but  upon  inquiry,  it  appears  to  have  been,  as  stated  above,  upon  the  exigent,  before  outlawry. 

{h)  3  Bur.  1020. 

{i)  R.  K.  21  Geo.  III.  C.  P.  And  see  further,  as  to  bail  on  process  of  outlawry,  Petersd. 
Part  I.  Chap.  XVIII. 

(a)  Co.  Lit.  288,  b.  Gilb.  C.  P.  15,  10,  and  see  Append.  Chap.  VII.  g  10. 


135 


OP  OUTLAWRY. 


of  the  outlaiories  in  the  King's  Bench,(6)  will  make  out  a  writ  of  capias 
utlaqatum,  which  is  cither  general  or  8pecial,{c)  and  may  be  issued  into 
any  county,  without  a  testatum  ;{d)  nor  is  there  any  occasion,  upon  an  out- 
lawry rt/ie/"  judgment,  to  revive  the  judgment  by  scire  facias,  after  a  year 
and  a  day.(e)  But,  in  the  Common  Pleas,  a  writ  of  cajnas  utlagatum  can- 
not be  sued  out  and  tested  after  the  death  of  the  defendant. (/)  And 
where  the  judgment  of  outlawry  was  entered  after  the  plaintiff's  death,  the 
court  held,  that  a  capias  utlagatum  could  not  regularly  be  issued,  without 
reviving  the  judgment.((/) 

By  the  general  writ  of  capias  utlagatum.  the  sheriff  is  commanded, 
"that  he  do  not  omit,  by  reason  of  any  liberty  of  his  county,  but  that  he 
take  the  defendant,  if  he  be  found  in  his  bailiwick,  and  him  safely  keep,  so 
that  he  may  have  his  body  in  court,  on  a  general  return  day,  wheresoever, 
&c.  in  the  King's  Bench,  or,  in  the  Common  Pleas,  before  the  king's  jus- 
tices at  Westminster,  to  do  and  receive  what  the  court  shall  consider  of 
him."{h)  The  defendant  being  taken  by  the  sheriff  on  this  writ,  either 
gives  bail  to  appear  and  reverse  the  outlawry ;  or  remains  in  custody,  until 
he  actually  reverse  it,  or  obtain  a  charter  of  pardon,  or  be  relieved  under 
an  insolvent  act.(i) 

At  common  law,  the  defendant  could  not  have  been  bailed,  when  taken 
by  the  sheriff  on  a  capias  utlagatum  ;{k)  and  this  case  is  particularly  ex- 
cepted out  of  the  statutes  23  Hen.  VI.  c.  9,  and  13  Car.  II.  stat.  2,  c.  2,  § 
4,  by  the  latter  of  which  statutes  it  is  expressly  declared,  that  "  no  sheriff, 
&c.  shall  discharge  any  person  or  persons,  taken  upon  any  writ  of  capias 
utlagatum,  out  of  custody,  without  a  lawful  supersedeas  first  had  and  re- 
ceived for  the  same."(?)  But  now,  by  statute  4  &  5  W.  &  M.  c.  18,  §  4,  5, 
"if  any  person,  outlawed  in  the  court  of  King's  Bench,  other  than  for  trea- 
son and  felony,  shall  be  taken  and  arrested,  upon  any  capias  utlagatum 
out  of  the  said  court,  the  sheriff  making  the  arrest  may,  in  all  cases  where 
special  hail  is  not  required  hy  the  said  court,  take  an  attorney's  engage- 
ment under  his  hand,  to  appear  for  the  defendant,  and  reverse  the  outlawry  ; 
and  may  thereupon  discharge  the  defendant  from  such  arrest :  and,  in  those 
cases  where  special  hail  is  required  hy  the  said  court,  the  said 
[  *136  ]  sheriff  shall  and  may  take  security  of  the  *defendant  by  bond, 
with  one  or  more  sufficient  surety  or  sureties,  in  the  penalty  of 
double  the  sum  for  which  special  bail  is  required,  and  no  more,  for  his  appear- 
ance by  attorney  in  court,  at  the  return  of  the  writ,  and  to  do  and  perform 
such  things  as  shall  be  required  by  the  same  court ;  and  after  such  bond 
taken,  may  discharge  the  defendant,  from  the  said  arrest :  Or,  in  case  the  de- 
fendant shall  not  be  able  to  give  security  as  aforesaid,  hefore  the  return  of 
the  writ,  he  shall  and  may  be  discharged,  whenever  he  shall  find  sufficient 
security  to  the  sheriff,  for  his  appearance  by  attorney  in  the  said  court,  at 
some  return  in  the  ensuing  term,  to  reverse  the  outlawry,  and  to  do  and 
perform  such  other  thing  and  things  as  shall  be  required  by  the  said 
court."(a)     This  statute  has  been  construed  not  to  extend  to  criminal 

(6)  Trye,  in  pref.  {c)  Id.  65,  6.     6  Gilb.  C.  P.  16. 

{d)  1  Vent  33.    Gilb.  C.  P.  17.  (e)  Cro.  Eliz.  706.    5  Mod.  203.    Gilb.  C.  P.  71. 

(/)  Gas.  Pr.  C.  P.  36.  [g)  Barnes,  325,  and  see  id.  323. 

(A)  Trye,  115,  and  see  Append.  Chap.  VII.  §  18,  19.  (?)  4  Bur.  2119,  2127. 

\k)  Trye,  73.     3  Bur.  1484.     4  Bur.  2540. 

\l)  And  see  R.  H.  2  Car.  I.  §  5.     M.  1654,  §  9.    H.  15  &  16  Car.  II.     M.  17  Car.  II.     T.  2 
Jac.  II.  C.  P. 

{a)  See  R.  H.  2  Car.  I.  ^  3,  C.  P. 


OF  OUTLAWRY.  136 

cases ;  at  least  to  misdemeanors,  after  conviction  :{b)  And  even  in  civil 
cases,  the  defendant  cannot  be  bailed,  -where  lie  was  not  bailable  upon  the 
process  to  outlawry  ;(6')  for  it  was  the  design  of  the  statute  to  put  him  in 
the  same  condition  as  if  he  had  not  been  outlawed  :  and  therefore  he  is 
not  bailable,  when  taken  upon  an  outlawry  after  judgment.  Neither,  upon 
this  statute,  will  the  court  on  motion  restore  goods  taken  upon  a  special 
capias  utlai^fatum  ;{d)  but  they  will  of  course  be  restored,  upon  the  rever- 
sal of  the  outlawry. (f')  A  bankrupt  having  been  arrested  after  outlawry, 
and  a  levy  made  on  his  goods  by  the  sheriflf,  under  a  special  writ  of  capias 
utlayatum^  the  court  of  King's  Bench  would  not  relieve  him  on  motion, 
in  a  summary  way,  from  such  arrest  and  levy,  excei)t  upon  the  terms  of 
appearing  to  the  action,  and  putting  in  and  perfecting  special  bail ; 
although  the  plaintiff  had  also  proved  her  debt  under  the  commission,  and 
received  a  dividend,  after  which  she  commencod  her  action  for  the  bal- 
ance.!/) And  it  seems,  that  bankruptcy  and  certificate  are  no  grounds 
for  discharging  a  pirisoner  in  custody  on  a  capiias  utla()atum.{g) 

When  there  is  no  affidavit  of  a  bailable  cause  of  action,  the  sheriff  is 
authorized,  by  the  statute,  to  discharge  the  defendant,  on  an  attorney's 
undertaking  to  appear  and  reverse  the  outlawry :  But  where  an  affidavit 
has  been  made,  he  ought  not  to  be  discharged,  without  giving  the  security 
required  by  the  statute  ;  which  is  not  a  common  bail  bond,  but  a  bond, 
with  one  or  more  sufficient  surety  or  sureties,  for  appearance  by  attorney 
at  the  return  of  the  writ,  and  to  do  and  perform  such  things  as  shall  be 
required  by  the  court  ;{h)  that  is,  to  put  in  and  perfect  bail  to  a  new  action, 
plead  within  a  limited  time,  put  the  plaintiff  in  the  same  condition,  and 
such  like  matters. (?')  And  it  is  not  necessary  that  the  affidavit  should  be 
made  before  the  outlawry,(A:)  nor  the  sum  sworn  to  indorsed  on  the  capias 
utlagatum  ;{l)  but  it  is  sufficient,  if  there  be  an  affidavit  before 
the  *defendant  is  discharged:  the  court  having  determined,  that  [  *137  ] 
process  of  outlawry  is  not  within  the  statutes  for  preventing  frivo- 
lous and  vexatious  arrests.(rtrt) 

By  the  special  writ  of  capias  utlagatum,  the  sheriff  is  commanded,  not 
only  to  take  the  defendant,  as  by  the  general  writ,  but  also  "  to  inquire, 
by  the  oath  of  honest  and  lawful  men  of  his  county,  what  goods  and  chat- 
tels, lands  and  tenements,  he  hath,  or  had  on  the  day  of  his  outlawry,  or 
at  any  time  afterwards ;  and  by  their  oath  to  extend  and  appraise  the 
same,  according  to  their  true  value ;  and  to  take  them  into  the  king's 
hands,  and  safely  keep  them,  so  that  he  may  answer  to  the  king  for  the 
true  value  and  issues  of  the  same;  making  known  what  he  shall  do  there- 
upon to  the  court,  on  the  return-day.  "(W)  Upon  this  writ,  the  sheriff  is 
to  impanel  a  jury,  who  are  to  make  inquiry  of  the  goods  and  chattels  of 
the  defendant,  including  his  debts{c)  or  choses  in  action,  and  also  of  his 
leasehold  and  freehold  lands  and  tenements ;  to  appraise  the  goods,  and 
to  extend  or  value  the  lands,  &c.     But  they  have  nothing  to  do  with  his 

{b)  4  Dur.  2539. 

(c)  Id.  25-tO.  (<f)  2  "Wils.  127.     Per  Cut.  M.  20  Geo.  III.  K.  B. 

(f)  Carth.  459.     1  Ld.  Raym.  349,  S.  C.  (/")  H  East,  53G. 

(g)  3  Taunt.  141.  (A)  3  Bur.  1483.  («)  4  Bur.  2540. 
{k)  2  Str.  ins,  9.  1  Wilg.  3  S.  C.  Fort,  39,  S  P.  (/)  3  Bur.  1482. 
{aa)  Fownes  v.  Allen,  M.  10,  Geo.  II.  cited  in  3  Bur.  1483.     Barnes,  322. 

\bb)  Trye,  116,  16.  Off.  Brcv.  35.  Thca.  JJrev.  69,  &c.  Lil.  Eat.  552,  and  see  Append. 
Chap.  Vll.  g  20. 

(c)  4  Co.  95.  Lane,  23.  Lutw.  329,  1513.  Gilb.  C.  P.  200,  but  see  2  Rol.  Abr.  80C,  1. 
52.     Sav.  40. 


137 


OF  OUTLAWRY. 


copyholds, {tl)  or  trust  propcrfi/.{e)  Witnesses  may  be  subpoenaed  to  attend 
the  execution  of  the  inciuirj ;  and  when  made,  the  sheriff  is  to  take  pos- 
session of  the  goods  and  chattels  of  the  defendant,  and  of  the  leasehold 
tenements  in  his  own  occupation :(/)  But  he  must  not  oust,  or  disturb  the 
possession  of  his  tenants ;(//)  and  can  only  take  the  issues  or  profits  of  his 
freehold  tenements. [h)  The  inquisition  should  set  forth,  with  corivenient 
certaint)/,  the  appraised  value  of  the  goods  ;  the  particulars  of  the  debts  ; 
of  what  lands,  &c.,  the  defendant  is  seised  or  possessed,  the  different  par- 
cels,  in  whose  tenure,  and  of  what  annual  value,  beyond  reprizes. (2)  But 
the  inquisition,  being  merely  an  ofEce  of  instruction  or  information,  does 
not  require  so  much  certainty  as  an  office  of  intituling .{k)  And  if  the 
lands,  &c.,  be  undervalued,  there  may  be  a  melius  inquirendum. (I) 

When  the  special  writ  of  capias  utlagatum  is  returned,  it  should  be 
delivered,  with  the  inquisition  annexed,  to  the  filacer,  as  clerk  of  the  exi- 
gents and  outlaivries[m)  in  the  King's  Bench,  or  to  the  clerk  of  the  out- 
lawries in  the  Common  Pleas,  and  afterwards  filed  in  the  office  of  the  cus- 
tos  brevium ;{n)  whence  a  transcript  is  sent  into  the  Exchequer. (0)  Out  of 
this  latter  court  there  issues  a  veiiditioni  exponas,  to  sell  the  goods,[p)  a 
scire  facias,  to  recover  the  debts,(^)  and  a  levari  facias,  to  levy 
[  *138  ]  the  issues  *and  profits ;  under  which  latter  writ,  the  sheriff  may 
take  not  only  the  rent  and  moveables  of  the  party  outlawed,  but 
also  the  cattle  of  a  stranger,  levant  and  couchant  on  the  lands  extended.(a) 
In  aid  of  these  writs,  a  bill  may  be  exhibited  in  the  Exchequer,  against 
the  outlaw,  to  compel  a  discovery  of  his  real  and  personal  estate,  &c., 
either  by  the  plaintiff,  to  enable  him  to  take  out  execution,  or  by  the  attor- 
ney general,  on  behalf  of  the  crown. (5)  And  it  is  said  to  be  the  course 
of  that  court,  upon  an  outlawry,  to  prefer  an  information,  in  the  nature 
of  a  trover  and  conversion,  against  him  that  hath  the  goods  of  the  party 
outlawed,  (cc) 

The  money  raised  by  the  sherifi",  under  these  writs,  belongs  to  the  crown ; 
but  the  plaintiff  may  have  it  paid  to  him,  in  satisfaction  of  his  debt  and 
costs,  by  applying  to  the  court  of  Exchequer,  or  lords  of  the  treasury :  and 
he  may  also,  upon  petition{dd)  to  the  lords  of  the  treasury,  obtain  a  lease 
or  grant,  under  the  Exchequer  seal,  of  the  king's  right  to  \q\j  the  profits.(ee) 
If  the  money  raised  by  the  sheriff  do  not  exceed  the  sum  of  fifty  pounds, 
the  court  of  Exchequer,  on  motion,  will  order  it  to  be  paid  to  the  plaintiff. 
But  if  it  exceed  that  sum,  the  plaintiff  must  petition  for  it  to  the  lords  of 
the  treasury  ;  stating  the  amount  of  his  debt,  a  short  abstract  of  the  pro- 
ceedings, with  the  expenses  he  has  been  put  to,  and  praying,  in  respect 
thereof,  that  the  attorney -general  may  be  authorized  to  consent,  on  behalf 

{d)  Parker,  190. 

(e)  Cro.  Jac.  513.  Sty.  Rep.  41.  Bunb.  92,  but  see  the  statute  of  frauds,  29  Car.  II.  c. 
3,  §  10,  though  it  rather  seems  that  trust  property  is  not  extendible  by  this  statute,  on  a 
capias  utlagatum..     Lee's  Prac.  Die.  2  Ed.  315,  n.  and  see  Hardr.  466,  7,  488. 

(/)  9  Hen.  VI.  20,  21.  {g)  Id.  21  Hen.  VII.  7. 

(/;)  Id.  Plowd.  441.    Hardr.  106, 176.    Bunb.  103,  105.       (*)  Append.  Chap.  VII.  |  21,  22. 

\k)  2  Salk.  469.     Bunb.  103.  [1)  Hardr.  106,  but  see  2  Salt  469. 

(to)  Trye,  in  pref. 

in)  Id.  ibid.  &  p.  88,  9.     3  Durnf.  &  East,  578,  9.  (o)  Gilb.  0.  P.  16. 

{p)  Append.  Chap.  VII.  ^  23,  and  for  the  return  thereto,  see  id.  g  24. 

{q)  Gilb.  C.  P.  16,  1  Lutw.  330. 

[a]  I  Ld.  Raym.  305,  and  the  cases  there  cited,  in  the  last  edition. 

(6)  Hardr.  22.  [cc)  1  Mod.  90.  {dd)  Append.  Chap.  VII.  ^  25. 

(eej  9  Hen.  VI.  20.     2  Rol.  Abr.  818.     Hardr.  106,  422.     T.  Raym.  17.     Gilb.  C.  P.  17. 


OF  OUTLAWRY.  138 

of  the  crown,  that  tho  money  remaining  in  the  sheriff's  hands  may  he  paid 
over  to  the  petitioner.(/)  This  petition  is  referred,  by  the  h^rds  of  the 
treasury,  to  their  solicitor  ;(r/)  who  shouhl  be  furnished  with  a  certificate  of 
the  proceedings  from  the  clerk  in  court,(/<)  and  an  ajjldavit,[l)  sworn  before 
a  baron,  of  the  amount  of  the  debt  and  costs ;  whereupon  he  will  make 
his  rcpo)-t,{Jc)  which  should  be  filed  with  the  clerk  of  the  treasury.  A 
warrant  is  then  issued,  under  the  king's  sign  manual,  for  the  attorney- 
general  to  give  his  consent  to  an  order,  pursuant  to  the  prayer  of  the 
petition  :(/)  upon  which  a  motion  is  made  in  the  court  of  Exchequer ;  and, 
the  attorney-general  consenting,  an  order  is  framed  accordingly. (;;<)  This 
order  must  be  engrossed,  and  put  under  seal,  Avith  a  suhp'cna[n)  annexed 
to  perform  it ;  and  the  sheriff  being  served  therewith,  must  pay  over  the 
money,  or  will  be  liable  to  an  attachraent.(o) 

Having  thus  shown  the  consequences  of  an  outlawry,  I  shall  proceed  to 
consider  the  mode  of  reversing  it,  where  the  party  outlawed  comes  in gratisy 
or  in  consequence  of  an  arrest  upon  the  capias  utlagatum.  There  are 
two  ways  of  reversing  an  outlawry  ;  1st,  by  tvrit  of  error,{p) 
returnable  *coram  nobis,{a)  or  vobis  •,{b)  2dly,  by  motion^  founded  [  *139  ] 
on  a  plea,  averment,(c)  or  suggestion,  of  some  matter  apparent, 
as  in  respect  of  a  supersedeas,  omission  of  process,  variance,  or  other 
matter  apparent  on  the  record ;  and  y^t,  in  these  cases,  some  have  holdcn, 
that  in  another  term,  the  defendant  is  driven  to  his  writ  of  error.  But 
for  any  matter  of  fact,  as  death,  imprisonment,  service  of  the  king,  &;c., 
he  is  driven  to  his  writ  of  error,  unless  it  be  in  the  case  of  felony,  and 
there  mfavorem  vitve  he  may  plead  it.  And  there  is  an  old  rule  of  court, 
in  the  Common  Pleas,  that  a  writ  of  error  shall  not  be  allowed,  nor  any 
record  removed,  or  writ  of  de  non  molcstando  or  supersedeas  granted, 
before  some  manifest  error  be  shown  to  the  court,  in  term  time,  or  in  vaca- 
tion to  some  of  the  justices,  and  by  them  allowed. (tZ)  It  seems,  however, 
to  be  discretionary  in  the  courts  to  relieve  by  motion,  or  put  the  parties 
to  a  writ  of  error ;  and  of  late  years  they  have  gone  further  than  hereto- 
fore upon  motion,  the  more  effectually  to  expedite  justice,  save  expense, 
and  preserve  the  credit  and  character  of  the  defendant. 

It  was  not  formerly  usual  for  the  courts  to  reverse  an  outlawry  upon 
motion,  for  error  in  fact ;  the  defendant  being  put  to  his  writ  of  error  for 
reversing  it.(^)  But  now,  where  it  appears  by  affidavit,  that  he  was 
imprisoned,(^(/)  or  beyond  sea,(/Ji)  at  the  time  of  the  exeV/t'wi!  awarded,  the 
courts,  for  avoiding  circuity,  will  reverse  the  outlawry  upon  motion.  So, 
it  was  reversed  by  the  court  of  Common  Pleas,  although  it  was  sworn,  that 
the  defendant  went  beyond  sea,  in  order  to  avoid  the  process. (u')  And 
where,  on  error  to  reverse  an  outlawry,  the  error  assigned  was,  that  before 

(  f)  Append.  Chap.  VII.  g  26,  7.  (.y)  Id.  ^  28.  (A)  M.  ?  29.  (t)  Id.  g  30. 

(k)  Id.  I  31.  {I)  Id.  §  32.  (in)  Id.  \  33.  (n)  Id.  \  34. 

(o)  Imp.  K.  B.  10  Ed.  537.    2  Cromp.  3  Y:<1.  42. 

Ip)  Co.  Lit.  259,  b.  Trye,  73.  Fort.  38.  2  Keu.  304.  Append.  Chap.  LXIV.  \  4,  5,  6.  And 
for  the  forms  of  assignments  of  error,  and  other  proceedings,  on  a  writ  of  error,  coram  nobis, 
see  id.  g  GO,  &c.,  122. 

(a)  Trye,  74.    Append.  Chap.  LXIV.  §  4.  (b)  Append.  Chap.  XLIV.  §  5,  6. 

(c)  Trye,  69,  118.     T/trs.  Brcv.  60,  and  see  Append.  Chap.  VII.  ^  35. 

{d)  R.  T.  24  Eliz.  §  4,  C.  P.  (c)  Barnes,  324,  5. 

(/)  Carth.459.  1  Ld.  Ilaym.  340,  S.  C.  2Str.ll78.  1  Wils.  3,  S.  C.  Barnes,  319,  20  ;  325. 
12  East,  622.  (yy)  3  Taunt.  141. 

{hh)  4  Taunt.  691.    1  M.iule  k  Scl.  409,  and  sec  Bariius,  325. 

(i()  4  Taunt.  691,  but  see  2  Car.  &  P.  125,  129,  (a),  132. 

Vol.  I.— 10 


139 


OF  OUTLAWRY. 


and  at  the  time  of  awarding  and  issuing  the  exigi  facias,  the  plaintiff  in 
error  was  in  parts  beyond  the  seas,  and  the  defendant  pleaded,  that  before 
the  awardin""  and  issuing  of  the  exigi  facias,  the  plaintiff  in  error,  of  his 
fraud  and  covin,  and  in  order  to  defeat  the  defendant  in  error  of  the  means 
of  recovering  his  just  debt,  and  for  the  purpose  of  avoiding  the  outlawry 
when  the  same  should  be  pronounced,  voluntarily  left  the  realm  of  Eng- 
land, and  went  into  parts  beyond  the  seas,  and,  of  such  his  fraud  and 
covin,  did  voluntarily  stay  and  remain  in  parts  beyond  the  seas,  until  after 
the  awarding  of  the  exigi  facias,  and  pronouncing  of  the  outlawry,  where- 
upon issue  was  joined,  and  found  for  the  defendant  in  error ;  the  court  of 
King's  Bench  held,  that  this  plea  was  not  an  answer  to  the  assignment  of 
error,  and  that  judgment  of  reversal  of  the  outlawry  should  be  entered  for 
the  plaintiff  in  error,  7ion  obstante  veredicto.{k)     But,  in   a  late  case,(Z) 

the  court  refused  to  set  aside  an  outlawry  upon  motion  for 
[  *140  ]  irregularity,    against   one    of   several   defendants,   who   was   a 

foreigner,  and  resided  abroad,  *before  he  had  appeared.  On  a 
writ  of  error  to  reverse  an  outlawry,  issue  being  joined  on  an  assignment 
that  the  outlaw  was  beyond  sea,  at  the  time  of  suing  out  the  writ  of 
exigent,  and  thence  until  the  time  of  pronouncing  the  outlawry,  and  the 
plaintiff  in  error  having  proved  the  previous  proceedings,  and  that  the 
outlaw  was  abroad  at  the  time  of.  suing  out  the  exigent,  the  court  of 
Common  Pleas  held  this  to  be  sufficient,  without  proving  the  time  when 
the  judgment  of  outlawry  Avas  pronounced,  or  that  the  defendant  was  then 
abroad. (a)  But  where  the  defendant  was  described  in  an  original  writ,  as 
T.  B.  of  C.  in  the  county  of  N.,  and,  upon  a  writ  of  error  brought  to 
reverse  the  outlawry,  the  error  assigned  was,  that  T.  B.  was  not,  before 
or  at  the  time  of  issuing  the  original  writ,  of  or  conversant  in  C.  aforesaid, 
and  that  there  was  not  any  town,  hamlet  or  place,  of  the  name  of  C.  in 
that  county  ;  to  which  the  plaintiff  pleaded,  that  he  prosecuted  his  Avrit, 
with  intent  to  declare  upon  a  bond  made  by  the  defendant,  by  which  he 
was  described  as  T.  B.  of  C.  in  the  county  of  N. ;  the  court  held,  that  this 
was  an  estoppel,  and  affirmed  the  judgment  of  outlawry.(5) 

At  common  law,  the  party  outlawed  must  have  appeared  in  person,  in 
order  to  reverse  an  outlawry ;  it  not  being  deemed  sufficient  for  him  to 
appear  by  dtto7-ney .{c)  But  now,  by  statute  4  &  5  W.  &  M.  c.  18,  §  3,  for 
the  more  speedy  and  easy  reversing  of  outlawries  in  the  court  of  King's 
Bench,  "  no  person  outlawed  therein,  for  any  cause  matter  or  thing  whatso- 
ever, treason  and  felony  only  excepted,  shall  be  compelled  to  come  or  appear 
in  person  in  the  said  court,  To  reverse  such  outlawry ;  but  shall  or  may 
appear  by  attorney,  and  reverse  the  same  without  bail,  in  all  cases  except 
where  sjjecial  bail  shall  be  ordered  by  the  said  court."  An  attorney  there- 
fore, making  an  affidavit  to  support  a  motion  to  set  aside  an  outlawry,  against 

(k)  5  Barn.  &  Ores.  314.    8  Dowl.  &  Ryl.  208,  S.  C.    1  Moore  &  P.  135,  (6). 

{1}  2  Moore,  567.    8  Taunt.  516,  S.  C. 

(a)  5  Taunt.  309.    1  Marsh.  58,  S.  C,  and  see  2  Car.  &  P.  125.    Ry.  &  Mo.  329,  S.  C. 

(6)  5  Barn.  &  Aid.  682.    1  Dowl.  &  Ryl.  328,  S.  C. 

(c)  Cro.  Jac.  462.  Trye,  11,  2.  2  Salk.  496.  In  the  case  of  French  v.  Moore,  M.  45  Geo. 
III.  K.  B.,  it  was  determined,  that  the  defendant  must  appear,  before  he  can  move  to  reverse 
an  outlawry :  And  this  case  was  recognized  by  the  court,  in  that  of  Summer vil  v.  Watkins,  14 
East,  536,  and  see  2  Moore,  567,  accord.  But  in  the  case  of  Graham  v.  Henry,  1  Barn.  &  Aid. 
132,  the  court  held,  that  the  defendant  need  not  appear,  before  he  moves  to  reverse  an  out- 
lawry :  for  until  it  be  reversed,  no  writ  exists,  to  which  he  can  appear. 


OF  OUTLAWRY.  140 

a  defendant  who  has  not  appeared,  must  show  that  he  is  authorized  to  act 
for  the  defendant. ((/(?) 

Before  the  allowance  of  a  writ  of  error,  or  reversing  an  outlawry,  by 
plea  or  otherwise, /o?'  ivant  of  p)'oclamations,  the  statute  of  £lizabeth,{ee) 
requires,  "  that  tlie  defendant  in  the  original  action  shall  put  in  bail,  not 
only  to  appear  and  answer  the  plaintiff  in  u  new  action,  to  be  commenced 
for  the  cause  mentioned   in  the  fonnov,{ ff)  but   also   to  satisfy 
the  condemnation,  *if  the  plaintiff  shall  begin  his  suit  before  the   [  *141  ] 
end  of  two  terms  next  after  allowing  the  writ  of  error,  or  other- 
wise avoiding  the  said  outlawry."(«)     On  reversing  the  outlawry,  for  any 
other  error  in  law  besides  the  want  of  proclamations,  it  was  long  unsettled, 
whether  the   defenant  should  be  obliged  to  put  in  special  bail.     In  the 
earlier  cases  upon  this  subject,  it  was  determined  that  he  should  :(i)     But 
there  are  cases  to  the  contrary,  in  the  time  of  Ilolt,  Ch.  J.  ;(c')  and  in  one 
of  them(f?)  it  is  said,  that  if  the  party  outlawed  come  in  gratis,  upon  the 
return  of  the  exigent,  &c.  he  may  be  admitted  by  motion  to  reverse  the 
outlawry,  for  any  other  cause  than  want  of  proclamations,  without  put- 
ting in  bail ;  but  if  he  come  in  by  cein  corjnis,  he  shall  not  be  admitted 
to  reverse  it  without  appearing  in  person,  as  in  such  case  he  was  obliged. 
to  do  at  common  law,  or  putting  in  bail  with  the  sheriff  for  his  appearance 
upon  the  return  of  cepi  corpus,  and  for  doing  what  the  court  shall  order. 
In  two  subsequent  cases(c)  however,  special  bail  was  put  in,  upon  revers- 
ing the  outlawry,  for  errors  in  laAv,  though  it  does  not  appear  but  that 
the  party  came  in  gratis.     At  length,  in  the  case  of  Serecold  v.  Hamp- 
son,[f)  the  court,  upon  considering  the  words  of  the  4  &  5  W.  &  M.  c. 
18  §  3,  which  empowers  the  outlaw  to  appear  by  attorney,  and  says,  "  the 
outlawry  shall  be  reversed  without  bail,  in  all  cases  except  where  special 
bail  shall  be  ordered  by  the  court,"  declared  they  were  of  opinion,  they 
had  a  discretionary  power  to  require  it  or  not ;  and  that  the  want  of  an 
affidavit  before  the  outlawry  was  no  objection, ((/)  because  that  is  only 
requisite  to  warrant  an  arrest:  and  though  the  31  Eliz.  c.  3,  §  3,  be  the 
only  act  that  expressly  requires  bail,  it  is  not  to  be  thence  inferred,  that 
in  other  cases  it  ought  not  be  insisted  on ;  for  that  act  makes  a  new  error, 
and  the  bail  upon  it  is  absolutely  to  pay  the  condemnation  money.     And 
accordingly,  it  is  now  settled,  that  on  reversing  an  outlawry,  for  any  other 
error  in  law  besides  the  want  of  proclamations,  bail  is  common  or  special, 
in  like  manner  as  upon  the  arrest. 

Where  special  bail  is  required,  it  need  not  be  put  in  before  the  allow- 
ance of  the  writ  of  error ;  but  it  is  well  enough,  if  put  in  at  any  time 
before  the  reversal.(7i)     And  in  a  late  case  it  was  determined,  that  upon 

[dd)  3  Dowl.  &  Ryl.  55,  and  see  3  Barn.  &  Cres.  T36.    D  Dowl.  &  Ryl.  G25,  S.  C,  accord. 

(ec)  31  Eliz.  c.  3,  §  3.    2  Salk.  496. 

[ff)  The  reason  seems  to  be,  that  the  process  is  determined  l)y  the  outlawry  ;  and  conse- 
quently the  plaintiff  cannot  declare  upon  it,  but  must  bring  a  new  action,  Cro.  Eliz.  707, 
but  see  March,  !),  i^  vide  post,  Chap.  XVII. 

(a)  R.  M.  12  Geo.  I.  0.  P.  accord.  And  see  3  Barn.  &  Cres.  529.  5  Dowl.  &  Ryl.  302,  S.  C, 
but  see  2  Barn.  &  Cres.  353.   3  Dowl.  &  Ryl.  575,  S.  C. 

(6)  Lit.  Rep.  301.    Garth.  459.    1  Ld.  Raym.  349,  S.  C.    Gilb.  C.  P.  19. 

(c)  12  Mod.  545.    1  Ld.  Raym.  G05,  S.  C.    2  Salk.  496.  (d)  1  Salk.  496. 

(c)  WM^  Watton^  E.  12  Geo.  L  cited  in  1  Wils  4.  Marlxn  .j-  Duckclt,  2  Str.  951.  2  Bar- 
nard, K.  B.  298,  S.  C. 

(/)  2  Str.  1178,  9.  1  Wils.  3,  S.  C.,  and  for  a  fuller  note  of  this  case,  see  12  East,  624,  in 
noiis.  {if)  -'!'«'«.  136,  7. 

(A)  1  Ld.  Raym.  603.    2  Str.  951.    2  Barnard,  K.  B.  293,  S.  C. 


141 


OF  OUTLAWRY. 


a  writ  of  error  prosecuted  bj  the  defendant  in  persoyi,  to  reverse  an  out- 
lawry, in  a  civil  action,  for  a  common  law  error,  the  recognizance  of  bail 
is  to  be  taken  in  the  common  alternative  form,  to  pay  the  condemnation 
money  or  render  the  principal,  and  not  absolutely  to  pay  the  condemna- 
tion money,(z')  as  in  the  case  of  reversing  an  outlawry  upon  the 
[  *142  ]  statute  31Eliz.  *c.  3,  for  want  of  proclamations. (a)  And  though 
in  that  case  it  was  said,  that  if  a  party  ask  of  the  court  to  inter- 
fere by  motion,  where  he  has  no  right  to  their  interference,  but  only  upon 
error  brought,  they  may  impose  upon  him  what  terms  they  think  just, 
yet  in  a  subsequent  case,  the  court  of  King's  Bench,  upon  motion,  reversed 
the  outlawry  of  the  defendant  in  a  civil  suit,  on  account  of  his  being 
beyond  sea  at  the  time  of  the  exigent  awarded,  upon  his  putting  in  bail  in 
the  alternative,  and  paying  all  costs,  including  any  which  might  have  been 
incurred  in  the  court  of  Exchequer,(J)  So,  in  the  Common  Pleas,  where 
the  defendant  is  of  right  entitled  to  reverse  the  outlawry  on  error  brought, 
the  court  in  general  will  relieve  him  on  motion,  without  imposing  any 
other  terms  than  payment  of  costs,  and  putting  in  special  bail,  when 
necessary,  or  rendering  the  defendant  :(c)  And  the  recognizance  of  bail 
in  that  court,  which  is  in  the  alternative,  to  pay  the  condemnation  money 
or  render  the  defendant,  as  in  the  King's  Bench,  may  be  taken  in  the 
original  cause. (c)  Where  an  outlawry  was  reversed,  on  account  of  the 
third  proclamation  not  having  been  made  one  month  at  least  before  the 
quinto  exactiis,  the  Court  of  King's  Bench,  supposing  the  want  of  due 
proclamation  to  be  only  an  irregularity,  directed  special  bail  to  be  put  in 
to  the  action,  in  the  common  form.(fZ)  But  where  the  third  prodarnation 
was  made  at  the  door  of  the  church  of  the  parish  of  which  the  defendant 
was  described  to  be  in  the  writ,  and  in  the  bond  upon  which  the  action 
was  brought,  but  where  he  did  not  reside  at  the  time  when  the  proclama- 
tion was  made ;  the  court  reversed  the  outlawry,  as  for  want  of  proclama- 
tions, and  ordered  bail  to  be  taken  to  pay  the  condemnation  money.(g)  In 
a  joint  action  against  two  defendants,  one  of  them,  being  in  Ireland  was 
sued  to  outlawry ;  and  judgment  being  had  against  the  other,  the  court, 
on  motion  to  reverse  the  outlawry,  made  the  rule  absolute,  on  putting  in 
bail,  and  consenting  to  give  judgment,  which  they  said  was  necessary  in 
a  joint  action,  on  account  of  the  original. (/) 

In  the  Common  Pleas,  when  a  defendant  is  outlawed  on  a  common  origi- 
nal in  trespass  quare  clausumf regit,  he  has  a  right  to  reverse  it  at  his  own 
expense,  on  entering  a  common  appearance,  and  payment  of  costs  :{g)  But 
special  bail  is  required,  on  reversing  an  outlawry,  where  the  sum  in  the 
original  amounts  to  twenty  pounds  or  upwards. (7i)  And  in  that  court,  no 
outlawry  shall  be  reversed,  after  the  death  of  the  plaintiff  in  the 
[  *143  ]  action,  *without  the  defendant's  appearance,  and  putting  in  special 
bail,  if  required,  to  the  executor  or  administrator  of  the  plaintiff ; 

(i)  12  East,  622.    4  Taunt.  691,  accord.  [a)  Ante,  140,  141. 

(6)  1  Jlaule  &  Sel.  409.  1  Barn.  &  Aid.  131,  accord,  but  see  12  Mod.  545,  per  Holt,  Ch.  J. 
2  Salk.  49G.  1  Ld.  Raym.  349.  Garth.  459.  Phillips  v.  Warburton,  M.  26  Geo.  III.  Berwick 
T.  Parkin,  E.  31  Geo.  III.  K.  B.  Imp.  K.  B.  10  Ed.  546.  8  East,  527,  and  see  R.  M.  1654,  §  13, 
R.  H.    2  Car.  I.  §  2,  C.  P.  Gas.  Pr.  G.  P.  29.    Barnes,  326.  (c)  4  Taunt.  691. 

{d)  2  Barn.  &'Cre3.  353.    3  Dowl.  &  Ryl.  575,  S.  C. 

(c)  3  Barn.  &  Ores.  529.    5  Dowl.  &  Ryl.  302,  S.  C. 

( f)  Per.  Car.  H.  22  Geo.  III.  K.  B.  {g)  Barnes,  324. 

(h)  R.  H.  2  Car.  I.  §  2.  R.  M.  17  Cir.  It.  C.  P.  Stat.  7  &  8  Geo.  lY.  c.  71,  but  see  R.  T.  2  Jac. 
II.  0.  P.,  by  which  special  bail  was  formerly  required  where  the  sum  amounted  to  ten 
pounds  or  upwards. 


OF  OUTLAWRY.  143 

or  to  liushand  and  •\\ifc,  "vn here  the  Avifc  wliilst  a  feme  pole,  sued  the  defendant 
to  an  outlawry  before  marriage :  provided  the  plaintiff's  attorney  do,  within 
fourteen  days  after  notice  given  to  him  of  the  defendant's  intention  to 
reverse  the  outlawry,  deliver  to  the  prothonotary  the  name  of  the  plain- 
tiff's executor  or  administrator. («)  In  general,  an  outlawry  can  only  be 
reversed  upon  payment  of  costs :  But  if  the  process  has  been  abused,  and 
made  subservient  to  purposes  of  oppression,  as  where  a  man  has  been  out- 
lawed who  was  already  in  prison  at  the  plaintiff's  suit,(6)  or  being  at  large 
did  not  abscond,  but  appeared  publicly,  and  might  have  been  arrested  or 
served  with  process,((')  the  court,  on  motion,  will  order  the  plaintiff  to 
reverse  the  outlawry  at  his  own  expense.  So,  Avhere  the  plaintiff  had  pro- 
ceeded to  outlaw  a  female,  and  obtained  judgment  of  waiver,  the  court  set 
it  aside  on  motion,  with  costs ;  it  appearing  that  she  was  in  prison,  during 
the  time  the  several  processes  were  sued  out,  and  that  the  plaintiff  was 
aware  of  that  fact,  and  knew  where  to  find  her.(c^) 

In  the  Common  Pleas,  the  reversal  is  entered  on  the  same  roll  where 
the  e.vi(jent  is  awarded. (e)  And,  on  reversing  the  outlawry,  the  defend- 
ant must  pay  to  plaintiff  or  his  attorney,  or  leave  in  court  for  him,  the  full 
and  just  costs  of  suit  to  the  exigent :  And  where  the  plaintiff,  by  virtue 
of  such  outlawry,  hath  taken  an  inquisition,  and  extended  the  goods,  kc, 
of  the  outlaw  into  the  king's  hands,  and  returned  the  same  into  the  Ex- 
chequer, such  further  just  and  reasonable  costs  shall  be  taxed  by  the  pro- 
thonotary, and  likewise  paid  to  the  plaintiff  or  his  attorny,  or  left  in  court, 
as  the  plaintiff  hath  been  at  in  taking  and  prosecuting  the  said  inquisition, 
before  any  certificate  of  such  reversal  shall  be  made  by  the  clerk  of  the 
outlawries. (/)  Also,  when  an  outlawry  hath  been  transcribed  into  the 
Exchequer,  and  process  made  out  thereupon,  and  afterwards  such  outlawry 
is  reversed,  before  any  judgment  shall  be  entered  for  removing  the  king's 
hands,  and  the  party  outlawed  restored  to  his  possession,  the  prosecutor 
of  the  outlawry  shall  be  paid  such  costs  as  shall  be  taxed  by  the  remem- 
brancer or  his  deputy,  for  the  proceedings  in  that  court.(^)  But,  with 
this  exception,  no  defendant  who  shall  appear  and  reverse  an  outlawry, 
shall  upon  such  reversal  pay  for  costs  to  the  plaintiff,  any  sum  of  money 
exceeding  the  usual  costs  of  the  exigent  in  the  Common  Pleas,  together 
with  the  fine  to  the  king  upon  the  original  ATrit,  if  any  was  paid  ;  and  all 
further  costs  shall  be  respited,  until  the  time  of  signing  judgment  for  the 
plaintiff.(/i) 

*When  the  outlawry  is  reversed,  or  the  defendant  has  obtained 
a  charter  of  pardon,  he  may  be  discharged,  if  in  custody,  by  writ   [  *144  ] 
of  supersedeas  ;{aa)  and  his  property,(W)  if  taken  into  the  king's 
hands,  shall  be  restored  to  him  by  writ  of  amoveas  manus,  or  otherwise, 
according  to  the  course  of  the  Exchequer.(cc)    And  when  a  sheriff's  offi- 
cer, being  in  possession  of  the  tenant's  effects  under  an  outlawry,  made  a 

(fl)  R.  T.  2  Jac.  II.  C.  p.,  and  see  Barnes,  323,  325. 
{b)  2  Vent.  46.    2  Salk.  495.  3    Barnes,  321. 

(c)  T.  Jon.  211.  Comb.  19.  12  Mod.  413.  2  Wils.  127,  but  see  Cas.  Pr.  C.  P.  61,  78,  151. 
Barnes,  320,  S.C.    M  321,  2,  3. 

(d)  9  Moore,  589.  .     (e)  R.  H.  2  Car.  I.  I  4,  C.  P. 
(  /• )  R.  T.  2  Joe.  II.,  and  see  R.  M.  1 7  Car.  II.  C.  P. 

{g)  R.  T.  1  W.  &  M.  Tcg.  1,  C.  P.  Barnes,  324.  {h)  R.  T.  33  Car.  II.  C.  P. 

{aa)  13  Car.  II.  stat.  2,  c.  2,  ?  4.    Trve,  122,  and  see  Append.  Chap.  VII.  g  36,  7. 
\bb)  As  to  chattels  real,  sec  Cro.  Eliz.  278.     2  Vern.  312.     Buub.  105,  and  as  to  chattels 
personal,  see  5  Mod.  61. 
{cc)  Trye,  90. 


2^^  OF  THE  BILL  OF  MIDDLESEX, 

distress  for  rent,  and  sold  the  goods  so  distrained,  and  afterwards  the  out- 
lawry was  reversed ;  it  was  ruled,  that  the  officer  was  liable  to  pay  the  pro- 
duce of  the  goods  to  the  landlord,  in  an  action  for  money  had  and 
received. (c?(?)  When  the  defendant  has  obtained  a  charter  of  pardon,  he 
must  sue  out  a  scire  facias,  to  give  notice  thereof  to  the  plaintiff,  in  order 
that  he  may  further  prosecute  his  action,  if  he  thinks  proper.(e) 

Every  outlawry  determines  upon  the  death  of  the  party  outlawed :(/) 
and  if  he  was  outlawed  in  a  civil  suit,  the  representatives  of  the  outlaw 
shall  have  restitution  of  the  land  seized,  or  of  the  personal  effects,  if  they 
remain  in  the  sheriff's  hands  undisposed  of:  but  in  criminal  cases,  out- 
lawry works  an  entire  forfeiture  of  the  outlaw's  estate,  both  real  and  per- 
sonal. In  order  to  reverse  an  outlawry  on  death,  there  must  be  a  certifi- 
cate from  the  minister  of  the  parish  where  the  party  died  or  was  buried, 
and  likewise  an  affidavit  of  his  death,  by  some  person  who  was  acquainted 
with  him,  and  was  present  at  the  death  or  burial ;  in  which  affidavit  the 
party  should  be  described  as  in  the  outlawry.  But  though  outlawry  deter- 
mines upon  the  death  of  the  outlaw,  yet,  before  the  king's  hands  can  be 
amoved  from  the  lands  or  goods  seized,  such  death  must  be  pleaded,  and 
judgment  entered  up  thereon  in  the  Exchequer,  upon  the  plea  being  con- 
fessed by  the  attorney  general.  And  in  like  manner,  if  the  outlawry  be 
reversed,  (which  must  be  done  in  the  court  where  the  action  was  originally 
brought,)  for  any  other  reason,  a  certificate  of  such  reversal  from  the  clerk 
of  the  outlawries  must  be  pleaded  and  confessed,  and  judgment  entered 
up  thereon  in  the  Exchequer,  before  the  king's  hands  can  be  amoved. 
These  proceedings  are  in  nature  of  a  suggestion  upon  the  roll,  in  the  court 
of  Exchequer;  and  the  judgment  of  the  barons  is,  "that  his  majesty's 
hands  be  amoved  from  the  possession  of  the  premises,  kc.'\g)  The  plea 
in  this  case  may  be  put  in  by  any  person ;  for  though  the  judgment  be, 
that  he  shall  be  restored  to  the  possession  of  the  premises,  yet  it  gives  no 
title  to  the  lands :  but  in  order  to  discharge  the  sheriff,  the  judgment  roll 
must  be  carried  to  the  pipe  office,  that  a  quietus  may  be  made  thereupon. 
If,  after  such  judgment,  any  difficulty  attends  the  getting  possession,  a 
writ  of  amoveas  manus  must  be  sued  out  of  the  Exchequer,  directed  to  the 
sheriff,  who  will  thereupon  deliver  possession. (/*) 


[n45]  *CHAPTER  VIII. 

Of  the  Bill  of  Middlesex  and  Latitat,  and  subsequent  Process 
thereon,  in  the  King's  Bench  ;  of  the  Capias  quare  Clausum  fregit, 
^c,  in  the  Common  Pleas  ;  aiid  of  Process  in  the  Exchequer  of 
Pleas. 

A  bill  of  Bliddlesex,  or  Latitat,  is  the  ordinary  mode  of  commencing 
actions  in  the  court  of  King's  Bench,  against  unprivileged  persons  :  And  a 
latitat,  being  a  kind  of  original  in  that  court,(a)  may  be  issued  in  the  first 

(dd)  7  Durnf.  &  East,  259. 

(e)  Trye,  134,  154,  and  for  the  form  of  this  writ,  and  of  the  return  thereto,  see  Append. 
Chap.  VILg  39,  40,41.  ( /•)  Cas.Pr.  C.  P.  36.  Ante,  135. 

(ff)  Append.  Chap.  Vll.  |  38.  (h)  2  SeL  Pr.  2  Ed.  305,  &c. 

(a)  Carth.  233.    2  Ld.  Raym.  883.    Cowp.  456. 


AND  LATITAT,  ETC.  145 

instance,  without  previously  suing  out  a  bill  of  Middlesex.ih)  But  this 
mode  of  commencing  actions  is  not  applicable  to  peers  of  the  realm,  corpo- 
rations, or  hundredors  on  the  statute  1  k^  (Jeo.  IV.  c.  31,  v»'ho,  not  being 
subject  to  a  capias,  must  be  sued  by  original  writ ;  nor  to  members  of  the 
house  of  commons,  who  for  the  same  reason  must  be  sued  by  original  writ, 
or  by  hill  for  the  real  cause  of  action,  stating  thcra  to  have  privilege  of  par- 
liament. And  there  is  no  need  of  any  process  for  commencing  actions 
against  attorneys  or  officers,  who  are  supposed  to  be  already  present  in 
court:  nor  'dg^msi  prisoners  in  the  actual  custody  of  the  marshal.  A  writ 
of  latitat,  issued  against  a  peer,  was  superseded  on  motion,  grounded  on  an 
office  copy  of  the  prsecipe,  in  which  the  defendant  was  styled  Baron  :{e) 
but  the  motion  for  this  purpose  must  be  made  as  soon  as  may  be,  and  before 
interlocutory  judgment. (J) 

The  bill  of  Bliddlesex,  or  latitat,  is  in  general  considered  merely  as  pro 
cess  to  bring  the  defendant  into  court.  It  might  therefore  formerly  have 
been  sued  out,  though  the  defendant  could  not  have  been  arrested  upon  it, 
before  the  cause  of  action  ;(c)  and  the  plaintiff  is  allowed  to  give  in  evidence 
a  cause  of  action  arising  after  it  is  sued  out,  and  before  the  exhibiting  of  the 
bill.(/)  But  in  a  late  case,  where  the  defendant  was  arrested  and  held  to 
bail  on  a  bill  of  Middlesex,  for  a  debt  not  due  at  the  time  of  the 
arrest,  the  court  ordered  the  bail  bond  to  be  delivered  up  to  *be  can-  [  *146  ] 
celled,  and  set  aside  the  bill  of  dliddlesex,  for  irregularity.(a)  It 
has  been  frequently  ruled  however,  that  for  certain  purposes,  a  bill  of  3Iid- 
dlesex  or  latitat,  out  of  the  King's  Bench,  may  be  taken  to  be  in  nature  of 
an  original  writ  in  the  Common  Pleas,(J6)  and  a  latitat,  even  without  a  bill 
of  3Iiddlesex,  if  properly  issued  and  continued  on  the  roll,  has  been  holden 
to  be  a  good  commencement  of  the  suit,  to  avoid  a  plea  of  the  statute  of 
limitations,(«?c)  or  a  tender  made  after  suing  it  out.((Zc^)  It  was  indeed  said  by 
Holt,  Ch.  J.  that  there  is  a  difference  between  a  civil  action,  and  an  action 
given  by  a  statute ;  for  in  the  first  case,  the  suing  out  a  latitat  within  the 
time,  and  continuing  it  afterwards,  will  be  sufficient ;  but  in  the  other  case, 
if  the  party  proceed  by  hill,  he  ought  to  file  his  bill  within  time,  that  it  may 
appear  to  be  upon  the  record  itself.(ee)  But,  upon  a  writ  of  error,  all  the 
judges  in  the  Exchequer  chamber  held,  that  a  latitat  is  a  kind  of  original 
in  the  King's  Bench  :{ff)  And  accordingly,  in  two  subsequent  cases,(r/^)  it 
was  holden  to  be  a  good  commencement  of  the  suit  in  a  penal  action.  Hence 
it  appears,  that  a  latitat  may  be  considered,  either  as  the  commencement  of 
the  action,  or  only  as  process  to  bring  the  defendant  into  court,  at  the  elec 

(6)  Sty.  Rep.  156,  178.  1  Sid.  53,  60.  Carth.  233.  2  Ld.  Raym.  880.  1  Str.  550.  2  Str.  730. 
2  Ld.  Raym.  1441,S.  C.  Willes,  258.  2  Bar.  961.  1  Blac.  Rep.  215,  S.  C.  3  Bur.  1241.  1  Blac. 
Rep.312,S.C.  2  Blac.  Rep.  925.  Forrest,  110.  9  East, 337, 344. 

(c)  3  East,  127,  and  see  3  Maule  &  Sel.  88. 

{d)  Lady  Napier's  case,  T.  21  Geo.  IIL  K.  B.  Ante,  118. 

(c)  Cro.  Eliz.  271.  Cro.  Jac.  561.  1  Vent.  28.  8  Mod.  343.  1  Wils.  142.  2  Bur.  967.  Doug. 
62.  4  East,  75. 

(/)  Cowp.  454.  7  Duraf.  &  East,  4.  4  East,  75,  and  see  2  Wms.  Saund.  5  Ed.  1.(1.) 

(a)  2  Chit.  Rep.  11. 

(bb)  Sty.  Rep.  156.  Carth.  233.  2  Ld.  Rayra.  883.  1  Wils.  147.  Cowp.  456. 

(cc)  Ante,  27.    2  Wms.  Saund.  5  Ed.  1.(1.) 

(dd)  Cro.  Car.  264.  1  Wils.  141,  but  see  3  Bos.  &  Pul.  330. 

(ee)  Carth.  233. 

(Jf )  2  Ld.  Raym.  883.  Cowp.  456. 

\gg)  Bridges  v.  Knapton,  and  Ilardiman  v.  Whilakcr,  cited  in  2  Bur.  9o0,  3  Bur.  1213. 
Cowp.  454.    2  East,  574. 


146  OF  THE  BILL  OF  MIDDLESEX, 

tion  of  the  plaiutifF.(7/)  Though  if  it  be  stated  as  the  commencement  of  the 
action,  to  avoid  a  tender,  the  defendant  may  deny  that  the  plaintiff  had  any 
cause  of  action  at  the  time  of  suing  it  out,(z)  or  if  it  be  replied  to  a  plea  of 
the  statute  of  limitations,  the  defendant,  in  order  to  maintain  his  plea,  may 
aver  the  real  time  of  suing  it  out,  in  opposition  to  the  teste.{k) 

Anciently,  it  seems,  the  process  in  trespass  in  the  King's  Bench  ■v\as 
founded  on  a  j)lciint  or  queritur,{I)  entered  on  the.records  of  the  court :  and 
the  first  process  thereon  was  a  precept  in  nature  of  an  attachment ;{m)  upon 
which  the  sheriff  returned,  either  that  he  had  attached  the  defendant, (w)  or 
that  he  had  nothing  by  which  he  could  be  attached. (o)  On  the  latter  return, 
if  the  defendant  did  not  appear,  there  issued  into  Middlesex,  or  other  county 
■where  the  court  sat,  a  precept  in  nature  of  a  capias,  commanding 
[  *147  ]  *the  sheriff  of  that  county  to  take  the  defendant,  if  he  should  be 
found  in  his  bailiwick,  and  safely  keep  him,  so  that  he  might  have 
his  body  before  the  king,  at  a  certain  time  and  place  therein  mentioned,  to 
answer  the  plaintiff,  in  a  plea  of  trespass,{a)  &c.  This  precept  being  now 
used  as  the  first  process  in  trespass,  when  the  defendant  is  in  31iddlesex,  is 
therefore  called  a  hill  of  Middlesex :  and  it  is  the  proper  process,  when  the 
defendant  resides  in  that  county ;  it  being  holden  that  a  latitat,  directed  to 
the  sheriff  of  3Iiddlesex,  is  irregular. (5)  If  the  defendant  cannot  be  arrested 
upon,  or  served  with  a  copy  of  this  process,  the  plaintiff  may  sue  out  an 
alias,{c)  and  after  that  (if  necessary,)  a  p)luries  bill  of  Middlesex  ;  command- 
ing the  sheriff,  as  before  or  as  oftentimes  he  has  been  commanded,  to  take 
the  defendant,  &c.(c?)  But  a  term  must  not  intervene  between  the  return  of 
an  alias,  and  the  issuing  of  n.pluries  bill  of  3Iiddlesex.    1  Man.  &  Ryl.  317. 

But  if  the  defendant  be  not  in  3Iiddlesex,  the  plaintiff  must  sue  out  a 
■writ  of  latitat,{e)  or  testatum  bill  of  3Iiddlesex,  directed  to  the  sheriff  or 
sheriffs  of  the  county  where  he  is  supposed  to  be,  reciting  the  former  pro- 
cess and  its  return,  and  suggesting  that  it  is  sufiiciently  testified,  the  defend- 
ant lurks  and  secretes  himself  in  their  county. (/)  A  writ  of  latitat  is 
considered  as  a  continuance  of  a  bill  of  3Iiddlesex.  7  Barn.  &  Ores.  526, 
1  Man.  &  Ryl.  232,  237,  S.  C.  Ante,  27.  This  writ  may  be  issued  in  the 
first  instance  ;(^)  and  if  it  prove  ineffectual,  the  plaintiff  may  sue  out  an 
alias,  and  after  that  (if  necessary,)  a  pluries  latitat,  or,  more  properly 
speaking,  an  alias  or  pluries  capias,{Jih){fov  these  writs  do  not  contain  any 
testatum,  or  suggestion  of  a  latitat;)  and  the  jyluries  maybe  repeated  from 
time  to  time,  till  the  defendant  be  arrested,  or  served  with  a  copy  of  it : 

(h)  Bui.  NL  Pri.  151.  1  Wils.  146.  Fugh  v.  3Iartin,  H.  24  Geo.  III.  K.  B.,  and  see  8  Durnf. 
&  East,  628.  2  Wms.  Saund.  5  Ed.  1.  (1.)  (/)  1  Wils.  141. 

(k)  2  Bur.  950.  3  Barn.  &  Cres.  .328.  5  Barn.  &  Cres.  149.  7  Dowl.  &  Ryl.  129,  S.  C.  1 
Barn.  &  Cres.  406,  and  see  4  Esj).  Eep.  100,  161,  as  to  evidence  of  the  commencement  of  the 
action,  &c. 

(l)  Append.  Chap.  VIII.  I  1.  In  Trye's/?/.?.//.  published  in  1684,  it  is  said,  that  there  were 
several  files  of  these  plaints,  then  remaining  in  the  former  upper  treasury  of  the  King's 
Bench  ;  and  the  profits  arising  from  them  were  formerly  so  considerable,  that  they  were 
always  excepted  by  the  chief  justice,  out  of  the  grant  of  the  ofiBce  of  custos  brevium.  Id.  p.  98, 
100.    See  also  Rich.Pr.  K.  B.  24.  2  H.  Blac.  271,  2. 

{m)  Trye,  99.  Stat.  8  Eliz.  c.  2.  Brown's  Vade  Mecum,  526,  and  see  Append.  Chap.  VIII. 
§  2.  (n)  Append.  Chap.  VIII.  §  3.  (o)  Id.  I  4. 

[a]  Append.  Chap.  VIII.  ?  6,  21.  {b)  1  Maule  &  Sel.  442. 

(c)  But  an  alias  writ,  being  founded  on  the  sheriffs  return  of  non  est  invenhts,  cannot  be 
sued  out,  when  the  service  of  the  first  is  complete.  IloUoway  y.  Whallcy,  T.  41  Geo.  III.  K.  B. 

{d)  Append.  Chap.  VIII.  g  9,  24.  (e)  Trye,  99. 

{/)  Append.  Chap.  VIII.  §  1 1,  28.  {g)  Ante,  145. 

(M)  Append.  Chap.  VIII.  §  19,  31. 


AND  LATITAT,  ETC.  147 

though,  according  to  some  books,(n)  there  must  be  a  nc^v  latitat,  after  four 
terms  from  the  time  of  suing  out  the  first.  Or,  -wlien  it  is  doubtful  in  Avhat 
county  tlic  defemhint  is  to  be  found,  the  plaintifl"  may  issue  several  -writs 
against  him  into  different  counties;  and  the  master  Mill  be  justified  in 
allowing  the  expenses  of  such  writs. (^)  In  any  of  these  writs,  there  may 
be  a  clause  of  7ion  omittas,  commanding  the  sheriff,  that  h«  do  not  omitj 
on  account  of  any  liberty  in  his  county,  but  that  he  enter  the  same,  »S:c.(/) 
And,  by  the  long  established  and  recognized  practice  of  the  court,  a  non 
omittas  writ  may  be  issued  in  the  first  instance,  without  suing  out  a  pre- 
vious writ,  and  waiting  for  the  sheriff's  return  of  mandavi  lallivo,  qui 
nullum  dedit  responsum.{m)  In  actions  not  bailable,  if  the  plaintiff  sue 
qui  tam,{n)  or  as  executor  or  administrator,  or  assignee  of  a  bankrupt,  &c., 
the  process  need  not  state  the  special  character  in  which  he  sues  ;  nor,  in 
an  action  against  an  executor  or  administrator,  &c.,  the  character  in  which 
he  is  sued.(o) 

*A  bill  of  3Iiddlesex,  and  notice  thereto,  describing  the  defend-  [  *148  ] 
ant  as  Mr.  A.,  without  stating  his  christian  name,  is  irregular. («) 
And,  in  the  King's  Bench,  where  the  party  arrested  was  described  in  the 
process,  and  affidavit  to  hold  to  bail,  by  the  initials  of  his  christian  name 
only,  the  court  ordered  the  bail  bond  to  be  delivered  up  to  be  cancelled, 
and  the  defendant  discharged  upon  entering  a  common  appearance. (6) 
And,  in  that  court,  where  the  christian  name  of  the  defendant  is  omitted 
in  a  bailable  latitat,  the  court,  on  motion,  will  set  it  aside,  for  irregularity; 
but  where  it  is  omitted  in  serviceable  process,  they  will  leave  the  party  to 
his  plea  in  abatement. (e)  So,  in  the  Common  Pleas,  if  a  defendant  be 
arrested  by  the  initials  of  his  christian  name  only,  and  sign  a  bail  bond 
in  a  similar  manner,  the  court  will  discharge  him,  on  entering  a  common 
appearance,  on  his  undertaking  to  bring  no  action. (c?)  So,  where  the 
christian  name  of  the  defendant  was  wholly  omitted  in  a  latitat,  the  pro- 
ceedings were  deemed  irregular,  and  set  aside  on  motion  :{e)  and  there  is 
no  distinction  in  this  respect,  between  bailable  and  serviceable  process. (e) 
But  where,  by  a  writ  of  capias  ad  respondendum,  the  sherifl' was  directed 
to  take  Messrs.  C.  and  D.,  without  mentioning  their  christian  names,  and 
they  afterwards  signed  a  bail  bond  in  their  christian  and  surnames,  the 
court  held  it  to  be  a  waiver  of  the  irregularity  in  the  writ.(/)  Also,  it  is 
a  rule,  that  every  subsequent  writ  should  correspond  with  that  which  is 
gone  before,  in  the  names  of  the  parties:  Therefore,  where  an  action  was 
brought  against  Bates  and  another,  for  an  act  done  by  them  as  justices  of 
the  peace,  and  the  latitat  against  Bates  was  by  the  name  of  William,  and 
the  alias  by  the  name  of  John,  the  court  thought  the  proceedings  irregu- 
lar, and  set  them  aside,  as  far  as  they  respected  Bates.{ij)  But  a  misno- 
mer may  be  cured,  by  altering  the  writ,  and  getting  it  resealed,  before  the 

(u)  Hans.  Introd.  1.    Prac.  Epit.  K.  B.  2,  Tamen  quaere. 

\k)  1  Chit  Rep.  544.  (/)  Append.  Chap.  YIII.  ?  26,  33. 

(m)  9  East,  330.  (n)  2  Str.  1232.     2  Blac.  Rep.  722.     3  Wils.  141,  S.  C. 

(o)  6  Moore,  GG.     3  Brod.  &  Ring.  4  S.  C. 

(,,) V.  Snoii;  E.  57  Geo.  III.  K.  B.     1  Chit  Rep.  398.  {a),  and  see  4  Moore,  317.     1 

Bred.  &  Ring.  529,  S.  C. 

{h)  4  Rarn.  &  Aid.  536,  and  sec  2  Dowl.  &  Ryl.  73,  237.  (r)  6  Rarn.  &  Cres.  165. 

(d)  6  Moore,  2G4,  and  see  3  Ring.  296.     10  Moore,  322,  S.  C.  accord.     1  Moore  and  P.  24, 
but  see  2  Ros.  &  Pul.  466,  contra. 

(e)  1  Chit.  Rep.  397. 

(/)  4  Moore,  317.     1  Brod.  &  Bing.  529,  S.  C.  but  see  6  Moore,  264.     3  Bing.  296. 
{g)  3  Durnf.  &  East,  660. 


j^g  OF  THE  BILL  OF  MIDDLESEX, 

return  :(70  And  where  process  is  sued  out  against  four  defendants,  one 
of  whom  is  misnamed,  it  may  be  served  upon  the  three  whose  names  are 
right,  and  if  the  name  of  the  other  be  afterwards  altered,  and  the  writ 
rcscalcd,  it  is  good  against  B].\.{i) 

The  phnintiffwas  formerly  allowed  to  join  four  defendants,  for  separate 
causes  of  action,  in  one  writ ;  and  to  declare  against  them  severally.(^) 
And  this  is  still  allowed,  in  the  Common  Pleas,  where  the  process  is  not 
bailable. (Z)     But  in  the  King's  Bench,  by  a  late  rule  of  court,(m)  "in  all 

actions  by  bill,  the  mesne  process  shall  contain  the  name  of  the 
[  *149  ]   defendant,  *or  (if  more  than  one,)  of  all  the  defendants  in  that 

action;  and  shall  not  contain  the  name  or  names  of  the  defend- 
ant or  defendants  in  any  other  action."  "Where  the  process  is  bailable,  a 
plaintiff  cannot,  in  either  court,  join  several  defendants  in  one  writ,  for 
distinct  causes  of  action :(«)  And  if  the  plaintiff  hold  two  defendants  to 
bail  on  a  joint  writ,  and  declare  against  them  severally,  the  court  will  set 
aside  the  declaration  and  subsequent  proceedings  for  irregularity. (ft)  Bail- 
able process  however  may,  it  seems,  be  taken  out  against  some  defend- 
ants, and  serviceable  process  against  others. (c)  And,  in  the  Common 
Pleas,  where  an  action  is  brought  against  more  tha.n  four  defendants,  and 
two  writs  are  sued  out,  it  does  not  seem  to  be  necessary  to  name  all  the 
defendants  in  each  writ.(c) 

The  bill  of  3Iiddlesex,  and  other  process  into  that  county  are  issued  out 
of  the  bill  of  Middlesex  office,  and  signed  by  the  clerk,  but  not  sealed. 
The  latitat,  and  other  process  thereon,  are  issued  and  signed  by  the  signer 
of  the  writs  in  the  King's  Bench  office,  and  afterwards  sealed  at  the  seal 
office.  The  clerk,  according  to  ancient  orders,  was  upon  the  signing  of 
every  writ  of  alias  and  pluries  capias,  and  of  every  non  omittas,  to  sub- 
scribe under  the  same,  the  term  when  the  latitat  was  sued  forth ;  and  no 
such  writ  could  be  signed  in  term  time,  before  a  note  was  delivered  in, 
subscribed  with  the  term  when  the  latitat  was  sued  forth,  for  the  entering 
of  the  same ;  and  in  vacation  time,  the  clerks  were  to  enter  every  such 
writ,  before  it  was  signed. ((i)  At  the  time  of  issuing  the  bill  of  Middle- 
sex, or  latitat,  ^'c,  the  plaintiff's  attorney  should  deliver  to  the  officer  a 
pr8ecipe,{e)  or  note  of  instructions :  And  it  is  usual  to  make  the  affidavit 
of  the  cause  of  action  at  the  same  time,  before  the  officer  or  his  deputy. 
In  point  of  form,  the  bill  of  Middlesex  and  latitat,  cj-c,  are  common  or 
special.  Before  the  making  of  the  statute  13  Car.  II.  stat.  2,  c.  2,  a  defend- 
ant might  have  been  arrested  and  holden  to  bail  for  any  sum  of  money,  upon 
a  common  bill  of  Middlesex  or  latitat,  &c.,  not  expressing  the  particular 
cause  of  action.  It  consequently  happened,  that  he  was  freqently  arrested, 
and  holden  to  bail  or  imprisoned,  for  a  large  sum  of  money,  when  perhaps 

(h)  1  Chit.  Rep.  321. 

(i)  Per.  Cur.  M.  55  Geo.  III.  K.  B.  1  Chit.  Rep.  398,  («),  and  see  6  Barn.  &  Aid.  111.  2 
Dowl.  &Ryl.  211,S.  C. 

(k)  Com.  Rep.  74.  4  Dumf.  &  East,  696,  and  see  Yardley  v.  Burgess,  T.  32  Geo.  III.  K. 
B.     4  Durnf.  &  East,  697.     1  Maule  &  Sel.  55. 

{I)  1  Bos.  &  Pul.  19,  49.  {m)  R.  E.  8  Geo.  IV.  K.  B.     6  Barn.  &  Cres.  639. 

(a)  Holland  v.  Johnson,  4  Durnf.  &  East,  695.  Holland  v.  Richards,  T.  32  Geo.  III.  K.  B. 
4  Durnf.  &  East,  697.     1  Bos.  &  Pul.  19,  49. 

{b)  4  East,  589.  1  Maule  &  Sel.  55.  1  Bos.  &  Pul.  49.  2  New  Rep.  C.  P.  82.  1  Marsh. 
274,  and  see  5  Durnf.  &  East,  722. 

(c)  1  Bing.  48,  68.     7  Moore,  301,  362,  S.  C. 

(d)^.  T.  1656,  reg.  1,  K.  B. 

(fi)  1  Chit.  Rep.  186.     Append.  Chap.  VIII.  §  5,  8,  10,  18,  20,  23,  25,  27,  30,  32,  34. 


AND  LATITAT,  ETC.  149 

there  was  no  real  plaintiff,  or  little  or  no  cause  of  action. (/)  To  remedy 
this  mischief,  it  was  enacted,  that  "no  person  arrested  Ly  any  sheriff,  &c.,  by 
force  or  colour  of  any  bailable  "writ,  bill  or  process,  issuing  out  of  the  King's 
Bench  wherein  the  certainty  and  true  cause  of  action  is  not  expressed  parti- 
cularly, shall  be  compelled  to  give  security  for  his  appearance  in  any 
penalty  or  sum  of  money,  exceeding  the  sum  of  fori//  pounds(^)  This 
statute,  says  Mr.  Justice  BIacIcston(',{Ji)  (without  any  such  intention  in  the 
makers,  (had  like  to  have  ousted  the  King's  Bench  of  all  its 
jurisdiction  over  civil  injuries  without  force ;  for  as  the  *bill  of  [  *150  ] 
Middlesex  was  framed  only  for  actions  of  frcs]yiss,  a  defendant 
could  not  be  arrested  and  holden  to  bail  thereupon,  for  breaches  of  civil 
contracts.  But  notwithstanding  this  statute,  the  defendant  might  still  be 
arrested,  and  holden  to  bail  upon  a  common  bill  of  INIiddlesex,  or  latitat,  &c. 
for  any  sum  not  exceeding /or^y  pounds :(«)  And  where  it  was  for  a  larger 
sum,  a  method  was  devised,  to  preserve  the  jurisdiction  of  the  court,  and  at 
the  same  time  to  authorize  an  arrest,  by  inserting  in  the  process  an  ac  ctiam, 
or  special  clause  beginning  with  these  words,  shortly  describing  the  true 
cause  of  acition,  in  addition  to  the  general  complaint  of  trespass. (6)  And  a 
rule  of  court  was  made  upon  this  statute,  that  no  attorney  should  make  any 
precept  or  w'rit,  with  a  clause  of  ac  etiain,  &c.  against  any  heir,  executor  or 
administrator  ;  nor  in  any  case  where,  by  the  course  of  the  court,  special 
bail  was  not  required. (c) 

In  trespass  therefore,  and  other  cases,  where  the  defendant  cither  cannot, 
or  is  not  meant  to  be  arrested,  and  held  to  specialbail,  the  process  in  general 
is  in  the  common  form,  requiring  the  defendant  to  answer  the  plaintiff,  in  a 
plea  of  trespass.  This  description  of  the  plea,  however,  though  it  was  here- 
tofore material, (cZ)  is  now  considered  as  mere  matter  of  form  :  Therefore, 
where  a  motion  was  made  to  stay  the  proceedings  on  a  bill  of  Middlesex, 
which  was  in  deht  only,  and  not  in  trespass,  with  an  ac  etiam  in  debt,  the 
court  ordered  the  bill  to  be  amended,  by  inserting  the  plea  of  trespass.ie) 
In  a  subsequent  case,(/)  where  the  bill  of  Middlesex  was  to  answer  the 
plaintiff  in  a  plea  of  debt,  instead  oftresp)ass,  and  also  to  a  bill  to  be  exhi- 
bited in  a  plea  of  trespass  upon  the  case,  the  court  refused  to  grant  a  rule 
for  setting  aside,  on  the  authority  of  a  case,  which  was  read  from  the  mas- 
ter's note  book,  exactly  in  point. (^^)  And  a  bill  of  Middlesex,  requiring 
the  defendant  to  appear  before  2(S,  is  good.(7J() 

"When  the  cause  of  action  is  of  a  bailable  nature,  and  it  is  intended  to 
arrest  the  defendant,  and  hold  him  to  special  bail,  for  a  larger  sum  than  40Z. 
there  should  be  a  clause  of  ac  etiam  in  the  process :  and  in  such  case,  an 
omission  in  the  ac  etiam  part  of  the  writ,  of  the  sum  for  which  the  defend- 
ant is  arrested, (z)  or  that  it  was  due  on  promises, (/c)  is  irregular,  and  he  can- 
not be  holden  to  special  bail  thereon.  There  are  also  some  cases,  in  which 
the  cause  of  action  must  be  expressed  in  the  process,  though  the  defendant 

(/)  See  the  preamble  to  the  statute. 

Iff)  Stat.  13  Car.  II.  stat.  2,  c.  2,  §  2,  and  seo  2  East,  305,  6. 

(h)  3  Blac.  Com.  287.  (a)  1  11.  Blac.  310. 

(b)  Trye,  102,  3,  and  see  N.  H.  2  Geo.  II.  ?  II.  K.  B.  2  Wils.  392.  2  East,  307.  2  Wms. 
Saund.  5  Ed.  52.  (1.)     Append.  Chap.  VIII.  "g  36,  &c. 

(<■)  R.  M.  15  Car.  II.  rcff.  2,  K.  B.  [d)  2  Str.  1072. 

(e)  1  Blac.  Rep.  462.  (/)  2  Durnf.  &  East,  513. 

(fff/)  M.  20  Geo.  III.  K.  B.  The  same  application  was  also  refused  in  II.  24  Geo.  III.  K. 
B.     2  Durnf.  &  East,  513,  (</),  and  see  2  Wms.  Saund.  5  Ed.  52.  (1.)     2  Chit.  Rep.  1G(5. 

{hh)  Per.  Cur.  U.  43  Geo.  III.  K.  B.  (t)  2  East,  305.  (A)  1  Chit.  Rep.  171. 


150  OP  THE  BILL  OF  MIDDLESEX, 

be  not  arrested,  and  held  to  special  bail:  Thus,  in  an  action  on  the  lottery 
act,  the  amount  of  the  penalties  sued  for  must  be  specified  in  the  first  pro- 
cess ;  even  though  the  defendant  be  not  holden  to  bail  thereon. (?)  And 
where  a  writ  is  sued  out  upon  a  recognizance  of  bail,  it  is  necessary 
[  *151  ]  *by  rule  of  court,(a)  that  after  the  words  "m  aplea  of  trespass," 
there  should  be  inserted  the  following  clause,  '■^  and  also  toahillof 
the  said  plamtiff,  against  the  said  defendant^  in  a  plea  of  debt  upon 
recognizance^  according  to  the  custom  of  our  court  before  us,  to  he  exhi- 
bited:" otherwise  the  defendant  or  his  attorney  is  not  bound  to  accept  of  a 
declaration  in  debt,  upon  such  recognizance.  An  ac  etiam  writ  is  holden 
to  be  a  good  continuance  of  common  process,  so  as  to  avoid  a  plea  of  the 
statute  of  limitations.(5) 

The  bill  of  Middlesex,  being  merely  a  precep)t,{c)  has  no  direction  or 
teste.  But  the  writ  of  latitat,  and  other  subsequent  process,  should  be 
directed  to  the  sherifi"  or  sheriffs  of  the  county,  where  the  defendant  is  sup- 
posed to  reside  ;{d)  or,  if  one  of  the  sheriffs  is  a  party,  to  the  other  ;(e)  or  if 
both  sherifis  are  parties  to  the  coroner;[f)  and  if  he  also  be  a  party,  to 
elisors  named  by  the  master  in  the  King's  Bench, (^)  or  prothonotaries  in 
the  Common  Picas. (A)  And  a  latitat  cannot  be  directed  to  the  sheriff  of 
Middlesex ;  for  if  this  were  allowed,  a  bill  of  Middlesex  might  never  be 
issued.(z')  But  where  the  copy  of  a  latitat  was  directed  to  the  sheriff,  and 
not,  as  it  ought  to  have  been,  to  the  sheriffs  of  London,  it  was  not  deemed 
irregular. (yt) 

It  was  formerly  holden,  that  a  writ  of  latitat,  &c.  did  not  run  into 
Wales,{l)  or  the  counties  palatine  :{m)  but  a  different  practice  now  pre- 
vails ;(yO  which  practice  is  recognized  as  ioWales,  by  the  statutes  13  Geo. 
III.  c.  51,  §  1,  2,(o)  and  5  Geo.  IV.  c.  106,  §  21. ;  and,  without  respect  to  the 
counties  palatine,  the  true  meaning  of  the  expression  breve  domiyii  regis 
non  currit,  &c.  is  said  to  be,  that  the  court  cannot  write  directly  to  the 
sheriff,  as  they  do  in  other  cases. (p)  In  a  county  palatine  therefore,  the 
process  should  be  directed  to  the  proper  officer  ;  as  in  Durham,  to  the 
Bishop,  or  his  chancellor ;  in  Cheshire,  to  the  Ohamberlain,  or  his  deputy ; 
and  in  Lancashire,  to  the  Chancellor  or  his  deputy  :{q)  And  an  alias 
capias,  directed  to  the  sheriffs  of  the  city  of  Chester  instead  of  the  cham- 
berlain of  the  county  palatine,  directing  him  to  issue  his  mandate  to  the  she- 
riffs, is  irregular,  and  maybe  set  aside  at  the  instance  of  the  defendant. (r) 
In  these  cases,  the  mandatory  part  of  the  writ  is  different  from  the  common 

(/)  4  Durnf.  &  East,  349,  577.     G  Durnf.  &  East,  617.     2  H.  Blac.  601. 

{a)  R.  E.  15  Geo.  II.  reg.  1,  K.  B.  This  rule  applies  to  the  form  of  the  latitat,  and  other 
subsequent  process.  In  a  bill  of  Middlesex,  the  form  is,  "m  a  plea,  ^-c,  according  to  the  cus- 
tom of  (he  court  of  the  lord  the  king,  before  the  king  himself,  to  be  exhibited." 

(b)  4  Barn.  &  Cres.  625.     7  Dowl."&  Ryl.  25,  S.  C. 

(c)  Trye,  97.     2  Sid.  129.     2  Str.  1069.     9  East,  340. 

(d)  Append.  Chap.  VIII.  §  12,  13.  (e)  5  Maule  &  Sel.  144. 

(/)  Append.  Chap.  VIII.  2  14,     1  Blac.  Rep.  506.     v.  Philips,  E.  42  Geo.  III.  K. 

B.  S.  P. 

(g)  3  East,  141.  (h)  2  Blac.  Rep.  911,  1218,  but  see  10  Moore,  266. 

(0  1  Maule  &  Sel.  442.  (k)  Per.  Cur.  E.  21  Geo.  III.  K.  B.  (I)  1  Wils.  19.3. 

{m)  T.  Raym.  206.  1  Lev.  256,  291.  2  Wms.  Saund.  5Ed.  193,  S.  C.  See  also  Hetl.  18. 
Cro.  Jac.  484.     2  Bulst.  54,  156. 

(n)  Doug.  213.  (o)  Id.  innotis. 

(p)  2  Str.  1089.  Andr.  191,  S.C.  See  also  R.  T.  21  Car.  I.  K.  B.  6  Durnf.  &  East.  71. 
1  Moore,  514.     Harg.  Tracts,  417,  &c. 

(?)  Append.  Chap.  VIIL  g  15. 

(r)  3  Moore,  237.     1  Bred.  &  Bing.  12,  S.  C.     1  Chit.  Rep.  374. 


AND  LATITAT,  ETC.  •  151 

form  ;(«)  and  If  the  officer,  to  whom  it  is  directed,  refuse  to  receive 
it,  he  is  liable  *to  an  attachment. (aa)  In  the  Cinque  ports^  the  [  *152  ] 
process  is  directed  to  the  Conatahle  of  Dover  castle,  his  deputy  or 
lieutenant  ;(66)  and  in  Berwick  upon  Tweed,  to  the  mayor  and  bailiffs  of 
Bertvick,(c)  In  the  isle  of  IJl^,  the  process  out  of  the  courts  at  Westmin- 
ster goes  in  the  first  instance  to  the  sheriff  of  CamhridijcKhire,  who  there- 
upon issues  his  mandate  to  the  bailiff  of  the  franchise. ((i)  And,  in  like 
manner,  where  the  defendant  resides  in  the  borou<^h  of  SouthtvarJc,  the 
process  is  directed  to  the  sherift'  of  the  county  of  Surrey^  who  issues  his 
mandate  thereupon  to  the  bailiff  of  the  borough,  and  not  to  the  bailiff  in 
the  first  instance. (e) 

The  latitat,  and  other  subsequent  process,  should  be  tested  in  the  name 
of  the  chief  justice,  or  senior  judge  of  the  court,  if  there  be  no  chief  jus- 
tice ;  and  this  proccss,(/)  as  well  as  the  capias  in  the  Common  ricas,Q/) 
may  be  tested  before  the  cause  of  action.     If  it  be  sued  out  in  term  time, 
it  is  usually  tested  on  the  first  day  of  that  term;  though  it  may  be  tested 
of  the  preceding  one  :{h)  If  sued  out  in  vacation,  it  should  be  tested  on 
the  last  day  of  the  preceding  term ;(/)  for  if  tested  in  vacation,  it  is  alto- 
gether void:(^)  And  in  all  continued  writs,  the  alias  must  be  tested  the 
day  the  former  was  returnable. (0    A  bill  of  Middlesex  may  be  stated  in 
pleading  to  have  been  sued  out  in  vacation,(w)  so  as  it  be  not  alleged  that 
the  court  was  then  holden  at  Westminster :{n)  and  it  may  be  stated  to  have 
been  sued  out  of  the  court  of  Westminster^  on  a  day  between  the  ession 
day,  and  the  quarto  die  post ;  for  though  the  courts  do  not  actually  sit  on 
the  essoin  day,  yet  in  law  it  is  considered  as  the  first  day  of  the  term.(o) 
And  this,  and  every  other  process  by  bill,  must  be  made  returnable  on  a 
particular  return  day,  or  day  certain,  in  full  term;(p)  as  on  Mondau  or 
some  other  day  of  the  week,  next  after  the  preceding  general  return  ;  and 
it  may  be  made  returnable  on  a  general  return,  in  full  term,  by  specifying 
the  day  of  the  week  on  which  it  falls,  as  on  Monday  in  fifteen  days  of  Saint 
Hilary,  &Lc.{q)    But  it  must  not  be  returnable  on  a  dies  non  juridicus  ;  as 
on  a  Sunday,  the  feast  of  the  Purification  in  Hilary  term,(r)  Ascension 
day  in  Easter  term,(.s)  or  Midsummer  day  (if  it  happen)  in  Trinity  term, 
unless  it  be  on  the  Friday  next  after  Trinity  Sunday,  in  which 
case  it  is  dies  juridicus  *by  the  32  Hen.  VIII.  c.  21. (a)    And  [  153  ] 
Monday  next  after  the  Morrow  of  the  Holy  Trinity  is  not  a  good 

(«)  Append.  Chap.  VIII.  §  35.  [aa)  2  Str.  1089,  and  sec  I  Moore,  514. 

ibb)  Append.  Chap.  VIII.  §  16. 

(c)  Id.  ^  17.  {d)  3  East,  128. 

(e)  U  East,  289.  and  see  1  Chit.  Rep.  374.  (i).  (/)  2  Bur.  9G7. 

(</)  1  Bos.  &  Pul.  343.    2  Bos.  &  Pul.  235.  (A)  5  Taunt.  064. 

(e)  3  Keb.  214.     T.  Jon.  149.      1  Ventr.  363.     2  Bur.  962. 

{k)  2  Bur.  954,  967.     5  Bur.  2588.     2  Blac.  Rep.  G83  S.  C. 

(l)  2  Salk.  699.  [m)  15  East,  378. 

(«)  2  Ld.  Ilayin.  1557.  and  see  3  Durnf.  &  East,  184.  15  East,  378.  but  see  2  Brod.  k 
Bing.  659. 

(o)  3  Durnf.  &  East,  183.  {p)  1  Str.  399. 

(q)  Append.  Chap.  V.  §  2G.  (r)  4  Barn.  &  Aid.  2S8.  and  see  8  Dowl.  k  Ryl.  450. 

(s)  I  Chit.  Rep.  400.  In  this  case,  a  bill  of  Middlesex  returnable  "  on  Thnrsdii/  next  after 
Evster  day,"  which  was  the  day  of  the  Ascension,  was  holden  to  be  irregular;  and  that  the 
objection  could  not  be  waived  by  the  defendant:  but  as  he  had  promised  to  take  no  adv.an- 
tao-e  the  court  set  aside  the  proceedings  without  costs,  and  on  the  terms  of  no  action  being 
brought.  „,        _ 

(a)  2  Inst.  264,  5.  Cro.  Jac.  16.  2  Bulst.  242.  7  Mod.  17.  6  Mod.  252.  1  Blac.  Rep. 
529.  and  see  R.  T.  35  Geo.  III.  K.  B. 


^gg      ^    OF  THE  CAPIAS  QUAE.E  CLAUSUM  FREGIT,  ETC. 

return  for  the  first  Monday  in  Trinity  term  ;  but  the  return  for  that  day 
should  be  Monday  next  after  eigltt  days  of  the  Holy  Trinity.  (Z>)  It  should 
also  be  observed,  that  as  there  are  more  than  seven  days  between  the  mor- 
row of  All  Souls,  and  the  morrow  of  St.  Martin,  in  Michaelmas  term,  the 
day  before  the  morrow  of  Saint  Martin,  being  the  11th  of  November,  is 
not  the  day  of  the  week  next  after  the  morrow  of  All  Souls ;  and  therefore, 
on  this  day,  the  bill  of  Middlesex,  or  other  process,  should  be  made  re- 
turnable on  Monday  (or  other  day  of  the  week,  being)  the  feast  of  Saint 
Martin.  There  is  no  necessity  for  any  particular  number  of  days  between 
the  teste  and  return  of  a  latitat,  or  other  process  by  hill:  even  one  was 
formerly  deemed  sufficient  ;(c)  and  it  may  be  now  sued  out  on  the  very 
return  day.(c^) 


The  ordinary  mode  of  commencing  actions,  in  the  court  of  Common 
Pleas,  is  by  writ  of  capias  quare  clausum  fi'egit ;  which  is  founded  on  a 
supposed  original,  and  answers  to  the  bill  of  Middlesex  or  latitat  in  the 
King's  Bench.(e)  The  writ  is  holden  to  be  a  good  commencement  of  the 
suit,  so  as  to  avoid  a  plea  of  the  statute  of  limitations ;(/)  and  in  point  of 
form,  it  is  common  or  special.  Where  the  cause  of  action  is  not  bailable, 
it  is  in  the  common  form,  commanding  the  sheriff  to  take  the  defendant, 
&c.  to  answer  the  plaintijQf,  of  a  plea  wherefore,  with  force  and  arms,  the 
close  of  the  plaintiff,  at,  cfc.  he  broke  ;  and  other  wrongs  to  him  did,  to  the 
great  damage  of  the  p>laintiff,  and  against  the  peace,  ^c.[g)  And  the  de- 
fendant may  be  arrested,  and  holden  to  special  bail,  upon  a  common  writ 
of  capias  quare  clausum  frcgit  in  the  Common  Pleas,  for  any  sum  not 
exceeding  40/.(A)  But  in  general,  where  the  cause  of  action  is  of  a  baila- 
ble nature,  an  ac  etiam  is  inserted  in  the  process,  or  special  clause  begin- 
ning with  these  words,  as  in  the  bill  of  Middlesex  or  latitat  in  the  King's 
Bench,  shortly  describing  the  real  cause  of  action. (z)  It  is  not  necessary 
however,  in  this  court,  that  a  clause  of  ac  etiam  should  be  inserted  on  the 
jjrsecipe,  or  instructions  for  the  wnt:{k)  nor  that  the  filacer's  name  should 
be  added  to  a  common  capias.{l)  The  writ  of  capias  quare  clausum  f regit 
should  be  tested  in  term  time,  and  returnable  before  the  king's  justices  at 
Westminster,  on  a  general  return  day :  And  as  it  is  founded  on  a  supposed 
original,  there  should  regularly  be  fifteen  days  between  the  teste 
[  *154  ]  and  return.  *If  there  were  not  so  many,  the  court  would  for- 
merly have  set  aside  the  proceedings  for  irregularity,  with 
costs  :(a)  but  afterwards,  they  permitted  this  defect  to  be  amended  :(5)  and 
now,  the  amendment  being  a  matter  of  course,  it  seems  the  court  will  not 
set  aside  the  process  for  irregularity  on  this  ground. (cc) 

If  the  defendant,  in  a  bailable  action,  cannot  be  taken  on  the  first  writ, 

(b)  5  East,  291.     1  Smith  R.  425,  S.  C.  and  see  1  Chit.  Rep.  323.  (a). 

(c)  2  Str.  917.     2  Barnardist.  K.  B.  60,  S.  C. 

(f?J  4  Durnf.  &  East,  610.  butsee  2  Ld.  Raym.  772.     2  Salk.  421.     7  Mod.  12  S.  G. 

(e)  Ante,  91,  104. 

(/)  2Ld.  Raym.  880.     Willes,  258.     2  Blac.  Rep.  925.     3  "Wils.  465,  S.  0. 

iff)  Append.  Chap.  VIII.  §  52.  (h)  1  H.  Blac.  301.     Ante,  150. 

(i)  Append.  Chap.  VIII.  g  54.     And  for  the  forms  of  ac  etiams,  in  C.  P.  see  id.  §  62,  3,  &c. 

[k)  2  Taunt.  161,  but  see  Barnes,  117,  contra. 

{I)  Cas.  Pr.  C.  P.  106.     1  H.  Blac.  120.  and  see  2  Chit.  Rep.  239,  356. 

(a)  Barnes,  409,420,  427.     2  Wils.  117,  S.  C.     1  H.  Blac.  222. 

(6)  3  Wils.  454.     2  Blac.  Rep.  918,  S.  C.  (cc)  I  H.  Blac.  291.     1  Bos.  &  Pul.  342 


OF  PROCESS'IN  THE  EXCHEQUER  OBlPL'EAS'.  ^    .  %  154 


.5^,,,  ^jjjj.  EXcllEQUER  OBlrL^A^.^    .  % 


before  It  is  returnable,  the  plaintiff  may  have  one  or  more  writs  of  capias 
hjj  continuance,  in  order  to  arrest  him  in  the  same  county;  and  need  not 
sue  out  an  alias  or  pluries  cai)iat<.{dd)  And  if  a  capias  by  continuance  be 
tested  on  the  same  day  as  the  original  caijias,  a  new  original  capias  may 
be  sued  out  to  warrant  it,  though  such  new  original  bear  teste  before  the 
cause  of  action  accrued. (e)  It  was  formerly  necessary,  where  the  defend- 
ant resided  in  a  different  county  from  that  in  which  tlic  plaintifl"  meant  to 
lay  the  venue,  to  sue  out  a  capias  into  the  latter  county,  and  then  a  testa- 
tum into  the  other ;(/)  fur  the  plaintiff  lost  his  bail,  if  he  dcchired  in  any 
other  count}''  than  tliat  in  which  the  capias  issued,  as  is  still  the  case  by 
original  in  the  King's  Bench  :(^)but  a  rule  having  been  made  in  the  Com- 
mon Pleas,(/f)  that  "where  the  defendant  is  arrested  by  virtue  of  a  capias 
ad  respondendum  in  any  county,  and  bail  is  put  in  thereupon,  the  plaintiff 
may  declare  in  a  different  county,  without  its  being  deemed  a  waiver  of 
the  bail,"  it  is  now  usual  to  sue  out  a  capias  at  once,  into  the  county  in 
which  the  defendant  resides;  and  where  he  cannot  be  found  in  that  county, 
the  plaintiff's  attorney  may  sue  out  a  capias,  or  testatum,(i)  into  another. 
AVhere  the  jfirst  capias  issued  on  an  affidavit  of  debt  sworn  before  and  filed 
witli  the  filacer,  if  a  second  capias  issue,  there  must  be  a  new  affidavit  of 
debt,  sworn  before  and  filed  with  the  filacer  of  the  second  county  ;(/i:)  the 
statute(/)  re([uiring,  that  the  affidavit  should  be  sworn  before  the  officer 
Avho  issues  the  process,  or  his  deputy:  but  where  a  testatum  capias  issues, 
a  new  affidavit  is  unnecessary  :(m)  And  an  original  cap)ias  cannot  regularly 
issue  into  a  county  palatine  ;(w)  but  the  defendant  maybe  arrested  therein 
on  a  testatum  capias.  In  any  of  the  foregoing  writs,  if  the  defendant 
reside  within  a  liberty,  there  may  be  clause  of  nan  omittas,{o)  empowering 
him  to  enter  it.  These  writs  are  issued,  on  a  T^ro^tcv  proecipc{p)  or  note 
of  instructions,  and  signed  by  the  filacer;  after  which  they  arc  sealed; 
and,  in  bailable  cases,  it  is  usual  at  the  same  time  to  make  an  affidavit  of 
the  cause  of  action,  before  the  filacer  or  his  deputy. 

*A  writ  cannot  be  altered,  after  it  is  issued,  without  re-sealing  [  *155  ] 
it  ;(rt)  but  a  mistake  therein  may  be  cured,  by  altering  the  writ, 
and  getting  it  re-sealed,  before  its  return  :{h)  And,  in  the  King's  Bench, 
the  return  day  may  be  altered,  and  postponed  from  time  to  time,  on  re- 
sealing  the  writ ;  provided  a  term  do  not  intervene  between  the  teste  and 
day  on  which  it  is  ultimately  made  returnable.(c) 


In  the  Exchequer  of  Pleas,  the  first  process  used  for  bringing  the  dcfend- 

{dd)  Imp.  C.  P.  7  Ed.  92.  The  capias  by  continuance  is  in  the  same  form  as  the  first  capias ; 
for  which  see  Append.  Chap.  VIH.  ^  52,  54. 

(e)  1  lios.  &  Pul.  342. 

(/)  For  the  form  of  a  testatum  capias,  in  C.  P.  see  Append  Chap.  VIII.  §  58,  and  for  the 
like  writ,  into  a  county  palatine,  see  id.  ^  G2. 

(ff)  3  Lev.  235.     R.  E.  2  Geo.  II.  [a).  K.  B. 

(A)  R.  II.  22  Geo.  III.  C.  P.     1  Moore,  515.  (t)  2  Bos.  &  Pul.  516. 

(k)  2  .Moore,  192.  8  Taunt.  242,  S.  C.  1  Maule  &  Sel.  230.  3  Biug.  39.  10  Moore,  318, 
S.  C.  accord,  but  see  2  Taunt.  IGl,  semb.  contra. 

(l)  12  Geo.  I.  C.29,  p. 

(m)  2  Taunt.  164,  166,  and  see  7  Barn.  &  Cres.  526.  1  Man.  &  Ryl.  232,  S.  C.  Post, 
179,  80. 

(n)  1  Moore,  514.  (o)  Append.  Chap.  VIII.  §  60. 

{p)  Id.  I  51,53,  56,  57,59.  61. 

(a)  1  Chit.  Rep.  319.  (6)  /(/.  321,  398.  (a).     Ante,  148. 

(cj  1  Barn,  k  Ores.  HI.     2  Dowl.  &  Ryl.  211.  S.  C. 


155 


^A^^<'^oi^^i^^ 


ant  into  court,  in  ordinary  cases,  is  a  venire  facias,  subpoena,  ov  quo  minus 
capias,  ad  respondendum.  The  venire  facias,  we  have  seen,(t?)  is  in  nature 
of  an  original  writ ;  and  was  the  process  used  at  common  law,  against  per- 
sons having  privilege  of  parliament.  This  process  is  issued,  on  a  proper 
prcvcipe,[e)  and  directed  to  the  sheriff;  commanding  him  to  cause  the 
defendant  to  come  before  the  barons  of  the  Exchequer  at  Westminster,  on 
a  day  in  term,  to  answer  the  plaintiif  of  a  plea  of  trespass  on  the  case,  [or 
as  the  nature  of  the  action  may  be,)  whereby  he  is  the  less  able  to  satisfy 
his  majesty,  the  debts  which  he  owes  him  at  his  Exchequer,  &c.(/)  On 
this  writ,  the  practice,  before  the  statute  51  Geo.  III.  c.  12-t,  §  2,  was  for 
the  sheriff,  to  whom  it  was  delivered,  to  make  out  a  warrant  or  summons[g) 
to  his  officer,  who  thereupon  summoned  the  defendant,  by  delivering  to 
him  a  copy  of  the  summons,  or  leaving  it  for  him,  in  his  absence,  at  his 
dwelling  house,  or  place  of  abode;  and,  upon  the  sheriff's  return  of  the 
names  of  the  summoners,(/i)  if  the  defendant  did  not  appear,  a  distringas[i) 
issued,  on  a  ^x o^er  prsecipe,{k)  against  his  lands  and  chattels,  upon  which 
the  sheriff  returned  issues  to  the  amount  of  40s. ;(?)  and  after  that,  if 
necessary,  an  alias  or  pluries  distringas  :{m)  And  it  was  a  rule,  that  when 
issues  were  returned  upon  any  writ  of  distringas,  the  plaintiff  might  im- 
mediately after  the  return  thereof,  apply  by  motion  for  increasing  issues, 
upon  further  process  to  be  issued  between  the  parties  ;  which  issues  were 
increased  from  time  to  time,  at  the  discretion  of  the  court.(w)  But  the 
process  by  venire  facias  and  distringas,  in  the  Exchequer,  is  now  regu- 
lated by  the  statute  7  &  8  Geo.  IV.  c.  71,  §  5.(o)  And  though,  when  the 
defendant  is  abroad,  the  plaintiff  is  not  allowed  to  issue  a  distringas,  as  a 
preliminary  step  to  entering  an  appearance  for  him  according  to  the  sta- 
tute, so  that  he  may  proceed  thereon  to  final  judgment,  as  if  the  defend- 
ant himself  had  appeared  ;(p)  yet  in  other  cases,  he  may  still 
[  *156  ]  proceed  by  distringas,  on  *service  of  the  venire  facias,  for  the 
purpose  of  compelling  an  appearance,  as  he  might  have  done 
before  the  act.(a)  The  present  mode  of  proceeding  on  that  statute,  is  by 
serving  the  defendant  personally,  if  possible,  with  a  copy  of  the  veriire  ; 
or,  if  he  cannot  be  met  with,  by  leaving  such  copy  at  his  dwelling  house, 
or  usual  place  of  abode,  (6)  with  some  adult  member  of  his  family  there,  or 
the  person  with  whom  he  lodges :  and  service  of  the  venire  on  the  wife  of 
the  defendant,  at  his  dwelling  house,  has  been  deemed  good  service,  (c) 
So,  where  a  copy  of  the  writ  was  left  with  a  servant  of  the  defendant's 
brother,  who  was  also  his  partner,  and  a  co-defendant  in  the  action,  at 
whose  house  the  servant  acknowledged  he  had  resided,  this  was  considered 
as  good  service,  although  the  party  at  the  time  was  out  of  the  kingdom  :{d) 

(d)  Ante,  92. 

(fi)  Append.  Chap.  VIII.  ?  76.  ( A)  Id.  ?  77.  (g)  Id.  I  80. 

(A)  M  §  81,  2.  («")  Id.  I  84.  (k)  Id.  §'83.  [1)  Id.  §  88. 

(m)  Id.  I  85.  And  for  the  form  of  a  sheriff's  warrant  oa  a  writ  of  distringas,  &c.  see  id. 
§87. 

(ra)  R.  T.  26  &  27  Geo.  II.  |  6,  in  Scac.  Man.  Ex.  Append.  212.  5  Price.  639,  n.  and  see 
Forrest,  29.  5  Price,  522,  3,  in  notis.  Id.  639,  as  to  the  manner  in  which  the  court  exer- 
cise their  discretion  in  increasing  issues  on  writs  o(  distringas. 

(o)  Ante,  114,  and  see  5  Taunt.  71.  [a). 

(p)  3  Price,  263.  And  see  id.  266,  n.  5  Price,  522,  639,  ante,  114,  (/),  by  which  it 
seems,  that  the  ancient  practice  of  issuing  writs  oi  distringas  in  the  Exchequer,  on  default  of 
appearance  on  the  venire  facias,  still  continues. 

(a)  3  Price,  263.  but  see  2  Price,  12.     5  Taunt.  703.     1  Marsh.  292,  S.  C. 

(b)  3  Price,  266.  (c)  2  Price,  4. 
{d)  3  Price,  176.  and  see  Bunb.  107.     Forrest,  29.     3  Price,  266,  7. 


IN  THE  EXCHEQUER  OF  PLEAS.  156 

but  delivering  a  copy  of  the  writ  at  the  counting  house  of  the  defendant,  is 
not  sufficient, (ee)  unless  it  be  given  to  a  partner,  or  some  accredited  person 
there. (^)  To  ground  a  motion  for  a  diatrlngas,  on  the  above  statute,  an 
affidavit  must  be  made  in  this  court,  similar  to  that  in  the  King's  Bench  and 
Common  Pleas  •,{ii)  and  the  subsequent  proceedings  are  the  same  as  in 
those  courts. 

The  suhprrna  ad  respondendum  is  a  process  directed  to  the  defendant ; 
commanding  him  to  appear  before  the  barons  of  the  Exchequer  at  West- 
minster^ immediately  after  service  thereof  in  term,  or,  if  sued  out  in  vaca- 
tion, on  a  day  in  the  next  term,  to  answer  the  king  under  the  penalty  of 
100^.,  concerning  certain  articles  then  and  there,  on  his  majesty's  behalf, 
to  be  objected  against  him. (A)  This  process,  we  have  seen,(j)  is  analagous 
to  the  suhpccna  in  Chancery,  or  on  the  equity  side  of  the  Exchequer :  and 
may  be  issued  out  of  the  oHice  of  Pleas ;  and  it  is  not  necessary  that  such 
process  should  be  signed  by  the  chief  secondary,  or  a  sworn  clerk  in  the 
office  of  the  king's  remembrancer.(^)  A  copy  of  the  writ,  or  label,[l)  spe- 
cifying the  day  of  appearance,  is  made  out  thereon,  and  served  on  the 
defemhint.  But  it  is  not  the  practice,  as  in  Chanceri/,  to  serve  asubjuvna, 
by  leaving  the  body  of  the  writ  with  the  defendant,  where  there  is  but 
one :  It  is  sufficient,  if  a  copy  or  label  be  left,  and  the  original  produced, 
and  shown  to  him.(m)  If  the  defendant  do  not  appear  within /our  days 
after  the  return  of  it,  an  affidavit{n)  is  made  of  the  service ;  upon  which 
there  issues  an  attaehment^{o)  and  afterwards,  if  necessary,  a  distringas, 
on  the  statute  7  &  8  Geo.  IV.  c.  71,  §  5.  Previously  to  that  statute  there 
issued,  on  the  defendant's  non-appearance  to  the  attachment,  an 
alias  or  *p)luries  aftacJwient,  with  a  clause  of  piroclamation  ;{a)  [  *157  ] 
and,  on  the  return  of  non  est  znventus,{b)  if  he  still  made  default, 
a  commission  of  rebellion,{c)  for  taking  him  into  custody  by  a  serjeant  at 
arms  :  but  now,  as  the  statute  7  &  8  Geo.  IV.  c.  71,  §  5,  extends  to  pro- 
cess by  subpoena  and  attachment,  the  mode  of  proceeding  to  compel  an 
appearance,  is  regulated  by  that  statute. (c?)  And,  by  a  late  rule  of  court,(ce) 
'"'■  prvecipes  for  all  subpoenas  and  attachments  that  are  issued  in  the  office 
of  pleas,  with  the  names  of  the  parties  therein,  the  returns  of  such  writs, 
the  dates  when  they  are  issued,  and  the  names  of  the  attorneys  or  side 
clerks  issuing  the  same,  shall  be  given  to  the  officer  who  signs  such  writs 
as  require  the  name  of  the  clerk  of  the  pleas  to  be  set  thereto,  on  issuing 
^\xc\\  subpoenas  and  attachments,(/)  and  on  the  issuing  of  all  attachments 
for  want  of  appearance,  the  affidavits  of  service(^_^)  of  the  sid^p'vnas  upon 
which  such  attachments  are  issued,  shall  be  filed  on  a  file  to  be  kept  for 
that  purpose  in  the  said  office." 

(ee)  2  Price,  9.  (/)  3  Price,  266. 

Iff)  Ante,  115;  and  see  Man.  Ex.  Append,  p.  15. 

(h)  Append.  Cliap.  VIII.  §  94.  (t)  Ante,  92. 

(k)  9  Price,  385  ;  but  see  R.  H.  19  Jac.  I.  R.  M.  36  Car.  II.  Exoheq.  contra;  which  rules 
were  considered  in  the  above  case  as  obsolete. 

(l)  Append.  Chap.  VIII.  §  96. 

(m)  6  Price,  34.  And  as  to  the  service  of  a  tubpoena,  on  the  Equity  side  of  the  court  of 
Exchequer,  see  1  Yonn.  &  J.  570. 

(n)  Append.  Chap.  VIII.  ?  97,  8.  (o)  Id.  ?  100,  Ac. 

(a)  Append.  Chap.  VIII.  ^  104.  [h)  Id.  ^  105. 

(c)  Id.  I  107.     And  for  the  form  of  the  returns  thereto,  see  id.  §  108,  9. 

(d)  Ante,  113,  &c. 

lee)  R.  E.  45  Geo.  III.  m  Scac.  Man.  Ex.  Append.  226.     8  Price,  506. 
(/•)  Append.  Chap.  VIII.  g  93,  99,  103,  106. 
[gg)  Id.  I  97,  8. 

Vol.  I.— II 


Igy  ON  PROCESS,  ETC. 

The  quo  minus  capias,  which  answers  to  the  bill  of  3Iiddlesex  or  latitat 
in  the  King's  Bench,  and  capias  quare,  clausum  fregit  in  the  Common 
Pleas,(/;/i)  is  a  process  directed  to  the  sheriff;  commanding  him  to  take 
the  defendant,  and  safely  keep  him,  so  that  he  may  have  his  body  before 
the  barons  of  the  Exchequer  at  Westminster,  on  a  day  in  term,  to  answer 
the  plaintifl'  of  a  plea  of  traspass,  whereby  he  is  the  less  able,  &c.(n)  This 
process,  as  well  as  the  venire  facias  and  distringas,  is  issued,  on  a  proper 
prcecipe,{k)  and  always  contains  a  clause  of  non  omittas  ;[l)  and  it  must 
be  tested  in  term-time,  in  the  name  of  the  chief  baron  or  senior  baron  of 
the  court,  if  there  be  no  chief  baron.  If  sued  out  in  term-time,  it  is 
usually  tested  as  in  the  other  courts,  on  the  first  day  of  that  term ;  or,  if 
sued  out  in  vacation,  on  the  last  day  of  the  preceding  one :  and  it  may  be 
made  returnable  on  any  day  in  term,  not  being  a  Sunday,  or  other  dies 
nonjuridicus,  as  the  feast  of  the  Purification,  &c.  If,  as  is  commonly  the 
case,  the  writ  be  made  returnable  on  a  general  return,  it  is  described 
accordingly,  as  in  process  by  original  writ ;  or,  if  on  any  other  day,  it  is 

usual  to  state  the  day  of  the  month,  as  "  on  the day  of 

instant,  [or  next  coming:")  and  it  may  be  made  returnable,  by  the  day  of 
the  month,  on  any  day  except  a  dies  non  juridicus.{m)  Writs  of  venire 
facias,  distringas,  and  quo  minus,  &c.  are  signed  with  the  name  of  the 
clerk  of  the  pleas  ;  but  suhijoenas,  and  process  of  contempt  thereon,  are 
not  signable,  but  issued  under  the  seal  of  the  court,  and  subscribed,  "  By 
the  Barons. "(w) 

In  suing  out  process,  in  the  Exchequer  of  Pleas,  the  attorneys  and  side 

clerks,  by  whom  the  business  of  the  court  is  transacted,(o)  act 
[  *158  ]  either  as  ^principals,  immediately  employed  by  the  parties,  or 

as  agents  to  attorneys  so  employed,  and  admitted  in  either  of  the 
other  courts  at  Westminster,  who  as  such  are  solicitors  on  the  plea  side  of 
this  court.  When  an  attorney  of  the  Exchequer  acts  as  principal,  his 
name  only  is  written,  opposite  to  that  of  the  clerk  of  the  pleas,  at  the  foot 
of  a  signable  process,  as  attorney  for  the  plaintiff;  but  when  he  is  only  an 
agent,  the  name  of  the  solicitor  for  whom  he  acts  is  first  written  thus,  "  E. 
F.  Solicitor,"  and  then  his  own  name,  and  afterwards  that  of  the  clerk  of 
the  pleas.  When  a  clerk  in  court  acts  as  principal,  his  name  is  written 
thus,  "  G.  H.  Clerk  in  Court,"  and  then  the  initial  of  the  name  of  the 
attorney  in  whose  division  he  is :  but  when  he  is  only  an  agent,  the  name 
of  the  solicitor  is  first  written,  and  then  his  own  name,  without  stating 
him  to  be  a  clerk  in  court ;  afterwards,  the  initial  of  the  attorney's  name  ; 
and  lastly,  the  name  of  the  clerk  of  the  pleas.  If  the  process  be  not 
signable,  the  attorneys  name  or  initial  is  indorsed  thereon,  instead  of  being 
written  at  the  foot  of  it. (a) 


{hh)  Ante,  82.  (tt)  Append.  Chap.  VIII.  §  111. 

\k)  Id.  I  76,  83,  110. 

{I)  Id.  §  77,  84,  111.  (ct)  1  M'Clel.  &  Y.  483,  495,  6. 

In)  Append.  Chap.  VIII.  §  94,  102,  104,  107.  (o)  Ante,  58. 

(a)  Append.  Chap.  VIII.  §  95,  101 ;  and  see  2  Chit.  Rep.  84.  For  writs  and  process  ia 
general,  in  the  court  of  Exchequer  of  Pleas,  see  Man.  Ex.  Pr.  Chap.  III. ;  for  the  venire  facias 
ad  retpo7idendum,  and  subsequent  process  of  distringas,  Id.  Chap.  IV.  Append.  Chap.  VIII. 
§  77,  &c.  84,  &c. ;  for  the  subpoena  ad  respondeiidum,  and  subsequent  process,  Man.  Ex.  Pr. 
Chap.  VI.  Append.  Chap.  VIII.  §  94,  &c. ;  and  for  the  quo  minus,  &c.  Man.  Ex.  Pr.  Chap. 
VIII.  IX.  X.     Append.  Chap.  VIII.  g  111,  &c. 


OF  INDORSEMENTS.  ETC.  158 

It  will  here  be  proper  to  take  notice  of  some  things  that  are  required  by 
act  of  parliament,  to  be  set  down,  subscribed  to,  or  indorsed  upon  the  pro- 
cess, in  the  different  courts.  And  first,  by  the  statutes  5  &  G  W.  &  M.  c.  21, 
§  4,  and  9  k  10  W.  III.  c.  25,  §  42,  made  for  preventing  abuses  committed 
by  arresting  persons,  without  any  writ  or  legal  process  to  justify  the  same, 
and  by  that  means  evading  the  stamp  duties  thereon  ;  the  ofhcer,  who  shall 
sign  any  writ  or  process,  to  arrest  any  person  or  persons  before  judgment, 
shall,  at  the  signing  thereof,  set  down  upon  such  writ  or  process,  the  day  and 
year  of  his  signing  the  same."(^)  And  by  a  subsequent  statute,(c)  made  for 
the  like  purposes,  "every  warrant,  issuing  upon  any  such  writ  or  writs,  shall 
have  the  same  day  and  year  plainly  and  distinctly  set  down  thereon,  as  shall 
be  so  set  down  on  the  writ  itself."  The  indorsement  of  the  date,  however, 
is  said  to  be  no  part  of  the  writ:  and  therefore,  if  the  teste  be  right,  the 
courts  will  not  set  aside  the  proceedings,  for  a  mistake  of  the  indorsement.(f?) 
But  where,  in  an  action  against  an  attorney  for  negligence,  in  not  proceeding 
to  judgment  and  execution  in  due  time,  the  bill  of  Middlesex  against  the  ori- 
ginal defendant  (having  no  teste,)  was  stated,  under  a  videlicet,  to 
have  issued  *on  the  24th  of  January  1785,  returnable  on  Monday  [  *159  ]; 
next  after  fifteen  days  of  St.  Hilary  in  the  same  year,  which  was 
really  the  fact,  but  by  a  mistake  of  the  indorsement,  it  appeared  in  evidence 
to  have  issued  on  the  24th  of  January  1784,  the  plaintiff  was  nonsuited  ;  and 
on  a  motion  for  a  new  trial,  the  court  were  of  opinion,  that  the  time  of  pro- 
ceeding against  the  original  defendant  depending  on  the  return  of  the  writ, 
the  return  became  material,  and  therefore  the  variance  was  fatal. (a) 

By  the  statute  12  Geo.  I.  c.  29,  §  2,  the  sum  specified  in  the  affidavit  of 
the  cause  of  action,  is  required  to  be  indorsed  on  the  back  of  the  writ  or 
process  for  holding  the  defendant  to  special  bail.  This  part  of  the  statute, 
however,  is  merely  directory  to  the  sheriff;  and  does  not  avoid  the  process, 
when  the  sum  sworn  to  is  not  indorsed  upon  \%.{bh)  And  where  the  demand  is 
made  up  of  several  items,  it  is  sufficient  to  indorse  the  total  of  them  on  the 
writ.(cc) 

A  further  regulation  was  made  by  the  statute  2  Geo.  II.  c.  23,  §  22,  which 
enacts,  that  "every  writ  and  process,  for  arresting  the  body,  and  every  writ 
of  execution,  or  some  label  annexed  to  such  writ  or  process,  and  every  war- 
rant that  shall  be  made  out  thereon,  shall,  before  the  service  or  execution 
thereof,  be  subscribed  or  indorsed  with  the  name  of  the  attorney,  clerk  in 
court,  or  solicitor,  written  in  a  common  legible  hand,  by  whom  such  writ, 
&c.  respectively  shall  be  sued  forth  ',{dd)  and  where  such  attorney,  &c.  shall 
not  be  the  person  immediately  retained  or  employed  by  the  plaintiff,  then 
also  with  the  name  of  the  attorney,  &c.  so  immediately  retained  or  em- 
ployed, to  be  subscribed  or  indorsed  and  written  in  like  manner.  And  that 
every  co/'^  of  any  writ  or  process,  that  shall  be  served  upon  any  defendant, 
shall,  before  the  service  thereof,  be  in  like  manner  subscribed  or  indorsed, 

(6)  Append.  Chap.  VII.  g  2.     Chap.  VIII.  §  7,  22,  29,  55,  95,  101. 

(c)  6  Geo.  I.  c.  21,  g  54. 

[d)  1  Wilg.  91.  And  the  indorsement  by  the  officer,  on  the  back  of  a  writ  of  summons  of 
four  knights,  to  make  election  of  the  grand  assize,  on  a  writ  of  right,  that  "  the  four  knights 
were  duly  iworn,"  which  was  not  true,  was  holdun  to  be  no  part  of  the  return,  so  as  to  make 
the  sheriif^answurable  for  the  contents  of  such  indorsement,  in  an  action  for  a  false  return. 
3  Moore,  249.     1  Brod.  &  Biug.  17,  S.  C. 

{a)  1  Durnf.  &  East,  G5G. 

(66)  1  Bur.  330.    Barnes,  414.     1  11.  Blac.  76.    4  Bing.  63 ;  but  see  2  New  Rep.  C.  P.  202. 
iemb.  contra, 
{cc)  4  Biug.  63.  {dd)  Append.  Chap.  VIII.  §  22,  29,  55. 


jf^g  OF  IRREGULARITY  IN  PROCESS. 

with  tlie  name  of  the  attorney  or  solicitor  who  shall  be  iinmediately  re- 
tained or  employed  by  the  plaintiff."  And,  by  a  late  rule  of  the  court  of 
Kin<'''s  Bench, (e)  "the  attorney  concerned  for  the  plaintiff  in  the  cause,  or 
his  agent,  shall,  upon  all  bailable  mesne  process,  and  every  writ  of  attach- 
ment, indorse  the  place  of  abode  and  addition  of  the  party  against  whom 
the  writ  issued,  or  such  other  description  of  him,  as  such  attorney  or  agent 
may  be  able  to  give." 

But,  by  the  statute  12  Geo.  II.  c.  13,  §  i,  "  the  not  subscribing  or  indorsing 
the  name  of  the  attorney,  &c.  on  any  warrant  that  shall  be  made  out  upon 
any  writ,  &c.  shall  not  vitiate  the  same  ;  but  such  writ,  &c.  and  all  proceed- 
ings thereon,  shall  be  as  valid  and  effectual,  notwithstanding  such  omission, 
as  if  the  preceding  act  had  not  been  made;  provided  the  writ,  whereon  such 
warrant  is  made  out,  be  regularly  subscribed  or  indorsed,  according 
[  *160  ]  to  the  act."(/)  Since  the  making  of  this  statute,  *though  the 
omission  of  the  attorney's  name  upon  the  warrant,  which  is  the 
act  of  the  sheriff,  will  not  vitiate  the  proceedings, (a)  yet  if  it  be  not  sub- 
scribed to  or  indorsed  on  the  writ,  or  copy[h)  they  may  be  set  aside  for 
irregularity. 

Lastly,  by  the  statute  7  &  8  Geo.  IV.  c.  71,  §  8,  reciting  that  arrests  of 
the  person  had  in  many  instances  been  made  under  writs  sued  out  by  per- 
sons not  being  attorneys  or  solicitors,  and  whose  places  of  residence  were 
unknown,  which  practice  had  been  found  to  be  productive  of  oppression 
and  vexation ;  it  is  enacted,  that  "  no  sheriff,  under-sheriff,  or  other  officer, 
having  the  execution  of  process,  shall  grant  any  warrant  for  the  arrest  of,  or 
shall  arrest  the  person  of  any  defendant,  upon  any  writ  or  process  issued  by 
any  plaintiff  in  his  own  person,  unless  the  same  writ  shall,  at  or  before  the 
time  of  granting  such  warrant,  or  of  making  such  arrest,  be  delivered  to  such 
sheriff,  under-sheriff,  or  other  officer  having  the  execution  of  process,  by 
some  attorney  of  one  of  the  courts  of  record  at  Westminster,  or  of  the 
courts  of  Great  Sessions  in  Wales,  or  of  the  courts  of  the  counties  palatine 
of  Lancaster  or  Durham,  or  of  the  court  out  of  which  the  said  writ  shall 
have  issued,  or  by  the  clerk  of  such  attorney,  or  an  agent  authorized  by  such 
attorney  in  writing;  and  unless  the  said  writ  shall  be  indorsed  by  such  attor- 
ney or  his  clerk,  or  such  agent  as  aforesaid,  in  the  presence  of  such  sheriff, 
under-sheriff,  or  other  officer  having  the  execution  of  process,  with  the  name 
and  place  of  abode  of  such  attorney."  And,  by  §  9,  "all  warrants  granted, 
and  all  arrests  of  the  person  made,  contrary  to  the  provisions  of  that  act, 
shall  be  altogether  illegal  and  void.  Provided  always,  that  nothing  therein 
contained,  shall  extend  to  any  writ  or  process  sued  out  by  any  attorney, 
solicitor,  clerk  of  court,  or  other  officer  of  any  court,  having  authority  to 
sue  out  process  in  his  own  name." 

If  there  be  no  process,((?)  or  if  it  be  defective  in  point  of  form,(c?)  or  in 
its  direction,(^)  teste,(^)  or  return,(^)  or  the  attorney's  name  be  not  indorsed 

(e)  R.  H.  2  &  3  Geo.  IV.  K.  B.    5  Barn.  &  Aid.  560.    2  Chit.  Rep.  377.    1  Dowl.  &  Ryl.  47 1. 
(/)  See  R.  T.  1  Geo.  II.  [b).  K.  B.     1  Chit.  Rep.  611,  (a). 

(a)  Pr.  Reg.  441,  2.     Barnes,  414,  S.  C. 

(b)  Barnes,  415.      Wright  ^  another  v.  Willes,  M.  21  Geo.  III.  K.  B.     Per  Cur.  T.  29  Geo. 
III.  K.  B.,  but  see  Pr.  Reg.  440,  41.     Cas.  Pr.  C.  P.  102.     Barnes,  407,  S.  C. 

(c)  2  Chit.  Rep.  237.  {d)  3  Durnf.  &  East,  660. 
(e)  2  Ken.  287.     1  Blac.  Rep.  506.     Barnes,  422. 

(if )  2  Bur.  954,  967.     5  Bur.  2588.     2  Blac.  Rep.  683,  S.  C.     Barnes,  407,  8,  9,  420. 
{g)  1  Str.  399. 


OF  ENTERING  PROCESS  ON  THE  ROLL.  ICO 

upon  it,(/t)  the  defendant  may  move  the  court  to  set  aside  the  proceedings 
for  irregularity.  And  a  writ,  liaving  a  wrong  return,  will  not  be  aided,  by 
a  correct  day  being  mentioned  in  the  notice  to  appear.(i)  But  he  cannot 
take  advantage  of  any  error  or  defect  in  the  process,  after  he  has  appeared  to 
it,(/c)  or  taken  the  declaration  out  of  the  o(Tice,(/)or  obtained  time  to  put  in 
bail  to  the  action  ;(?«)  for  it  is  the  universal  practice  of  the  courts, 
that  the  *application  to  set  aside  proceedings  for  irregularity  [  *1(J1  ] 
should  be  made  as  early  as  possible,  or,  as  it  is  commonly  said, 
in  the  first  instance ;(«)  and  where  there  has  been  an  irregularity,  if  the 
party  overlook  it,  and  take  subsequent  steps  in  the  cause,  he  cannot  after- 
wards revert  back  and  object  to  it.{b)  In  the  Common  Pleas,  the  court 
will  not  quash  a  writ,  on  the  ground  of  its  having  been  served  in  a  wrong 
county. (e)  And  it  is  said,  that  a  mistake  in  the  process  is  cured  by  the 
plaintiff's  entering  an  appearance,  which  has  always  been  looked  upon  as 
effectual  for  that  purpose,  as  if  the  defendant  had  entered  the  appear- 
ance ;{d)  bnt  the  plaintiff  cannot,  by  entering  an  appearance,  cure  the 
want  of  service  of  a  copy  of  the  process,(e)  or  a  defect  in  the  notice  sub- 
scribed thercto.(/)  It  is  also  said,  that  no  advantage  can  be  taken  of  the 
irregularity  of  process,  without  having  it  returned,  and  before  the  court. (^7) 
And  where  the  irregularity  complained  of  is  not  in  the  process,  but  in  the 
notice  to  appear  thereto,(7i/i)  or  in  the  service  of  it,{ii)  the  rule  should  be  to 
set  aside  such  service,  and  not  the  process  itself.(M)[A] 

The  courts  will  in  general  amend  the  process,  where  there  is  any  thing 
to  amend  by:(Z/)[B]  and  it  has  been  amended  in  the  name  of  the  defend- 

(A)  Wright  and  another  v.  ^YiUcs,  M.  21  Geo.  III.  K.  B.  Per  Cur.  T.  29  Geo.  III.  K.  B. 
Barnes,  415. 

(»■)  2  Chit.  Rep.  356.  and  see  4  Barn.  &  Aid.  288. 

\k)  1  Str.  155.     Barnes,  163,  167,  415.     1  Bos.  &  Pul.  250,  344. 

(/)  Cas.  temp.  Hardw.  242.  2  Str.  1072,  3.  Wright  ij-  another  v.  Willes,  M.  21  Geo.  III.  K. 
B.     Barnes,  416.     1  H.  Blac.  222,  3  C.  P. 

(m)  G  Barn.  &  Cres.  76.     9  Dowl.  &  Ilyl.  124,  S.  C. 

\a)  3  Durnf.  &  East,  7.     1  East,  334,  5.     8  Dowl.  &  Ryl.  450.     9  Price,  637. 

[b]  1  East,  77,  and  see  3  Uunif.  &  East,  10.  5  Durnf.  &  East,  254,  464.  1  East,  330.  2 
Smith,  R.  391.  1  Chit.  Rep.  333.  2  Chit.  Rep.  236.  8  Dowl.  &  Ryl.  450,  K.  B.  1  U.  Blac. 
251.     1  Bos.  &  Pul.  250,  344.     1  Taunt.  59.     2  Taunt.   244.     4   Taunt.   545.     6  Taunt.  6. 

1  Marsh.  403,  S.  C.     6  Taunt.  185.     1  Moore,  209,  C.  P.     9  Price,  637,  Excheq. 

(c)  I  Marsh.  9. 

(rf)  Prac.  Reg.  347,  8.  Scd  qucere  ?  as  from  later  decisions  it  seems,  that  in  the  Common 
Pleas,  the  defendant  is  not  bound  to  apply  to  the  court,  for  an  irregularity  in  process,  until 
the  plaintiff  has  taken  some  step,  by  which  he  shows  that  he  means  to  proceed  upon  it.  6 
Taunt.  5.    1  Marsh.  403,  S.  C,  and  see  5  Taunt.  664.    6  Taunt.  191,  2.    1  Marsh.  551,  S.  C. 

2  Chit.  Rep.  236.     7  Moore,  461.     1  Bing.  122,  S.  C. 

(e)  Barnes,  406.  (/)  Prac.  Reg.  347.    2  Price,  9. 

Iff)  3  Wils.  58,  but  see  5  Taunt.  854,  where  it  was  said  by  Mr.   Sergeant  Best,  arguendo 
that  the  practice  was  uniform,  to  make  these  motions  before  the  writ  was  returned. 
(hh)  9  East,  528.     5  Taunt.  652,  (a).     1  Chit.  Rep.  384. 
(h)  5  Taunt.  644.     1  Bing.  65.  (kk)  I  Chit.  Rep.  616,  (a). 

(11)  1  Durnf.  &  East,  782. 

[a]  Where  the  delayer  irregularity  in  the  cause  has  proceeded  from  the  gross  negligence 
or  ignorance  of  the  solicitor,  the  court  will,  in  its  discretion,  relieve  the  client  against  the 
consequences  of  the  delay  or  irregularity.  Pratt  v.  Adam.t,  7  Paige,  C.  R.  615.  The  costs 
of  an  irregularity  arising  from  the  gross  ignorance  or  negligence  of  the  solicitor,  will  be 
charged  upon  the  solicitor  personally.  (  Walworth,  Ch.)  Kane  v.  Van  Vranken,  6  Paige,  C. 
R.  62. 

[b]  In  this  country  amendments  have  been  much  regulated  by  statutes,  and  great  liber- 
ality has  been  allowed.  Thus  in  Pennsylvania,  the  pleadings  may  be  amended  at  any  stage 
of  the  proceedings  before  or  on  the  trial;  and  mistakes  in  the  names  of  the  parties  may  be 
corrected  even  after  judgment  by  confession.     Purd.  Dig.  p.  38,  Brightly's  Ed.  1853.     In 


IQl  OF  ENTERING  PROCESS  ON  THE  ROLL. 

ant,  where  he  was  a  prisoner  in  custody  under  it.{mm)  But  the  court  of 
Kinf^'s  Bench  would  not  grant  a  rule  for  amending  the  writ,  under  which 

(mm)  Per  Cur.  M.  48  Geo.  III.  K.  B.,  and  see  7  Durnf.  &  East,  698. 

Ohio,  like  liberality  is  allowed.  See  Curwen's  Laws,  p.  1183,  1184.  And  in  New  York. 
Bee  Blatcbford's  Gen.  Stat.  p.  240.     Massachusetts  Rev.  Stat.  ch.  100,  §  22,  p.  608. 

The  power  to  grant  amendments  is  a  discretionary  power  in  the  court,  and  in  general, 
will  not  be  interfered  with  on  writ  of  error.  Caldwell  v.  M^Kee,  8  Missouri,  334.  Lansing  v. 
Birge,  2  Scam.  375.  Green  v.  Robinson,  3  How.  Miss.  105.  Quiett  v.  Boon,  5  Iredell,  9. 
Perley  v.  Broion,  12  N.  Hamp.  493.  Dyott  v.  Com.,  5  Whart.  67.  Archer  v.  Stamps,  4  Sm. 
&  Marsh.  352.  Neioall  v.  Hussey,  6  Shep.  249.  Glasscock  v.  Glasscock,  8  Missouri,  577. 
They  are  almost  universally  allowed,  where  they  do  not  surprise,  hinder,  or  delay  the 
opposite  party.  They  may  be  allowed  even  after  a  mis-trial.  Uester  v.  Haygood,  3  Hill,  S. 
C.  195.     Cayce  v.  Ragsdale,  2  Benn.  Miss.  Rep.  32. 

Every  court  of  record  has  power  over  its  own  records  and  proceedings,  as  long  as  they 
remain  incomplete,  and  until  final  judgment  is  rendered ;  and  until  that  time  it  is  the  estab- 
lished practice  in  such  courts  to  regard  all  actions,  whether  on  the  docket  of  the  existing  or 
a  former  terra,  as  within  the  jurisdiction  and  control  of  the  court.  Woodcock  v.  Parker,  35 
Maine,  (5  Red.)  138.  Killein  v.  Sistrunch,  7  Geo.  281.  Barefield\.  Bryan,  B,  Geo.  463. 
Bagley  v.  Wood,  12  Ired.  90.  Until  the  expiration  of  the  term,  the  court  has  authority  to 
amend,  reverse,  or  annul  its  judgments,  as  well  upon  material  as  immaterial  points,  upon 
the  merits  as  well  as  upon  matters  of  form ;  so  that  it  is  not  error  to  allow  a  judgment  to 
be  amended,  after  a  motion  to  set  it  aside  has  been  overruled  and  notice  of  appeal  entered. 
Wood  V.  Wheeler,  7  Texas,  13.  And  these  amendments  may  be  made  of  their  own  motion 
or  on  the  suggestion  of  any  parly  interested,  and  without  notice  to  any  one,  and  they  are 
the  exclusive  judges  of  the  necessity  and  propriety  of  amending.  Balch  v.  Shaw,  7 
Cush.  282. 

Where  there  is  no  statute  on  the  subject,  amendment  is  a  matter  of  mere  discretion  ;  and 
the  exercise  of  that  discretion  cannot  be  impeached  or  controlled  by  bill  of  exceptions  or 
error.  Wyman  v.  Dorr,  3  Greenl.  183.  Clapp  v.  Balch,  lb.  219.  ilandeville  v.  Wilson,  5 
Cranch,  15  Walden -v.  Craig,  d  Wheat,  biQ  Chirac  v.  Peinicker,  11  Wheat,  302.  Bailey  v. 
Musgrave,  2  S.  &  R.  29.  Benner  Y.Fry,  I  Bin.  369.  Stephens  y.  Watts,  2  Wash.  203.  llarine 
Insurance  Co.  v.  Hodgson,  6  Cranch,  206.  United  States  v.  Biiford,  3  Pet.  12.  3Ierriam  v. 
Langdon,  10  Conn.  460.  Brown  v.  WCune,  5  Sandf.  224.  Phincle  v.  Vaughan,  12  Barb.  215. 
Green  v.  Cole,  13  Ired.  421.  Bean  v.  Moore,  2  Chand.  Mis.  Rep.  44.  Austin  v.  Jordan,  5 
Texas,  130.  King  v.  The  Bank,  4  Eng.  185.  Wilson  v.  Johnson,  1  Green's  Iowa  Rep.  167. 
Saunders  v.  Smith,  3  Kelly,  121.  Graves  v.  Fulton,  7  How.  Miss.  592.  And  the  amend- 
ments may  be  made  at  any  stage  of  the  proceedings,  provided  the  opposite  party  be  not 
put  in  a  worse  situation.  Beard  v.  Young,  2  Overt,  54.  Cooper  v.  Jones,  4  Sandf.  S.  C. 
699.      Cariwright  v.  Chabert,  3  Texas,  261. 

Mere  clerical  errors  may  always  be  amended,  even  in  criminal  cases.  Sharffv,  Common- 
wealth, 2  Binn.  514.  Keans  v.  Rankin,  2  Bibb.  88.  Anon.  1  Gallis,  22.  State  v.  Seaborn, 
4  Dev.  319.  Vandyke  v.  Dare,  1  Bailey,  65.  State  v.  Williams,  2  M'Cord,  301.  Young  v. 
State,  6  Ham.  435.  Toomer  v.  Parkey,  1  Rep.  Const.  Ct.  323.  Jackson  v.  Anderson,  4:  Wend. 
474. 

It  may  be  stated,  as  a  general  rule,  that  any  mere  clerical  error  is  amendable.  Smith  y. 
The  Bank,  5  Ala.  26.  Mitchell  v.  Sparkes,  1  Scam,  122.  Galloway  v.  M^Geihens,  5  Ired.  12. 
Dearing  v.  Smith,  4  Ala.  432.  Jordan  v.  The  Bank,  5  lb.  284.  Hawley  v.  Bales,  19  Wend. 
632.  ^Tziem  V.  Po«s,  5  Blackf.  534.  TFoorfs  v.  G^rfm,  Wright,  503.  Scale  y.  Siu an,  d  V oxter, 
163.  Smith  v.  Strode,  lb.  446.  Furness  v.  Ellis,  2  Brock,  14.  Cherry  v.  Woodard,  1  Ired. 
438.  Otez  v.  Rodgers,  4  Ibid.  534.  M'Call  v.  Trevor,  4  Blackf.  496.  Johnson  v.  JVash,  5 
Washb.  Verm.  40.  Sheppard  v.  M'Clay,  12  Ala.  561.  Silner  v.  Butterfield,  2  Carter  Ind. 
Rep.  24.  Austin  v.  Jordan,  5  Texas,  130.  Thus  where  the  inferior  court  of  Georgia  had 
passed  an  order  requiring  the  clerk  to  issue  a  fi.  fa.  against  the  treasurer  of  a  county,  but  the 
clerk  failed  to  record  such  order,  it  was  held,  that  it  was  competent  for  the  inferior  court, 
after  the  fi.  fa.  has  been  issued,  to  place  the  order  on  the  minutes,  nunc  pro  tunc.  Foster  v. 
The  Justices,  <5'c.,  9  Geo.  185.  So  where  a  seal  was  omitted  from  a  citation,  the  clerk  of  the 
court  was  allowed  to  amend  it,  by  affixing  a  seal.  Cartturight  v.  Chabert,  3  Texas,  261.  It 
rests  in  the  discretion  of  the  court.  Clark  v.  Ilellen,  1  Ired.  421.  Purcell  v.  MFarland^ 
1  Ired.  34.  A  writ  of  error  may  be  amended  by  afiBxing  a  seal  to  it.  Loite  v.  Morris,  13 
Geo.  147.  The  People  v.  Steuben  Co.,  5  Wend.  103.  But  see  where  leave  was  refused,  Ilall 
V.  Jones,  9  Pick,  446.  Bailey  v.  Smith,  3  Fairf.  196.  Stayton  v.  Neivcomb,  1  Eng.  451.  And 
in  Maine  it  has  been  held,  that  an  original  writ  without  a  seal  cannot  be  amended.  Bailey 
V.  Sinith,  3  Fairf.  196.     Tibbetis  v.  Shaw,  19  Maine,  204.      Wethcrill  v.  Randall,  30  Id.  168. 

An  error  in  the  test  of  a  writ  may  be  amended.  Nash  v.  Brophy,  13  Metcf.  218  ;  Baker  v. 
Smith,  4  Yeates,  185;  Shoemaker  v.  Knorr,  1  DalL  197;  Ross  v.  Luther,  4  Cow.  158;  Z>e- 


OF  ENTERING  PROCESS  ON  TUE  ROLL.  161 

the  defendant  had  been  arrested  by  a  wrong  name,  after  actions  of  false 
imprisonment  had  been  brought  for  such  arrest. (n)  So,  an  amendment 
cannot  be  made  of  mesne  process,  by  adding  the  name  of  another  person 
as  plaintiff.(o)  A  writ  returnable  on  a  dies  non  is  altogether  void,  and 
cannot  be  amended  by  the  court.(jiO  And  the  courts,  we  have  seen,(^) 
will  not  in  general  allow  a  writ  to  be  amended,  to  the  prejudice  of  the 
bail. [a] 

Before  or  immediately  after  the  end  of  every  term,  the  sheriff  is  required, 
by  an  old  rule,(r)  to  deliver  and  return  into  court,  all  writs  of 
latitat^  *and  writs  thereupon  issuing  out  of  the  King's  Bench.  [  *1G2  ] 
And  where  a  writ  is  sued  out  to  avoid  the  statute  of  limitations, 
it  should  regularly  be  entered  on  a  roll,  and  docketed,  with  the  slieriff's 
return  thereto,  and  contbiuances  to  the  time  of  declaring.(aa)  The  writ 
should  be  entered  on  a  roll  of  that  term  wherein  it  was  returnable ;  and, 
in  the  King's  Bench,  it  is  entered  in  hxc  verba :  after  which  tlie  roll  pro- 
ceeds with  an  entry  of  the  plaintiff's  appearance,  the  sheriff's  return  of 
non  est  inventus^  and  continuances  of  the  process  from  term  to  terra,  by 
viceeomes  non  misit  breve,  to  the  term  of  the  declaration.    In  the  Common 


I 


(n)  Anon.  M.  41  Geo.  IIL  K.  B.  (o)  1  Chit.  Rep.  369. 

\p)  4  Barn.  &  Aid.  288,  but  see  6  Moore,  113.     3  Brod.  &  Bing.  25,  S.  C. 
(q)  Ante,  130.  (r)  R.  E.  6  Jac.  I.  K.  B. 

(aa)  2  Wms.  Saund.  5  Ed.  1,  (1).     8   Moore,  189.     Append.   Chap.  VIIL  J  48,  9,  50,  75, 
112,  and  see  Append.  Chap.  VL  I  28.     Chap.  XIV.  §  7. 

moss  V.  Camp,  5  How.  Miss.  516;  Converse  v.  The  Bank,  3  Shep.  431  ;  Ripley  v.  WarTtn,  2 
Pick.  592  ;  or,  in  the  ad  dammim,  Cragen  v.  Warfield,  13  Metcf.  218  ;  Foulkcs  v.  Webber,  8 
Humph.  530;  Converse  v.  The  Bank,  3  Shep.  431;  M'Lcllan  v.  Crifton,  6  Greenl.  307;  Clark 
V.  Herring,  5  Binn.  33;  Daniehon  v.  Andrnos,  1  Pick.  156;  Gregg  v.  Gier,  4  M'Lean,  208; 
Gertn  v.  Wright,  8  Sni.  &  Marsh.  360  ;  Clayton  v.  Liserman,  7  Ired.  92.  Bnt  where  it  in- 
volves the  question  of  jurisdiction  it  cannot ;  Hart  v.  Moloney,  2  New  Hamp.  322.  In  the  date 
of  the  writ  it  may ;  Anderson  v.  The  Bank,  5  Geo.  821 ;  Jackson  y.  Bowling,  5  Eng.  578  ;  M'Lar- 
ren  v.  Thruman,  3  lb.  313  ;  Harness  v.  M-'Cormick,  5  Pike,  C63 ;  or  in  the  names  of  the  par- 
ties, Wilcox  V.  Hawkins,  1  Hawks.  84 ;  Wilson  v.  King,  6  Yerg.  493  ;  Burnham  v.  Savings 
Bank,  5  New  Hamp.  573  ;  Sherman  v.  The  Conn.  Bridge,  11  Mass.  338 ;  Ballard  v.  The  Nan. 
Bank,  5  Id.  99 ;  Bank  v.  Lacey,  1  Monr.  7  ;  Anderson  v.  Brock,  3  Greenl.  243 ;  Kincaid  v. 
Howe,  10  Mass.  203  ;  M'Clurev.  Burton,  1  Car.  Law  Reps.  472;  Acquitta  v.  Cromwell,  1  Calf. 
191 ;  Heath  v.  Lent,  Id.  410  ;  3faztvell  v.  Haven,  8  Geo.  61 ;  Cauthorn  v.  Knight,  11  Ala.  579  ; 
Coburn  V.  Ware,  12  Shep.  Maine  Rep.  330  ;    Woodson  v.  Laiv,  7  Geo.  105 ;  Porter  v.  Goodman, 

I  Cow.  413;  Cox  v.  The  Macon  Railroad,  12  Geo.  270;  Winsor  v.  Lombard,  18  Pick.  57; 
Thayer  v.  Hollis,  3  Metcf.  309  ;  or  in  a  wrong  addition  or  place,  Gooch  v.  Bryant,  1  Shep.  386  ; 
Kimball  V.  Wilkins,  2  Cush.  555;  or  in  the  signature  of  the  clerk  or  his  deputy,  Whitury  v. 
Beebe,  7  Eng.  421;  Farmers'  Loan  v.  Carrcll,  2  Comst.  55C;  Fcpoon  v.  Jenkins,  Coleman's 
Cases,  55 ;  or  the  clerk's  omission  to  enter  defendant's  appearance,  Worrell  v.  3['Henry,  1 
Mann.  Mich.  Rep.  227  ;  or  irregularities  in  jury  process,  Livingston  v.  Rodgers,  1  Caines, 
587  ;  Beach  v.  The  Bank,  7  Cow.  509  ;  Whittier  v.  Varncy,  10  New  Hamp.  291  ;  or  in  the 
record.  The  State  v.  King,  5  Ired.  203  ;  Colby  v.  Moody,  1  App.  Maine  Rep.  Ill ;  in  re  Lime- 
rick Petitioners,  6  Shep.  183  ;  Simpson  v.  Bank,  2  Speers.  41  ;  Sivency  v.  Dclany,  1  Barr 
Peon.  320;  or  in  the  amount  of  the  judgment,  Walker  v.  Walker,  3  Harring.  502;  Dearing 
V.  Smith,  4  Ala.  432  ;  Hunt  v.  Grant,  19  Wend.  96;  or  in  the  name  of  the  county  in  which 
the  alleged  taking  in  replevin  is  laid,  Judson  v.  Adams,  8  Cush.  556  ;  or  in  the  name  of  the 
court,  Anthony  v.  Humphries,  G  Eng.  663  ;  or  of  the  state,  Harris  v.  Jtnks,  2  Scam.  475 ;  or 
mistake  in  the  date,  Parkman  v.  Crisby,  16  Pick.  297.  But  before  any  amendment  can  be 
allowed  there  must  be  something  to  amend  by.  Ellis  y.  L'wbanks,  3  Scam.  190;  Bird  v. 
Hood,  6  Black.  260 ;  Beck  v.  Williams,  5  lb.  374  ;  Jackson  v.  Fletcher,  1  Morris,  230  ;  Beall 
V.  Fox,  4  Geo.  403  ;  Nimmon  v.  Worthington,  1  Carter,  Ind.  Rep.  376  ;  Sickles  t.  Overton^  3 
Barr,  325;  Ellison  v.  The  State,  8  Ala.  273  ;  Fllis  v.  Brown,  1  Pike,  82  ;  Lake  v.  Morse,  11 
111.  587  ;    Wright  v.  Hale,  2  Cush.  486  ;  Smelt  v.    Wetherbce,  R.  M.  Charl.  537;  Dean  v.  Swift, 

II  Verm.  331.  See  post,  p.  696  ;  Vol.  II.  p.  922,  for  a  fuller  discussion  of  the  law  of  amend- 
ments and  statutes  of  jeofails. 

[a]  See  1  Broom's  Pract.,  p.  C52,  ct  seq. 


2(52  OF  THE  EVIDENCE  OF  PROCESS. 

Pleas  the  roll  merely  contains  a  recital  of  the  writ,  with  an  entry  of  the 
plaintiff's  appearance,  and  sheriff's  return,  &c.  And  when  the  proceed- 
in  o-s  are  thus  entered,  the  roll  is  docketed(J)  with  the  clerk  of  the  judg- 
ments in  the  King's  Bench,  or  prothonotaries  in  the  Common  Pleas,  and 
afterwards  filed  in  the  treasury  of  the  court.  In  replying  to  a  plea  of  the 
statute  of  limitations,  except  by  original,{c)  the  plaintiff  should  show  that 
the  cause  was  regularly  continued,  by  vicecomes  non  misit  breve,  from  the 
return  of  the  writ  to  the  time  of  declaring.(cf)  And  where  three  latitats 
were  sued  out  at  different  times,  for  the  same  cause  of  action,  and  the 
defendant  appeared  upon  the  second,  and  signed  a  7ion  pros  for  not  declar- 
ing, the  court  ordered  the  continuances  subsequently  entered  upon  the 
first,  to  be  struck  out ;  being  of  opinion,  that  the  first  latitat  was  made  an 
end  of  by  the  second ;  and  if  it  were  not  so,  the  practice  of  the  court  is 
clear  and  well  known,  that  the  continuances  must  be  by  alias  and  pluries, 
and  not  by  original  writs  of  latitat.[e)  But  the  continuances  need  not 
appear  in  pleading,  to  have  been  by  alias  and  pluries  writs :(/)  And  in 
general,  the  continuances  are  mere  matter  of  form,  and  may  be  entered 
at  any  time.{g)  It  has  even  been  holden,  that  they  may  be  made  by  the 
attorneys  in  their  chambers. (A)  And,  in  order  to  save  the  statute  of  limi- 
tations, it  is  sufficient  that  the  writ  be  sued  out,  and  the  return  indorsed 
upon  it,  in  time ;  it  not  being  necessary  that  the  writ  should  be  delivered 
out  of  the  sheriff's  office  as  returned.(z') 

In  penal  and  other  actions,  which  are  limited  by  statute  to  be  commenced 
within  a  certain  time,  it  is  necessary  for  the  plaintiff  to  produce  the  writ 
at  the  trial,  or  an  examined  copy  of  it,  if  filed,  in  order  to  show  that  the 
action  was  commenced  in  due  time,  unless  it  appear  to  have  been  so  com- 
menced, on  the  face  of  the  record  of  nisi  prius.     And,  in  the  Common 

Pleas,  the  production  of  a  capias  ad  respondendum,  sued  out  in 
[  *163  ]    time,  *is  deemed  suflScient  for  that  purpose. (a)    But  if  the  writ 

was  not  sued  out  till  after  the  time  prescribed,  though  by  rela- 
tion it  would  be  within  the  time,  the  plaintiff  will  be  nonsuited. (65)  If 
there  be  only  one  writ,  the  plaintiff  may  give  it  in  evidence,  without 
showing  it  to  be  returned.(cc)  And  if  the  declaration  appear,  on  the 
face  of  the  record,  to  have  been  delivered  or  filed  within  the  time 
allowed  by  the  rules  of  the  court  for  declaring,  it  is  sufficiently  con- 
nected with  the  writ  ;{dd)  if  not  other  evidence  is  necessary  to  connect 
them.  And,  in  the  Common  Pleas,  if  the  issue  be  made  up  of  a 
term  subsequent  to  that  allowed  by  the  rules  of  the  court  for  declar- 
ing, the  plaintiff  must  show  that  the  declaration  was  delivered  or  filed 

(b)  Append.  Chap.  VIII.  §  49,  113.  (c)  Sty.  Rep.  373,  401.  1  Wils.  167,  8. 

(d)  1  Show.  366.  2  Salk.  420,  S.  0.  1  Lutw.  260.  1  Ld.  Raym.  435,  S.  C,  and  see  3 
Durnf.  &  East,  662.     3  Bos.  &  Pul.  334,  5. 

(e)  Benson  v.  Kinff,  H.  25  Geo.  III.  K.  B. 

(/)  4  Barn.  &  Ores.  625.     7  Dowl.  &  Ryl.  25,  S.  C. 

Iff)  Bates,  qui  tarn  v.  Jenkinso?i,  E.  24  Geo.  III.  K.  B.  6  Durnf.  &  East,  257,  618,  S.  C, 
cited.  7  Durnf.  &  East,  618,  and  see  6  Moore,  525.  3  Brod.  &  Bing.  212,  S.  C.  1  Bing. 
324.     5  Barn.  &  Cres.  341.     8  Dowl.  &  Ryl.  270,  S.  C.     A7ite,  27,  {i). 

(h)  1  Sid.  53,  60,  and  see  2  Salk.  590.     2  Wms.  Saund.  5  Ed.  1,  (1). 

(t)  5  Barn.  &  Aid.  489,  and  see  6  Moore,  525.  3  Brod.  &  Bing.  212,  S.  C.  1  Bing.  324. 
5  Barn.  &  Cres.  341.     A7ite,  27,  (»). 

(a)  3  Wils.  455.  (bb)  Bui.  Ni.  Pri.  195. 

[cc)  7  Durnf.  &  East,  6.  2  Bos.  &  Pul.  157,  and  see  4  Taunt.  555.  6  Taunt.  142,  3.  1 
Marsh.  498,  9,  S.  C. 

(dd)  4  Taunt.  555,  and  see  6  Taunt.  144.     1  Marsh.  499,  500,  S.  C. 


OF  THE  PROCEEDINGS  ON  MESNE  PROCESS,  ETC.         163 

■within  that  time.(e)  Where  there  are  two  writs,  the  court  will  presume 
that  the  plaintiff  proceeded  on  the  last,  unless  he  can  connect  them,  by 
showing  the  first  to  be  returned :(/)  for  until  that  be  done,  the  court  is  not 
in  possession  of  the  cause,  so  as  to  award  an  alias  or  pliiries  for  bringing 
the  defendant  into  court. (^)  But  where  the  debt  was  paid  after  a  pluries 
writ  issued,  the  defendant  Avas  not  allowed  to  object  at  the  trial,  that  the 
latitat  was  not  returned;  for  at  any  rate,  if  the  plurics  writ  had  been  tho 
commencement  of  the  action,  it  was  only  an  irregularity,  which  though  a 
ground  for  applying  to  the  court  to  set  aside  the  proceedings,  yet  having 
been  once  waived,  could  not  afterwards  be  objected  to.{h)  AVhere  one  writ 
was  produced  at  the  trial,  and  three  declarations  against  the  principal  and 
his  bail,  to  show  that  certain  actions  had  been  brought  against  them,  and 
three  allocaturs  of  the  costs  taxed  in  the  same  actions  were  also  put  in  and 
proved;  this  was  deemed  sufficient  evidence  of  three  actions  having  been 
brought,  and  of  the  costs  having  been  taxed  therein. («) 

To  prove  the  issuing  of  a  writ,  in  an  action  against  an  attorney  for  prac- 
tising without  a  certificate,  it  is  not  sufficient  to  prove  the  prxcipe  by  the 
filacer's  book,  and  to  give  notice  to  the  party  to  produce  it ;  but  it  should 
also  be  shown  that,  after  the  return,  the  treasury  was  searched,  and  no 
such  writ  found,  and  that  it  was  in  the  party's  hands,  who  had  notice  to 
produce  it.(/i:) 


*C  II  AFTER    IX.  [*164  ] 

Of  the  Proceedings  on  mesne  Process,  against  the  Person  0/  the 
Defendant  ;  and  of  the  Service  of  a  Copt  of  Process,  not  Bail- 
able ;  and  the  Notice  tQ  appear  thereto. 

There  are  two  ways  of  proceeding  upon  mesne  process  against  the  per- 
son of  the  defendant,  whether  the  action  be  commenced  by  original  writ, 
bill  of  Middlesex  or  latitat^  capias  quare  clausurn  fregit,  &c.  or  attach- 
ment of  privilege;  first,  by  service  of  a  copy  of  the  process;  and  2dly  by 
arrest. 

Before  the  making  of  the  statute  12  Geo.  I.  c.  29,  a  defendant  might 
have  been  arrested,  upon  process  against  the  person,  in  civil  actions,  for  any 
sura  of  money  however  trifling,  or  to  any  amount  however  considerable, 
without  any  affidavit  of  its  being  due.  To  remedy  which,  it  was  enacted 
by  the  above  statute,  {amended  by  the  5  Geo.  II.  c.  27,  made  perpetual  by 
the  21  Geo.  II.  c.  3,  and  extended  to  inferior  courts  by  the  19  Geo.  III.  c. 
70,  §  2,)  that  "  in  all  cases,  where  the  cause  of  action  shall  not  amount  to 
the  sum  of  ten  pounds  or  upwards,  and,  the  plaintiff  or  plaintiffs  shall 
proceed  by  way  of  process  against  the  person,  he  she  or  they  shall  not 
arrest,  or  cause  to  be  arrested,  the  body  of  the  defendant  or  defendants  ;  but 
shall  serve  him  her  or  them  personally,  within  the  jurisdiction  of  the  court, 

(«)  6  Taunt.  141.     1  Marsh.  497,  S.  C. 

(/)  Bates,  qui  (am,  v.  Jenkinson,  E.  24  Geo.  III.  K.  B.,pcr  Buller,  J.  6  Durnf.  &  East,  617. 
2  Bos.  &  Pul.  157.     14  East,  491,  and  see  6  Taunt.  142,  3.     1  Marsh.  498,  9,  R.  C. 

(ij)  7  Mod.  3.     I  Lutw.  260.     1  Ld.  Raym.  435,  S.  C.     2  Ld.  Rajm.  883.     Willes,  255. 
(h)  7  East,  536.  (j)  11  Price,  235,  250,  270,  71. 

{k)  4  Esp.  Rep.  160. 


IQJ.  OF  THE  PKOCEEDINGS  ON  MESNE  PROCESS,  ETC. 

■with  a  copy  of  the  process ;  upon  which  shall  be  written  an  English  notice 
to  such  defendant,  of  the  intent  and  meaning  of  such  service ;  for  which 
no  fee  or  reward  shall  be  demanded  or  taken :  provided  nevertheless,  that 
in  particular  franchises  and  jurisdictions,  the  proper  officer  there  shall  ex- 
ecute such  process.  And  that  in  all  cases,  where  the  plaintiff's  cause  of 
action  shall  amount  to  the  sum  of  ten  pounds  or  upwards,  an  affidavit  shall 
be  made  and  filed  of  such  cause  of  action ;  which  affidavit  may  be  made  be- 
fore any  judge  or  commissioner  of  the  court  out  of  which  such  process 
shall  issue,  authorized  to  take  affidavits  in  such  court,  or  else  before  the 
officer  who  shall  issue  such  process,  or  his  deputy ;  which  oath  such  officer 
or  his  deputy  are  empowered  to  administer ;  and  for  such  affidavit  one 
shilling  shall  be  paid,  and  no  more ;  and  the  sum  or  sums  specified  in  such 
affidavit,  shall  be  indorsed  on  the  back  of  such  writ  or  process  :{a)  for  which 
sum  or  sums,  so  indorsed,  the  sheriff  or  other  officer,  to  whom  such  writ  or 

process  shall  be  directed,  shall  take  bail,  and  for  no  more."  This 
[  *165  ]  part  *of  the  statute,  we  have  seen, (aa)  is  merely  directory  to  the 

sherifi";  and  does  not  avoid  the  process,  where  the  sum  sworn  to 
is  not  indorsed  upon  it.  But  the  statute  is  express,  that  the  affidavit  must 
be  filed,  before  the  writ  issues. (&)  And  "  if  any  writ  or  process  shall  issue 
for  the  sum  of  ten  pounds  or  upwards,  and  no  affidavit  and  indorsement 
shall  be  made  as  aforesaid,  the  plaintiff  or  plaintiffs  shall  not  proceed  to 
arrest  the  body  of  the  defendant  or  defendants,  but  shall  proceed  in  like 
manner  as  is  directed  by  the  statute  12  Geo.  I.  c.  29,  in  cases  where  the 
cause  of  action  does  not  amount  to  the  sum  of  ten  pounds  or  upwards. "[a] 
And,  by  a  late  act  of  parliament,(c)  "no  person  shall  be  held  to  special 
bail,  upon  any  process  issuing  out  of  any  court  where  the  cause  of  action 
shall  not  have  originally  amounted  to  the  sum  of  tiventy  pounds  or  upwards, 
over  and  above  and  exclusive  of  any  costs,  charges  or  expenses  that  may 
have  been  incurred,  recovered  or  become  chargeable,  in  or  about  the  suing 
for  or  recovering  the  same,  or  any  part  thereof:  And  that  in  all  cases  where 
the  cause  of  action  shall  not  amount  to  twenty  pounds  or  upwards,  exclusive 
of  such  costs,  charges  and  expenses  as  aforesaid,  and  the  plaintiff  or  plaintiffs 
shall  proceed  by  the  way  of  process  against  the  person,  he  she  or  they  shall 
not  arrest,  or  cause  to  be  arrested,  the  body  of  the  defendant  or  defendants  ; 
but  shall  serve  him  her  or  them  personally,  within  the  jurisdiction  of  the 
court,  with  a  copy  of  the  process  and  proceedings  thereupon,  in  such  manner 
as  by  the  said  act  of  the  twelfth  year  of  the  reign  of  his  late  majesty  king 
Greorge  the  first  is  provided,  in  cases  where  the  cause  of  action  shall  not 
amount  to  ten  pounds  or  upwards,  in  any  superior  court,  or  to  forty  shil- 
lings or  upwards  in  any  inferior  court."  But  the  statute  51  Geo.  III.  c. 
124,  §  1,  did  not  avoid  the  plaintiff's  proceedings  and  judgment,  by  reason 
of  his  having  arrested  the  defendant  for  a  sum  exceeding  fifteen  pounds, 
when  he  recovered  less  than  that  sum.(cZ)  And  where  the  defendant  pleaded, 
the  plaintiff  had  sued  out  a  writ  against  him  by  a  wrong  name,  under 

(a)  Append.  Chap.  VII.  §  2.     Chap.  VIII.  I  22,  29,  55. 
[aa)  Ante,  159.  (6)  2  Ken.  374. 

(c)  7  &  8  Geo.  IV.  c.  71,  I  1,  and  see  stat.  51  Geo.  III.  c.  124,  §  1,  continued  by  57  Geo. 
III.  c.  101,  but  which  had  expired  before  the  passing  of  the  7  &  8  Geo.  IV.  c.  71. 
{d)  7  Taunt.  435.     1  Moore,  131,  S.  C. 

[a]  This  act  was  said  by  President  Shippcn  in  Taylor  y.  Rivers,  1  Dall.  159,  never  to  have 
been  in  force  in  Pennsylvania,  but  see  note  p.  180. 


OF  THE  PROCEEDINGS    ON  iMESNE  PROCESS,  ETC.  165 

vfKicli  he  was  arrested,  and  allowed  to  go  at  large  by  the  sheriff,  and  that  the 
writ  was  afterwards  altered,  by  inserting  the  real  name  of  the  defendant, 
under  which  he  was  again  arrested,  without  any  fresh  affidavit  of  debt,  as 
required  by  the  statute,  the  plea  was  holden  to  be  bad,  on  special  demurrer  : 
as  it  did  not  go  the  merits  of  the  action,  and,  if  true,  the  defendant  should 
either  have  pleaded  in  abatement,  or  moved  to  set  aside  the  proceedings  for 
irregularity.(c')  It  is  curious  to  remark  the  changes  which  the  law  of  arrest 
has  undergone  at  different  periods.  Anciently,  as  no  capiaa  lay,  an  arrest 
was  not  allowed,  except  in  action  of  trespass  vi  et  armis :  afterwards,  an 
arrest  was  introduced,  with  the  capias,  in  other  actions :  and  noAV,  by  the 
operation  of  the  before-mentioned  statutes,  an  arrest  cannot  be  had,  in  the 
only  action  wherein  it  was  formerly  allowed. 

*These  statutes,  however,  except  so  far  as  they  prohibit  the  hold-  [  *166  ] 
ing  to  bail  for  causes  of  action  under  Uvcnty  pounds,  arc  not  directly 
restrictive  of  any  authority  antecedently  exercised  by  the  courts,  in  respect 
to  the  holding  to  bail :  but  of  the  act  of  the  plaintiff  only.(a)  And  as  the 
practice  of  the  courts,  anterior  to  the  statutes,  appears  to  have  been,  to 
receive  affidavits  sworn  out  of  England,  and  verified  here,  for  the  purpose 
of  making  orders  thereupon,  to  hold  defendants  to  special  bail  :[h)  so  this 
practice,  not  being  inconsistent  Avith  the  letter  of  the  statute  12  Geo.  I.  c.  29, 
has  prevailed  ever  since :  and  accordingly  it  is  now  settled,  that  the  defend- 
ant may  be  arrested,  under  an  order  of  the  court  or  a  judge,  upon  an  affidavit 
made  out  of  England,  and  verified  here,  as  well  where  the  affidavit  is  made 
abroad,  out  of  his  majesty's  dominions,  before  some  magistrate  or  person  of 
competent  authority  there,  as  where  it  is  made  before  a  judge  or  other  per- 
son authorized  to  take  affidavits  in  Ireland  and  Scotland.{e)  And  on  similar 
grounds,  though  the  plaintiff  is  prohibited  by  the  statutes  from  arresting  the 
defendant  upon  his  own  affidavit  only,  in  an  action  for  general  damages,  as  in 
assumpsit  or  covenant  to  indemnify,  kc.  or  in  an  action  for  a  tort  or  tres- 
pass, yet  the  court  or  a  judge  is  not  restrained  thereby,  but  may  make  a 
special  order  upon  such  affidavit,  for  holding  the  defendant  to  special  bail.(f?) 
In  trespass  for  the  mesne  profits,  after  a  recovery  in  ejectment,  the  action  is 
bailable  or  not,  at  the  discretion  of  the  court  or  a  judge :  and  when  an  order 
fur  bail  is  made,  the  recognizance  is  usually  taken  in  tivo  years  value  of  the 
premises ;  but  this  is  also  discretionary.(e6') 

There  are  three  cases  provided  for  by  these  statutes ;  first,  where  the  cause 
of  action  does  not  amount  to  twenty  pounds  ;  secondly,  where  it  amounts  to 
<2fe?i<y  pounds  or  upwards,  and  no  affidavit  is  made  thereof:  thirdly,  where 
it  amounts  to  twenty  pounds  or  upwards,  and  there  is  an  affidavit  made  and 
filed  of  the  cause  of  action. (/)  In  the  two  first  cases,  the  process  against 
the  person  is  not  bailable  ;{g)  and  the  defendant  cannot  be  arrested  thereon, 
but  must  be  personally  served  with  a  copy  of  it ;  on  which  there  must  be 

(e)  5  Moore,  168.  {a)  8  East,  370. 

(6)  8  Mod.  322.     Harnes,  466,  but  see  2  Str.  1209.     2  Bur.  655. 

(c)  8  East,  364.  And  see  the  statute  55  Geo.  III.  c.  1 57,  for  empowering  the  courts  of  law 
and  equity  in  Ireland,  to  prant  commissions  for  taking  affidavits  in  all  parts  of  Great  Jirilain  ; 
Bovara  v.  Bescsti,  M.  24  Geo.  III.  K.  R.  Broivn  v.  I'hrpof,  II.  24  Geo.  III.  K.  B.  Voght  v. 
FAgin,  H.  38  Geo.  III.  K.  B.  1  Chit.  Rep.  403.  4  Barn,  k  Cres.  886,  7  Dowl.  &  Ryl.  478, 
S   C 

'  (d)  Post,  172.  {ee)  Barnes,  85.     1  Sel.  Pr.  2  Ed.  36.     Ad.  Eject.  2  Ed.  329. 

(/)  Prac.  Reg.  350. 

(g)  This  is  frequently  called  common  or  serviceable  process  ;  though  the  term  common  seems 
more  properly  confined  to  the  bill  of  Middlesex  or  latitat,  &c.,  without  the  clause  of  ac 
etiam. 


2(36  OF  SERVICE  OF  PROCESS. 

written  an  English  notice,  of  the  intent  and  meaning  of  such  service  ;(h) 
which  in  effect  reduces  it  to  a  mere  summons. {i)     This  notice  (which  is 
only  necessary  on  the  copy  of  the  process  served,  and  need  not 
[  *167  ]  be  on  the  writ  itself,)(Z:;)  is  required  by  the  statutes,  where  the  cause 
of  action  amounts  to  twenty  pounds  or  upwards,  and  no  aflBdavit  *is 
made  thereof,  as  well  as  where  it  does  not  amount  to  twenty  pounds. (a) 
And  it  must  be  directed  to  the  defendant  :{h)  for  if  his  name  be  not  prefixed 
thereto,  the  process  is  irregular,  and  may  be  quashed  on  motion.     The  notice 
should,  it  seems,  be  directed  to   the  defendant  by  his  christian,  as  well 
as  surname  ;{e)  and  require  the  defendant  to  appear  at  the  return  of  the  pro- 
cess :(c?)  and  where  the  process  is  returnable  on  a  general  return  day,  as  in 
the  Common  Pleas,(e)  or  King's  Bench  by  original,  (/)  or  on  a  quo  minus 
in  the  Exchequer,(^)  it  should  require  him  to  appear  on  the  return  day, 
though  it  happen  on  a  Su7iday,{hh)  and  not  on  the  quarto  die  post  of  the 
return  of  the  process.     In  the  King's  Bench,  a  notice  requiring  the  defend- 
ant to  appear  on  Friday,  instead  of  Saturday,  the  sixth  of  Novemher,  is 
irregular. (u")    And  so,  in  the  Common  Pleas,  where  a  writ  was  tested  on  the 
twelfth  of  February,  returnable  in  fifteen  days  of  Easter,  being  the  fifth 
of  April,  and  in  the  notice  to  appear,  the  return  day  was  stated  to  be  the 
fifth  of  February,  instead  of  the  fifth  of  April,  the  court  held  this  to  be 
irregular,  and  set  aside  the  proceedings. (M)   But  it  is  not'necessary  that  the 
year  should  be  stated  in  the  notice,  in  words  at  length :  it  being  sufficient  to 
set  out  in  figures. (Z)     If  there  be  no  notice  to  appear,(??i)  when  necessary, 
or  the  notice  be  not  properly  directed,(w)  &c.  the  defendant  may  move  the 
court  to  set  aside  the  proceedings.    But  any  trifling  informality  in  the  notice 
as  setting  down  the  day  of  the  month  on  which  the  defendant  is  to  appear, 
without  saying  instant,  next,  or  specifying  the  year,  or  mentioning  an 
impossible  year,  will  not  invalidate  it.(o) 

The  copy  of  process,  to  be  served  on  the  defendant,[A]  must  be  a  copy 
of  such  process  as  he  might  have  been  arrested  upon,  before  the  statute  12 
Geo.  I.  c.  29 ;  and  therefore,  where  the  proceedings  are  by  original  he 
should  be  served  with  a  copy  of  the  capias,  and  not  of  the  original  writ 

(h)  Append.  Chap.  IX.  §  1,  2,  3.  (i)  Cowp.  455.  (k)  9  East,  528,  9. 

{a)  1  Durnf.  &  East,  337.  Barnes,  404.  Pr.  Reg.  349.  Cas.  Pr.  C.  P.  100,  143.  I  Sel. 
Pr.  2  Ed.  74,  5,  but  see  1  Wils.  22,  co7itra. 

(b)  Kelynge,  131.  1  Wils.  104.  Doe  v.  Johnson  and  another,  E.  24  Geo.  III.  K.  B.  Barnes, 
409.  1  H.  Blac.  100.  2  Bos.  &  Pul.  38,  and  see  1  Chit.  Rep.  500.  Id.  501,  in  notis  ;  but 
see  2  Chit.  Rep.  355,  6. 

(c) V.  Snow,  E.  57  Geo.  III.  K.  B.    1  Chit.  Rep.  398,  and  see  1  Chit.  Rep.  500.    Id. 

501,  in  notis;  but  see  2  Chit.  Rep.  355,  6. 

{d) V.  Hanson,  T.  42  Geo.  III.  K.  B.     Barnes,  293,  4.     2   Bos.  &  Pul.  340.     2 

Price,  9. 

{fi)  Barnes,  293.  Cas.  Pr.  C.  P.  92,  S.  C.  2  Bos.  &  Pul.  340,  but  see  1  H.  Blac.  630,  semb. 
contra. 

(/)  3  Bur.  1600.  {g)  1  Younge  &  J.  9. 

\hh)  Cas.  Pr.  C.  P.  92,  97,  8.  Pr.  Reg.  346,  7.  Barnes,  293,  4,  S.  C.  Notice,  H.  7  Geo.  II 
C.  P.     3  Bur.  1600. 

{ii)  1  Chit.  Rep.  615.  (M)  2  Moore,  214.     8  Taunt.  253,  S.  C. 

{l)  4  Maule  &  Sel.  335,j3cr  Bayley,  J.  K.  B.  1  Marsh.  550,  (a),  577.  6  Taunt.  333,  C.  P. 
1  Chit.  Rep.  385,  in  notis;  2  Chit.  Rep.  356,  but  see  id.  238.  1  Maule  &  Sel.  119.  5  Taunt. 
651.     1  Marsh.  272,  S.  0.     6  Taunt.  6.     1  Marsh.  403,  S.  C,  contra. 

(m)  Cas.  Pr.  C.  P.  100.     2  Str.  1072.     9  East,  528. 

[n)  Kelynge,  131.  1  Wils.  104.  Barnes,  409.  1  H.  Blac.  100.  2  Bos.  &  Pul.  38.  2 
Price,  9.     1  Chit.  Rep.  500. 

(o)  2  Str.  1233.     Barnes,  425.     Per  Cur.  E.  21  Geo.  III.  K.  B.     1  Taunt.  424.     2  Barn.  & 

[a]  See  1  Archb.  Pract.,  p.  155,  8  Ed. 


OF  SERVICE  OF  PROCESS.  167 

of  summons  or  attachment  :{p)  and  a  complete  copy  of  the 
rvhole  process  must  *be  served. (aa)  But  where  the  defendant  is  [  *1G8  ] 
in  a  county  paLatine,  he  shouhl  be  served  with  a  copy  of  the  process 
issuing  out  of  the  superior  court,  and  not  of  the  mandate,  from  the  officer 
to  whom  it  is  directed. (^)  And,  in  the  Exchequer,  a  variance  in  the  body 
of  the  copy  of  process,  from  the  writ  itself,  is  fatal,  and  subversive  of  the 
process,  and  subsequent  proceedings. (c)  The  copy  of  the  process  may  be 
served  by  the  sherift"  or  his  officers,  (except  in  particular  franchises,  having 
the  return  of  writs,)  or  by  any  one  else,((?)  provided  he  be  able  to  examine 
the  copy  with  the  original,  so  as  to  swear  (if  necessary,)  to  the  service.  In 
particular  franchises  and  jurisdictions,  the  proper  officer  there  should  exe- 
cute the  process. (c)  The  court  "svill  not  allow  the  copy  of  a  Avrit  to  be 
amended,  so  as  to  make  the  service  good.(/)[A] 

Formerly,  a  copy  of  the  process  must  have  been  served  on  the  defend- 
ant before  the  return  day ;((/)  but  now  it  is  holden,  that  service  at  any 
time,  even  after  the  rising  of  the  court,  07i  the  return  day,  is  suffici- 
ent.(/i)[B]  And  it  may  be  served  at  any  hour,  however  late,  at  night; 
process  not  being  within  the  rule  of  court  as  to  service  of  notices,  &c., 
before  toi  o'clock. (t)  In  the  Exchequer,  we  hjive  seen,(/c)  service  of  a 
writ  on  Candlemas  day,  is  deemed  good  service.  In  the  King's  Bench,  a 
bill  of  Middlesex  must  not  be  served  in  London,  or  elsewhere  out  of  the 
county  of  Middlesex  ;{l)  nor  whilst  the  defendant  is  attending  his  cause 
at  the  sittings  :(7n)  And  a  latitat  cannot  regularly  be  served  in  any  other 
county  than  that  to  the  sheriff  of  which  it  is  directed. (/?)  So,  in  the  Com- 
mon Pleas,  a  capias  directed  into  one  county,  cannot  be  regularly  served 
in  another,  although  it  happen  that  the  same  officer  is  filacer  for  both 
counties  :(o)  And  a  capias  directed  into  Kent,  cannot  be  well  served  in 
the  Cinque  ports, [o)  or  city  of  Canterbury  \pip)  But  where  there  is  any 
dispute  as  to  the  boundaries  of  the  county,  the  courts  will  not  determine 
it  on  motion  :[q)  And,  in  order  to  set  aside  the  service  of  a  Avrit  in  a  wrong 
county,  there  must  be  a  positive  affidavit,  in  the  King's  Bench,  showing 
that  there  could  be  no  dispute  as  to  the  boundaries. (r)  On  serv- 
ing the  copy,  it  is  not  necessary,  though  usual,  to  show  *the  ori-    [  *1C9  ] 

{p)  Barnes,  406,  410. 

(rto)  Pr.  Reg.  354.     Barnes,  405,  S.  C. 

(66)  2  Barnard,  K.  B.  318,  327,  337,  398.     Pr.  Reg.  344.     Barnes,  406. 

(c)  1  Price,  245,  but  see  7  Moore,  359.     1  Bing.  65,  S.  C. 

(d)  Pr.  Reg.  345.    Gas.  Pr.  C.  P.  34,  S.  C. 

(e)  Stat.  5  Geo.  II.  c.  27,  §  3,  but  see  Gas.  Pr.  G.  P.  96.    Pr.  Reg.  345.    Barnes,  404,  S.  C. 
(/)  Sutherland  v.  Tubbs,  M.  55  Geo.  III.  K.  B.     1  Chit.  Rep.  320,  (a). 

[ff]  Barnes,  415,  424. 

(/()  2  Bur.  812.  1  Durnf.  &  East,  192.  Pr.  Reg.  352.  2  Wils.  372.  1  H.  Blac.  222.  3 
Taunt.  404.     8  Taunt..  127.     1  Moore,  573,  S.  C.     1  Dowl.  &  Ryl.  172. 

(t)  2  Ghit.  Rep.  357.     1  Dowl.  &  Ryl.  172,  K.  B.     7  Moore,  358.     1  Bing.  66,  S.  C.  C.  P. 

(k)  Ante,  56. 

{I)  Doug.  384.    1  Durnf.  &  East,  187.    1  Esp.  Rep.  42.  (m)  2  Str.  1094. 

(n)  4  Maulc  &  Sel.  412.  1  Chit.  Rep.  15,  (c),  333,  (a),  but  see  Doug.  384.  1  Durnf.  &  East, 
187.    6  Durnf.  &  East,  74.    8  Durnf.  &  East,  235,  semb.  contra. 

(o)  7  Taunt.  233.  2  Marsh.  550,  and  see  2  New  Rep.  G.  P.  167.  1  Marsh.  9.  1  Moore,  299. 
1  Ghit.  Rep.  15,  (c).  (pp)  11  Price,  122. 

(g)  1  Wils.  77.  Doug.  384.  1  Durnf.  &  East,  187.  4  Maule  &  Sel.  412,  and  see  11  Price,  122. 

(r)  1  Chit.  Rep.  14,  and  see  id.  333.    3  Barn.  &  Cres.  158.    4  Dowl.  &  Ryl.  739,  S.  C. 

[a]  See  1  Troub.  &  Hal.  Pract.  230,  3d  Ed. 

[b]  See  Ileberton  v.  Stockton,  2  Miles,  164.  Casher  y.Wisnor,  2  Browne,  245.  Boyd  v.  Ser- 
rill,  4  Pena.  Law  Jour.  114. 


169 


OF  SERVICE  OF  PROCESS. 


o-inal  proccss,(rta)  unless  demanded  :(hh)  But  if  a  defendant,  at  the 
time  he  is  served  with  a  copy  of  process,  in  the  King's  Bench,  demand  to 
see  the  ori,o-inal,  and  is  refused,  the  service  is  irregular.((7c)  And  where 
the  defendant  was  served  with  a  copy  of  a  capias,  and,  a  quarter  of  an 
hour  afterwards,  demanded  to  see  the  original,  which  was  refused  by  the 
officer,  the  court  of  Common  Pleas  set  aside  the  service  and  subsequent 
proceedings. ((fc?)  If  the  defendant  refuse  to  accept  a  copy  of  process,  it 
may  be  left  in  his  house  •,{ee)  or,  if  he  lock  himself  in,  it  may  be  put 
through  the  crevice  of  his  door;(^)  or,  in  the  Common  Pleas,  it  seems 
that  if  he  keep  out  of  the  way,  to  avoid  being  served,  it  may  be  sent  him 
in  a  letter  by  the  post  :{g)  But  sending  process  by  the  post,  in  a  letter 
which  the  defendant  refuses  to  receive,  is  not  good  service ;  although  the 
refusal  may  have  been  wilful,  and  accompanied  with  a  long  avoidance  of 
service. (7i)  And  where  the  defendant,  on  being  served  with  a  copy  of  pro- 
cess by  the  name  of  John,  observed  his  name  was  Nicholas,  upon  which 
the  person  who  served  it  was  about  to  alter  the  name,  when  the  defendant 
said,  "never  mind;  I  am  the  person,  and  will  take  care  of  it;"  the  court 
notwithstanding  held,  that  the  service  was  irregular,  and  set  it  aside,  but 
without  costs,  (i)  If  a  latitat  has  been  served  by  mistake  on  a  wrong  per- 
son, the  right  person  may  afterwards  be  served  with  an  alias  capias  issued 
thereon.  (A;) 

In  a  joint  action  against  two  or  more  defendants,  each  of  them  must  be 
served  with  a  copy  of  the  process. (^)  But,  in  an  action  against  husband 
and  wife,  it  is  deemed  sufficient  to  serve  the  husband  only.(m)  Whenever 
the  defendant  would  take  advantage  of  a  mistake  in  the  copy  of  process, 
or  notice  to  appear  thereto,  he  must  produce  the  copy  served,  and  swear 
that  he  was  served  with  no  other.(w)  And  where  there  is  no  irregularity 
in  the  notice  to  appear  to,  or  service  of  process,  the  rule,  we  have  seen,(o) 
should  be  to  set  aside  such  service,  and  not  the  process  itself. 

If,  upon  the  service,  the  defendant  speak  contemptuous  words  of  the 
court,  or  its  process,  he  is  liable  to  an  attachment.  And  where  the  words 
are  spoken  of  the  court,  the  attachment  issues  in  the  first  instance  ;(2?)  for 
it  would  be  to  no  purpose  to  grant  a  rule  to  show  cause,  which  would  pro- 
bably expose  the  court  to  further  insult.(5')  But  the  court  will  not  grant 
an  attachment,  for  violent  or  contemptuous  behaviour,  after  service  of  the 
process. (r)  It  has  been  doubted,  whether,  when  contemptuous  words  are 
sworn  to  by  one  person  only,  the  rule  should  be  absolute,  or  only 
[  *170  ]  to  show  *cause  ;(a)  the  rule  in  Qhancei'y  requiring  two  affidavits, 
to  deprive  the  party  of  the  benefit  of  showing  cause ;  and  in  the 
King's  Bench,  the  rule  is  only  to  show  cause,  when  the  words  are  spoken 
of  its  process.{h) 

(aa)  2  Str.  877.    Barnes,  302,  422.  (bh)  Cas.  temp.  Hardw.  138. 

{cc)  2  Barn.  &  Ores.  761.    4  Dowl.  &  Ryl.  317,  S.  C.  {dd)  5  Moore,  162. 

[ec)  Barnes,  278.  Bates,  qui  tarn,  v.  31addison,  M.  23  Geo.  III.  K.  B.,  and  see  7  Dowl.  & 
Ryl.  233. 

(jf)  Cas.Pr.  C.  P.  103.    Pr.  Reg.  354.   Barnes,  405,  S.  C,  and  see  Barnes,  42. 

(y)  5  Taunt.  186.  1  Marsh,  8,  S.  C.  (h)  3  Bing.  443. 

(i)  1  Chit.  Rep.  319. 

{k)  2  Barn.  &  Cres.  95.  3  Dowl.  &  Ryl.  254,  S.  C.         (l)  Pr.  Reg.  351. 

{m)  Barnes,  406,  412.    Pr.  Reg.  351,  S.  G.  (n)  Barnes,  298,  and  see  1  Ken.  374. 

(o)  Ante,  161. 

[p)  G  Mod.  43.    1  Salk.  84.    1  Str.  185.    Say.  Rep.  47,  R.  T.    17  Geo.  III.  K.  B. 

(g)  1  Salk.  84.  (r)  1  Brod.  &  Bing.  24.  4  Moore,  147.  (a)  2  Str.  10G8. 

(6)  Say.  Rep.  114.  In  the  case  of  Adamson  v.  Gibson,  H.  27  Geo.  III.  K.  B.,  an  attachment 
Aid.  642.     1  Chit.  Rep.  384,  S.  C.     Id.  615,  {a). 


OF  THE  ARREST,  UPON  BAILABLE  PROCESS.  *17l 

•CHAPTER   X. 

0/  the  Arrest,  upon  bailable  process. 

In  treating  of  the  law  of  arrest,  it  is  propose<l  to  consider,  first,  for  what 
cause  of  action  it  is  allowed  ;  2dlj,  the  affidavit  to  hold  to  bail ;  3dly, 
what  persons  may,  or  may  not  be  arrested  ;  and  lastly,  by  whom ;  and 
under  what  authority,  when,  where,  and  in  what  manner  the  arrest  may 
be  made. 

When  the  cause  of  action  amounts  to  twenty  pounds  or  upwards,  and 
an  affidavit  thereof  is  made  and  filed  according  to  the  statutes,  the  process 
is  bailable  ;  and  the  defendant  may  in  general  be  arrested,  and  holden  to 
special  bail.  But  where  the  plaintiff,  having  a  debt  due  to  him  under  an 
arrestable  sum,  procured  a  promissory  note  to  be  indorsed  to  him  by  another 
creditor,  for  the  purpose  of  holding  the  defendant  to  special  bail,  the  court, 
considering  this  as  a  practice  to  evade  the  statute,  discharged  the  defend- 
ant out  of  custody,  on  filing  common  bail. (a)  And,  by  the  statute  7  &  8 
Geo.  IV.  c.  71,(6)  "  no  sheriff  or  other  officer,  within  the  principality  of 
Wales^  or  the  counties  palatine  of  Chester,  Lancaster  or  Durham,  shall, 
upon  any  mesne  process  issuing  out  of  his  majesty's  courts  of  record  at 
Westminster,  arrest  or  hold  any  person  to  special  bail,  unless  such  process 
shall  be  duly  marked  and  indorsed  for  bail,  in  a  sum  not  less  than  Jifty 
pounds." 

With  respect  to  the  cause  of  action,  it  ^s  a  rule,  that  where  there  is  a 
certain  debt  to  the  amount  of  tiventy  pounds,  or  damages  to  that  amount 
which  may  be  reduced  to  a  certainty,  as  in  assumpsit  or  covenant  for  the 
payment  of  money,(«?)  the  defendant  may  be  arrested,  as  a  matter  of 
course,  on  an  affidavit  shortly  stating  the  cause  of  action.  And  he  might 
formerly  have  been  arrested  in  like  manner,  in  an  action  of  trover{d)  or 
detinue ;  for  these  were  considered  as  being  more  properly  actions  of 
property,  than  of  tort.  But  where  the  defendant,  being  a  custom-house 
officer,  was  arrested  in  an  action  of  trover,  brought  against  him  for  seizing 
goods,  and  it  appeared  by  affidavit  that  there  was  a  reasonable  foundation 
for  the  seizure,  that  the  goods  were  deposited  in  the  king's  ware- 
house, and  that  the  *defendant  had  used  due  diligence  in  pro-  [  *172  ] 
ceeding  towards  a  condemnation  in  the  Exchequer,  the  court 
ordered  common  bail  to  be  accepted. («a)  And  by  a  late  rule,(6J)  in  all 
the  courts,  "  no  person  can  be  held  to  special  bail,  in  an  action  of  trover 

was  moved  for  against  the  defendant's  wife  and  daughter,  for  treating  the  process  of  the 
court  wilh  contempt,  by  throwing  it  into  the  street,  &c.,  and  the  court  said,  that  on  a  return 
hj  the  sheriff,  tlie  rule  for  an  attachment  was  absolute  in  the  first  instance;  but  on  afBda- 
vits,  the  partv  must  have  an  opportunity  of  answering. 

(a)  1  Ken.  371.  (6)  g  7,  and  see  stat.  11,  12  "W.  IIL  c.  9,  §  2.    2Str.  1102. 

(c)  Barnes,  79,  80,  108.  But  one  who  became  surety  for  the  defendant,  before  his  dis- 
charge under  an  insolvent  debtor's  act,  and  was  afterwards  obliged  to  give  a  new  security 
by  bond  and  warrant  of  attorney,  &c.,  for  the  old  debt,  cannot  hold  the  defendant  to  bail 
thereon  by  affidavit,  as  for  so  much  money  paid  for  his  use.     3  East,  169. 

{d)6  Mod.  14.  Barnes,  80.  2  Str.  1192.  1  Wils.  23,  S.C.  1  Wils.  335.  Say.  Rep.  53,  S.C, 
and  see  Cowp.  529.     Append.  Chap.  X.  g  82,  &c. 

(aa)  2  Blac.  Rep.  1018.   1  Wils.  335.  Say.  Rep.  53,  S.  C.,semb.  contra. 

(W)  R.  H.  48  Geo.  III.  K.  B.  C.  P.,  and  Excheq.  9  East,  325.  1  Taunt.  203.  Man.  Ex.  Ap- 
pend. 225.    8  Price,  507.    Append.  Chap.  X.  2  85. 


172 


FOR  WHAT  CAUSE  OF  ACTION 


or  detinue  -without  an  order  made  for  that  purpose  by  the  Lord  Chief 
Justice,  or  one  of  the  judges." 

On  the  other  hand,  where  the  damages  are  altogether  uncertain,{cc)  as 
in  assumpsit  or  covenant  to  indemnify,  &c.,  or  in  actions  for  a  tort  or 
trespass,{d)  there  can  be  no  arrest,  without  a  special  order  of  the  court  or 
a  judge,(e)  on  a  full  affidavit  of  the  circumstances ;(/)  for  it  would  be 
unreasonable  that  the  defendant  should  be  arrested,  for  what  damages  the 
plaintiff  fancies  he  has  sustained,  and  is  pleased  to  swear  to.  And  it  is 
not  usual  to  grant  a  special  order,  except  where  there  has  been  an 
outrageous  battery  or  mayhem,(^)  or  the  defendant  is  about  to  quit  the 
kingdom.  An  affidavit  stating  that  "  the  defendant  was  indebted  to  the 
plaintiff  in  3000/.  and  upwards,  being  the  value  of  certain  bars  of  silver, 
delivered  by  the  plaintiff  or  on  his  account  to  the  defendant,  to  be  by  him 
carried  and  delivered,  and  by  the  defendant  undertaken  to  be  carried  and 
delivered,  to  E.  B.  at  Gfottenburgh  in  Sweden^  for  the  use  and  on  account 
of  the  plaintiff,  but  which  bars  of  silver,  or  any  part  thereof,  the  defendant 
had  not  carried  or  delivered  to  the  said  E.  B.  at  G.  aforesaid,  or  to  any 
other  person,  or  at  any  other  place,  for  the  use  of  the  plaintiff,"  was 
deemed  sufficient  to  hold  the  defendant  to  special  bail,  on  a  judge's  order; 
although  it  was  objected,  that  it  did  not  state  any  debt  owing  from  the 
defendant  to  the  plaintiff,  and  that  there  was  no  averment  that  the  plaintiff 
had  any  property  in  the  silver,  or  was  damnified  by  the  non-delivery  of 
it.(A) 

There  are  also  some  cases,  where  the  defendant  cannot  be  arrested, 
though  the  action  be  brought  for  a  sum  certain  ;  and  others,  where  he 
cannot  be  arrested  for  the  whole  of  the  legal  debt,  but  only  for  so  much 
as  is  equitahly  due.  Thus,  in  an  action  of  debt  on  a  penal  statute, (z) 
the  defendant  cannot  be  arrested,  though  it  be  for  a  sum  certain ;  as  it 
is  a  maxim,  that  every  man  shall  be  presumed  innocent  of  an  offence, 
till  he  be  found  guilty :    But  where  an  action  is  brought  on  a  remedial 

statute,  as  for  money  won  at  play,(Z;)  or  on  a  statute  which 
[  *173  ]  expressly  authorises  an  arrest,  as  for  exporting  wool,(Z)  double 

value  for  holding  over,(??i)  having  *unsealed  wrought  silks,(a) 
or  insuring  lottery  tickets,(6)  &c.,  the  defendant  may  be  arrested.  So, 
in  an  action  of  debt  upon  a  recognizance  of  bail,  the  defendant  cannot 
be  arrested  :{c)  for  besides  that  the  sufficiency  of  the  bail  must  have 
been  proved,  or  admitted,  previous  to  their  being  allowed,  there  are 
many  things  to  be  inquired  into,  which  may  show  them  not  liable  ;(c)  and 
it  is  commonly  said,  that  if  the  defendant  were  arrested  in  such  an  action, 
there  would  be  bail  in  infinitum.     And  for  similar  reasons,  an  arrest  is 

{cc)  Barnes,  79,  80,  108,  9. 

\d)  Id.Gl.   Pr.  Keg.  63,  S.  0.    Barnes,  76.   Pr.  Reg.  66.    Cas.  Pr.  C.  P.  149,  S.  C. 

(e)  Append.  Chap.  X.  §  87.  (/)  Id.  §  86,  88. 

[g]  R.  M.  1654,  I  9,  K.  B.    R.  M.  1654,  |  12,  C.  P. 

(A)  2  East,  453,  but  see  2  Bos.  &  Pul.  282.    1  Chit.  Rep,  168,  (a). 

(i)  Yelv.  53.    Gilb.  C.  P.  37.    Barnes,  80. 

[k)  9  Ann,  c.  14.  2  Str.  1079.  7  Durnf.  &  East,  259,  but  see  2  Wils.  67.  The  statute  is 
remedial,  where  the  action  is  brought  by  the  party  injured:  but  penal,  where  brought  by  a 
common  informer.  Per  Nares,  J.  2  Blac.  Rep.  1227.  And  for  the  form  of  an  affidavit  to 
hold  to  bail  on  this  statute,  see  Append.  Chap.  X.  g  80. 

{I)  10.  11  W.  III.  c.  10, 1  20.    Com.  Rep.  75. 

\m)  4  Geo.  II.  c.  28,  §1.5  Durnf.  &  East,  364. 

(a)  26  Geo.  II.  c.  21,  ?  8.     3  Bur.  1569. 

\h)  27  Geo.  III.  c.  1,  I  2.    Append.  Chap.  X.  §  81. 

(c)  Per  Buller,  J.  M.  28  Geo.  III.  K.  B. 


AN  ARREST  IS  ALLOWED.  173 

not  permitted  in  an  action  of  clelt  upon  a  hail{dd)  or  replevin{ee)  bond ; 
whether  the  action  be  brouglit  in  tiie  name  of  the  shcriff,(^)  or  his 
assignee.  But,  after  judgment  has  been  obtained  against  the  bail  in  such 
action,  the  defendant  may  be  arrested  in  an  action  on  the  judgment. (^^) 
A  defendant  cannot  be  arrested,  on  an  affidavit  stating  him  to  be  indebted  to 
the  phiintilf  for  goods  bargained  and  soW,(/i)  or,  for  goods  8old,{i)  without 
saying  that  they  were  delivered:  for  there  is  no  reason  why  the  plaintiff 
should  have  the  security  of  the  defendant's  body  under  arrest,  and  also 
retain  the  security  of  the  goods  in  his  own  hands. (/c)  And  the  court  of 
Common  Pleas  will  not  permit  a  defendant  to  be  arrested,  in  an  action 
founded  on  the  prothonotary's  allocatur,  for  costs ;(?)  nor  on  a  policy  of 
assurance,  for  a  total  or  partial  loss,  without  an  adjustment,  or  express 
promise  to  pay  the  amount. (7w)  But  a  defendant  may  be  arrested  on  a 
guaranty,  or  undertaking  to  be  answerable  to  a  certain  amount,  for  goods 
sold  to  a  third  person,  in  the  event  of  his  failing  to  pay  for  them.(?i) 

A  party  cannot  be  arrested  and  held  to  bail  for  a  j^c^ialti/,  but  only  for 
the  sum  secured  by  it.(o)  And  hence  it  is,  that  in  an  action  of  debt  upon, 
bond,  conditioned  for  the  j^aynient  of  money,  though  the  penalty  is,  strictly 
speaking,  the  legal  debt,  yet  as  it  is  now  considered,  upon  the  statute  for 
the  amendment  of  the  law,(^:))  to  be  merely  a  security  for  principal,  in 
interest  and  costs,  the  defendant  cannot  be  arrested  for  more  than  the  sum. 
really  due  by  the  condition.  And,  in  like  manner,  where  the  bond  is  con- 
ditioned for  the  performance  of  covenants,{q)  or  save  harmless,{r)  &c.  the 
defendant  ought  not  to  be  arrested  for  the  penalty,  but  only  for  the  amount 
of  the  damages  really  sustained  by  the  breach  of  the  condition.  But, 
upon  a  bond  in  a  penalty,  conditioned  for  paying  a  less  sum  by  instalments 
and  interest,  though  a  part  only  of  the  instalments  are  due,  the  obligee 
may  arrest  for  the  aggregate  amount  of  all  the  instalments,  and 
the  interest  *accrued  due  before  the  action  brought. (a)  An  arrest  [  *174  ] 
may  also  be  made  for  the  penalty  of  a  bond  conditioned  for  the 
performance  of  ajirojuise  of  marriage, {b)  &c.  where  the  penalty  is  the  real 
debt,  or  rather  in  nature  of  stated  damages.  And  where  an  agreement 
was  made  in  writing,  to  deliver  a  certain  quantity  of  goods,  within  a  certain 
time,  at  the  price  of  300Z.  or  in  default  thereof,  that  the  defendant  would 
forfeit  and  pay  to  the  plaintiff  lOOZ. ;  in  an  action  brought  for  the  penalty, 
the  judges  of  the  Common  Pleas  were  of  opinion,  that  the  defendant 
might  be  held  to  bail.(e) 

Where  there  have  been  wtt^itaZ  dealings  between  the  parties,  the  balance 
is  considered  as  the  debt  at  law,  as  well  as  in  equity:  And  therefore,  upon 
an  unliquidated  account,  if  the  plaintiff  were  to  swear  to  the  sum  due  to 
him  on  the  debtor  side  only,  it  would  be  looked  upon  as  a  mere  evasion ; 

{dd)  R.  M.  8  Ann,(c),K.  B. 

\ee)  1  Sulk.  91).  (/)  6  Durnf.  &  East,  336.    8  Durnf.  k  East,  45T). 

\g<j)  Bull  V.  Moore  ^  another,  bail  o/Reade,  M.  28  Geo.  III.  K.  B.    8  Durnf.  &  East,  85. 

(A)  12  East,  398.  (/)  8  Moore,  366.    1  Bing.  357,  S.  C. 

h)  Per  Bitiile;i,  J.  12  East,  399.  {I)  4  Taunt.  705. 

(m)  5  Taunt.  201.    1  Marsh.  19,  S.  C.    Id.  21,  (<;),  and  see  1  Maule  &  Scl.  494. 

\n)  9  Price,  155. 

(o)  6  Durnf.  &  East,  217.  2  East,  409.  And  for  the  dilTerence  hciyracn  penalties  and  /lyt/i- 
rfa<c(i  damages,  see  2  Bos.  &  Pul.  346.  Holt,  Ni.  Pri.  45,  n.  2  Price,  200.  8  Moore,  244.  1 
Bing.  302,  S.  C.    6  Barn.  &  Ores.  216.  (;>)  4,  5  Ann,  c.  16,  §  13. 

(7)  1  Sid.  63.    1  Salk.  100.   Barnes,  109.    Saj.  Rep.  109.    Doug.  449.    5  Taunt.  247. 

(r)  Barnes,  109.  \a)  7  Taunt.  251. 

\h]  1  Wils.  50.    3  Bur.  1351,  1373.    Doug.  449.  (c)  Barnes,  86,  but  sec  id.  108. 

Vol.  I.— 12 


171  FOR  WHAT  CAUSE  OF  ACTION 

and  if  not  sufficient  to  support  an  indictment  for  perjury,  would  it  seems 
entitle  the  defendant  to  a  special  action  on  the  case,  for  a  malicious 
arrest  :{d)  And,  at  any  rate,  if  the  balance  did  not  constitute  an  arrest- 
able debt,  the  defendant  would  be  entitled  to  the  costs,  under  the  statute 
4o  Geo.  III.  c,  46,  §  3,  as  having  been  arrested  and  held  to  bail,  without 
any  probable  cause. (e) 

The  defendant  having  been  once  arrested,  cannot  in  general  be  arrested 
again,  for  the  same  cause  of  action. (/)  Nemo  debet  his  vexari,  pro  eddem 
causa.  Thus,  where  the  defendant  was  arrested  on  a  writ  taken  out  pend- 
ing a  prior  action,  wherein  he  had  been  previously  arrested  for  the  same 
cause,  the  court  discharged  him  on  common  bail.(^)  So  the  defendant 
was  disharged  where  he  had  been  arrested  a  second  time,  pending  a  writ 
of  error,  and  before  judgment  was  given  thereon,  or  the  action  discon- 
tinued, (/i)  And  where  the  plaintiff,  not  liking  the  bail  in  the  former 
action  obtained  a  side-bar  rule  for  leave  to  discontinue  on  payment  of 
costs,  and  afterwards  proceeded  to  charge  the  defendant  in  custody  with 
a  declaration  in  a  new  action,  the  court  conceiving  this  to  be  a  trick,  dis- 
charged the  side-bar  rule ;  so  that  the  bail  to  the  former  action  still  continued 
liable. (i)  But  where  it  appeared  that  the  bail  in  the  prior  action  were 
forsworn,  the  court  refused  to  assist  the  defendant,  though  he  was  arrested 
before  the  former  action  was  discontinued  ;  saying,  the  plaintiff  was  right 
in  laying  hold  of  him  as  he  did ;  for  had  he  discontinued,  the  defendant 
would  probably  have  run  away.(^)  And  it  has  been  deter- 
[  *175  ]  mined,  that  the  plaintiff,  after  suing  out  common  process,  may 
sue  out  a  bailable  writ  for  the  same  cause,  *and  arrest  the 
defendant,  before  he  discontinues  the  first  action ;  for  this  is  not  a  case 
within  the  rule  of  not  permitting  the  defendant  to  be  twice  arrested  for 
the  same  cau3e.(«)  By  rule  of  Mich.  15  Car.  ll.{b)  it  is  ordered  that  "if 
a  defendant  be  lawfully  delivered  from  arrest  upon  any  process,  he  shall  not 
be  arrested  again  at  the  same  time,  by  virtue  of  another  process,  at  the  suit 
of  the  same  plaintiff."  But,  notwithstanding  this  rule,  the  court  of  King's 
Bench  held,  that  the  plaintiff  might  lodge  a  detainer  against  the  defendant, 
in  custody  upon  mesne  process,  after  his  bail  had  justified,  the  defendant  not 
having  completed  his  discharge,  but  being  still  within  the  prison  ;  and  that 
he  was  not  entitled  to  be  discharged,  upon  an  affidavit  that  the  sum  for  which 
the  detainer  was  lodged,  was  due  at  the  time  of  the  first  arrest. (c) 

The  rule  for  preventing  vexatious  arrests,  was  formerly  so  rigidly  adhered 
to,  that  where  the  plaintiff  was  nonjjrossed  for  want  of  a  declaration,  he 
could  not  afterwards  have  arrested  the  defendant,  in  a  second  action  for  the 
same  cause.(tZ(i)  And  this  is  still  the  practice  in  the  Common  Pleas.(ee)  But, 

(d)  Dr.  Thurlington's  case,  4  Bur.  1996.  And  for  the  facts  of  this  case,  see  1  Ken.  424. 
See  also  5  Barn.  &  Aid.  513.  1  Dowl.  &  Ryl.  67,  S.  C.  2  Barn.  &  Cres.  693.  4  Dowl.  &  Ryl. 
187,  S.C.    3  Barn.  &  Cres.  139.    4  Dowl.  A^Ryl.  653,  S.  C,  but  see  2  Campb.  hdi.semb.  contra. 

[e)  5  Barn.  &  Aid.  513.  1  Dowl.  &  Ryl.  67,  S.  C.  And  see  further,  as  to  the  cause  of 
action,  for  which  a  defendant  may  or  may  not  be  arrested  and  holden  to  bail.  Petersd. 
Part  I.  Chap.  II. 

(/)  R.  M.  15  Car.  II.  reg.  2,  K.  B. 
[g]  2  Str.  1209,  and  see  13  Price,  8.   M'Clel.  2,  S.  C. 

{h)  7  Taunt.  192.  (i)  4  Bur.  2502.  {k)  2  Str.  1216. 

(a)  6  Durnf.  &  East,  616,  and  see  Wightw.  72.    Davison  v.  Cleworth,  H.  58  Geo.  III.  K.  B. 
1  Chit.  Rep.  275,  in  notis.    13  Price,  8.    M'Clel.  2.  S.  C. 
(6)  ?  2,  K.  B.  (c)  3  Maule  &  Sel.  144. 

{dd)  1  Ld.  Raym.  679.    Com.  Rep.  94,  S.  C. 
(ee)  3  Moore,  607.    1  Brod.  &  Bing.  2S9,  S.  C.    4  Moore,  294.    1  Brod.  &  Bing.  514,  S.  C. 


AN  ARREST  IS  ALLOWED.  175 

in  the  King's  Bench,  it  has  been  determined,  that  after  a  nonpros,  the 
defendant  sliall  find  bail  in  the  second  action  ',{ff)  for  the  phiintiff,  it  is  said, 
suffers  enough  by  paying  costs  in  the  first  action,  and  therefore  ought  not  to 
be  in  a  worse  condition  than  before.  For  a  similar  reason,  where  the  plain- 
tiff, having  misconceived  his  action,  moves  to  discontinue  w])on  payment  of 
costs,  he  may,  after  the  costs  are  taxe<l  and  paid,(/7^)  take  out  a  new  writ  for 
the  same  cause,  and  have  the  defendant  arrested  de  novo.ijih)  But  where  the 
plaintiff  held  the  defendant  to  bail,  before  the  cause  of  action  accrued,  and 
afterwards  discontinued  and  paid  costs,  and  then  arrested  him  de  novo  for 
the  same  cause,  after  it  accrued  ;  the  court  of  Kings's  Bench  discharged  the 
defendant  on  common  bail.(?)  If  the  plaintiff  be  nonsuited,  in  an  action 
of  debt  on  bond,  for  not  sufficiently  proving  the  execution  of  it,  on  non 
est  factum  ;{k)  or  on  the  ground  of  a  variance  in  a  former  action,  in  which 
the  defendant  was  arrested  ;(Z)  he  may  be  arrested  again,  in  a  second 
action  for  the  same  cause  :  But  this  is  not  allowed  after  a  nonsuit  on  the 
merits. (77j)  So,  where  an  action  was  brought  against  one  of  two  partners 
for  a  joint  debt,  and  the  defendant  having  been  arrested  therein,  pleaded 
the  partnership  in  abatement,  it  was  holden,  that  the  plaintiff  might,  after 
entering  a  cassetur  billa,  bring  a  new  action  against  both  partners,  and 
arrest  the  defendant  again  for  the  same  debt.(n)  And  whore 
the  plaintiff  becomes  bankrupt,  before  *interlocutory  judgment,  [  *176  1 
the  defendant  may  be  arrested  and  held  to  bail  by  the  assignees, 
in  a  second  action  for  the  same  cause.(«)  But  where  the  defendant  has 
been  arrested  in  an  action  brought  in  the  name  of  a  bankrupt,  by  the 
authority  of  his  assignees,  he  cannot  be  afterwards  arrested,  at  the  suit 
of  the  assignees,  for  the  same  cause  of  action,  unless  the  first  action  has 
been  discontinued,  and  the  costs  taxed  and  paid. (6) 

Wherever  the  second  action  appears  to  be  vexatious,(e)  or  the  defend- 
ant is  arrested  or  detained  in  custody  therein,  and  after  being  superseded 
or  supersedeable  in  a  former  action,  by  the  laches  of  the  plaintiff,(c?)  the 
court  will  discharge  the  defendant  on  common  bail ;  even  though  he  be 
arrested  on  a  note  given  subsequent  to  the  supersedeas,{e)  or  in  a  diflferent 
form  of  action,  so  as  it  be  substantially  for  the  same  cause. (/)  And 
where  a  defendant  was  arrested  in  the  mayor's  court  of  Hereford,  by  the 
practice  of  which  court,  a  plaintiff  is  not  bound  to  declare,  without  a  rule 
for  that  purpose  and  the  defendant,  without  conforming  to  the  practice, 
superseded  the  action  for  want  of  a  declaration,  and  was  again  arrested 
in  London  for  the  same  cause  of  action,  the  court,  without  entering  into 
the  irregularity  of  the  defendant's  proceedings,  discharged  him  on  filing 
common  bail.(_^)  But  where  there  are  i^o  laches  in  the  plaintiff,  and  d  for- 
tiori where  the  defendant  is  in  fault,  the  court  will  not  assist  the  latter : 
Thus,  where  A.  having  been  arrested  at  the  suit  of  15.  gave  him  a  draft 
for  part  of  the  demand,  and  agreed  to  settle  the  remainder  in  a  few  days ; 

(/)  1  Str.  439. 

{(/!/)  2  Str.  1209.  3  Maule  &  Sel.  153.  5  Barn.  &  Aid.  905.  1  Dowl.  k  Ryl.  556,  S.  C.  7 
Moore,  312.  (AA)  2  Wils.  381.    Barnes,  399. 

(t)  5  Maule  &  Sel.  93.  (k)  Barnes,  73. 

(I)  1  Chit.  Rep.  273.  (m)  Per  Cur.  E.  19  Geo.  IIL  K.  B. 

(«)  Salisbur;/  v.  WhilcaU,  H.  43  Geo.  III.  K.  B.    1  Marsh.  395,  6. 

((/)  Barnes,  assi<jnee  of  Saunders,  v.  Maton,  M.  23  Geo.  III.  K.  B.    15  East,  631. 

(6)  1  Chit.  Rep.  276.  (c)  2  Blac.  Rep.  809. 

(d)  2  Str.  782,  943,  1039.  2  Wils.  93.  Cowp.  72.  Cookson  v.  Foiter,  T.  23  Geo.  III.  K.  B., 
but  see  Barnes,  (52.  («)  2  Str.  1218.    8  East,  334. 

(/)  3  East,  309.  \g)  3  Dowl.  &  Rjl.  189. 


176 


FOR  WHAT  CAUSE  OF  ACTION 


after  which,  the  draft  being  dishonoured,  B.  sued  out  a  now  writ  against 
A.  and  arrested  him  again  on  the  same  aflidavit ;  this  was  holden  to  be 
ref^uLar.(/i)  And  if  the  defendant  be  discharged  out  of  custody,  on 
account  of  some  act  for  which  the  plaintiff  is  not  answerable,  such  as  an 
alteration  in  the  warrant  to  arrest  by  the  sheriff's  officer,  without  the 
plaintiff's  knowledge,  in  such  case  the  defendant  may,  after  the  first  action 
is  discontinued,  be  again  held  to  bail  for  the  same  cause. (u)  So,  where 
the  first  action  is  compromised,  and  a  second  brought  for  the  same  cause, 
the  court  will  not  set  aside  a  bail  bond  taken  on  an  arrest,  unless  the  pro- 
ceedings appear  to  be  vexatious. (A;A;)  The  defendant  having  given  a  bond, 
conditioned  for  the  payment  of  a  sum  of  money,  if  the  sentence  of  a 
A^'ice-Admiralty  court  should  be  affirmed  on  appeal,  and  the  appeal  having 
been  dismissed  for  want  of  prosecution,  the  defendant  was  arrested  and 
holden  to  bail ;  after  which,  the  appeal  being  restored  upon  petition,  the 
action  was  suspended,  and  the  bail  discharged  ;  but  being  again  dismissed, 
a  new  action  on  the  bond  was  commenced ;  and  the  court  of  Common  Pleas 
held,  that  the  defendant  might  be   again  arrested  and  holden  to  bail.(Z) 

So,  where  the  defendant  has  been  arrested  abroad,  he  may  be 
[  *177  ]  again  arrested  here,  for  the  same  cause  of  action ;  at  *least 

where  it  does  not  appear  that  the  plaintiff  may  have  the  same 
redress  and  benefit  by  the  proceedings  abroad,  as  in  this  country.(a)  It 
is  no  ground  for  discharging  the  defendant  out  of  custody,  that  a  previous 
application  had  been  made  to  the  court  of  Chancery,  for  a  writ  of  ne 
exeat  regno,  for  the  same  sum. (5)  So,  where  A.  proceeded  by  foreign 
attachment  against  B.  who  surrendered,  and  pleaded  to  the  jurisdiction 
of  the  court,  upon  which  A.  discontinued  the  foreign  attachment,  and 
arrested  B.  by  process  out  of  the  King's  Bench,  the  court  of  Common 
Pleas  held,  that  the  foreign  attachment  was  not  such  a  proceeeding  as  to 
entitle  B.  to  be  discharged  out  of  custody  in  the  present  suit,  on  entering 
a  common  appearance. (c)  And  where  the  defendant  being  in  custody 
within  a  ZocaZ  jurisdiction,  the  plaintiff  lodged  a  detainer  against  him,  but 
discontinued  the  action  from  fear  of  a  plea  to  the  jurisdiction,  and  then 
arrested  the  defendant  in  the  King's  Bench,  without  having  paid  the  costs 
of  the  first  suit ;  the  court  held,  that  the  defendant  was  not  entitled  to  be 
discharged  on  filing  common  bail,  the  second  suit  not  being  vexatious. (cZ) 
Where  a  defendant  was  twice  arrested,  and  put  in  bail  to  two  writs  in 
different  counties,  for  the  same  cause  of  action,  the  court  of  King's  Bench 
refused  to  make  a  rule  absolute  for  setting  aside  one  of  the  two  writs;  the 
proper  course  being,  that  an  exoneretur  should  be  entered  on  one  of  the 
bail-pieces(e)  , 

Upon  the  same  principle  of  not  permitting  the  defendant  to  be  twice 
arrested  for  the  same  cause,  it  is  holden, (/)  that  in  an  action  of  debt  upon 
judgment,  whether  after  verdict  or  by  default,  the  defendant  cannot  be 
arrested,  if  he  was  previously  arrested  in  the  original  action;  even  though 

{h)  6  Durnf.  &  East,  52,  and  see  Penfold  v.  Maxwell,  M.  57  Geo.  III.  K.  B.    1  Chit.  Rep.  275. 

{ii)  6  Durnf.  &  East,  218.  (kk)  1  Chit.  Rep.  161. 

(1)  1  New.  Rep.  G.  P.  13. 

(a)  7  Durnf.  &  East,  470.    2  East,  453.  (b)  8  Taunt.  24. 

(c)  5  Taunt.  851.  1  Marsh.  395,  S.  C,  and  see  the  case  of  Bromley  v.  Feck,  5  Taunt.  852,  m 
notis.  (d)  3  Dowl.  &  Ryl.  33. 

(e)  1  Chit.  Rep.  392.  And  see  further,  as  to  the  cases  in  which  the  defendant  may  or  may 
not  be  twice  arrested  for  the  same  cause,  id.  273,  [a),  276,  (a).    Petersd.  Part  I.  Chap.  IV. 

(/)  2  Str.  1218.    Say.  Rep.  43.    Pr.  Reg.  54.    Cas.  Pr.  C.  P.  32,  S.  C.    Barnes,  116. 


AN  ARREST  IS  ALLOWED.  177 

the  bail  in  that  action  have  since  become  insolvent,{g)  or  the  plaintiff  has 
released  them,  by  declaring  in  a  different  county,(7<)  or  the  defendant  lias 
surrendered  in  tlieir  discluirge,  and  obtained  a  8uper8edca8.{i)  And  if  a 
defendant  being  arrested  upon  process  of  the  King's  Bench,  give  a  ■warrant 
of  attorney  to  confess  judgment,  and  be  afterwards  holden  to  bail  in  the 
Common  Pleas,  in  an  action  upon  that  judgment,  the  latter  court  ■will  dis- 
charge him  upon  a  common  appearance. (/c)  ]>ut  if  the  defendant  were  not 
arrested  in  the  original  action,  he  may  be  arrested  in  an  action  of  debt  on 
the  judgment. (/)  And,  in  the  Common  Pleas,  tlie  defendant  may  be 
arrested  in  such  action,  notwithstanding  a  writ  of  error  has  been 
brought,  and  bail  *put  in  thereon. (a)  Where  a  cause,  in  which  [  *178  ] 
the  defendant  has  been  arrested,  is  referred  to  arbitration,  and 
the  arbitrator  awards  to  the  plaintiff  a  sum  exceeding  twenty  pounds,  the 
defendant  may  be  arrested  again,  in  the  action  upon  the  award. (/<) 

It  was  formerly  holden,  that  where  the  judgment  was  merely  for  costs, 
upon  a  nonsuit,(6')  or  the  debt  was  originally  under  teii  pounds,  but  raised 
to  a  larger  sura  by  the  addition  of  costs  ;(t/)  or  the  action  was  for  general 
damages,  which  were  reduced  by  the  judgment  to  a  sum  certain  above  ten 
pounds, (f)  the  defendant  could  not  be  arrested  in  the  King's  bcncli,  cither 
upon  the  judgment  itself,  or  upon  a  subsequent  promise,  in  consideration 
of  forbearance,(/)  to  pay  the  debt  and  costs.  But  it  was  afterwards 
determined  in  both  courts,(  (/_^)  that  a  defendant  might  be  arrested  and  held 
to  special  bail,  in  an  action  on  a  judgment  for  ten  pounds,  for  damages 
and  costs;  though  the  original  debt  alone  were  under  that  amount.  This 
determination  seems  to  have  occasioned  the  passing  of  the  statute  43  Geo. 
III.  c.  4G,  §  I.  by  which  it  is  enacted,  that  "  no  person  shall  be  arrested 
or  held  to  special  bail,  upon  any  process  issuing  out  of  any  court  in  Ung- 
land  or  Ireland,  for  a  cause  of  action  not  originally  amounting  to  the  sum 
for  which  such  person  is  by  the  laws  no^w  in  being  liable  to  be  arrested 
and  held  to  bail,  over  and  above  and  exclusive  of  any  costs,  charges  and 
expenses  that  may  have  been  incurred,  recovered  or  become  chargeable, 
in  or  about  the  suing  for  or  recovering  the  same,  or  any  part  thereof." 
And  by  the  statute  7  &  8  Geo.  IV.  c.  71,(/i7i)  "no  person  shall  be  held  to 
special  bail,  upon  any  process  issuing  out  of  any  court,  where  the  cause 
of  action  shall  not  have  originally  amounted  to  the  sum  of  tiventy  pounds 
or  upwards,  over  and  above  and  exclusive  of  such  costs,  charges  and  ex- 
penses as  aforesaid."  This  statute,  however,  does  not  extend  to  Scotland 
or  Ireland.{ii) 

{g)  Say.  Rep.  160. 

\h)  2  \Vil3.  93.    Barnes,  116,  S.  C,  but  see  2  H.  Blac.  278. 

(t)  2  Str.  1039.  Cowp.  72,  R.  H.  8  Geo.  II.  rey,  2  C.  P.  Cas.  Pr.  C.  P.  34.  Pr.  Reg.  56. 
Barnes,  390.    1  Bos.  &  Pul.  361. 

{k)  2  Bos.  &  Pul.  416,  but  see  Barnes,  94. 

(;)  8  Durnf.  &  East,  85.  Pr.  Reg.  55,  6.  Cas.  Pr.  C.  P.  32,  S.  C.  Barnes,  116.  1  New  Rep. 
C.  P.  133. 

(rt)  Barnes,  71.    Pr.  Reg.  57.    Com.  Rep.  556,  S.  C.    2  Blac.  Rep.  768. 

(6)  2  Durnf.   &  East,  756. 

(c)  5  Bur.  2660.    2  Blac.  Rep.  1274,  C.  P.  contra. 

{d)  2  Str.  975, 1077.    3  Bur.  1389.    4  Bur.  2117.    Butchfr  r.  nolhmd,n.  25  Geo.  III.  K.  B. 

(e)  2  Sir.  1243.    1  Wils.  120.  (f)  Cowp.  129. 

(y-/)  4  Durnf.  &  East,  570,  K.B.  Barnes,  432,  3.  Pr.  Reg.  60.  Cas.  Pr.  C.  P.  89,  S.  C.  C.  P., 
but  see  Barnes,  433.     Pr.  Reg.  61,  S.  C,  temb.  contra. 

(hh)  I  1,  and  see  stat.  51  Geo.  III.  c.  124,  §  1,  continued  by  57  Geo.  III.  c.  101.  (n)  I  10. 


178 


OF  THE  AFFIDAVIT 


The  affidavit  required  by  the  statutes,  of  the  cause  of  action,  may  be 
made  by  the  plaintiff,  his  wife,  or  a  third  person  -.{h)  and  it  may  be  made 
by  one  or  several  persons. [a]  The  affirmation  of  a  Quaker  is  sufficient  to 
hold  the  defendant  to  special  bail.(^)  And,  in  the  Common  Pleas,  an  affi- 
davit made  by  a  third  person,  need  not  state  any  connection  between  the 
deponent  and  the  plaintiff.(wi)[B]     But  the  affidavit,  or  affirmation,  must 

be  made  by  some  person  who  is  legally  competent  to  be  a  wit- 
[  *179  ]  ness  ;  and  therefore  it  *is  bad,  if  made  by  a  person  convicted  of 

felony,  or  other  infamous  crime.(«a)  An  affidavit  however,  that 
the  plaintiff  is  a  transported  felon,  cannot  be  read  in  answer  to  an  affidavit 
to  hold  to  bail,  made  by  a  third  person  :(^)  And  a  plaintiff  convicted  of  'a 
conspiracy,  is  not  incompetent  to  make  an  affidavit  to  hold  to  bail.(c)  The 
true  place  of  abode  and  addition  of  every  person  making  the  affidavit 
must  be  inserted  therein. (c?)  In  the  King's  Bench  however,  the  deponent 
may  be  described  as  "  of  the  city  of  London^  merchant  :(e)"  And,  in  the 
Common  Pleas,  the  addition  of  '•'•manufacturer''  to  the  deponent's  name, 
has  been  deemed  sufficient. (/)  But  the  court  of  King's  Bench  will  not 
try  the  real  place  of  the  plaintiff's  abode  upon  affidavits  '.{g)  And  there  is 
no  occasion  to  insert  in  the  affidavit,  the  addition  and  description  of  the 
defendant.[h)  In  an  affidavit  to  hold  to  bail,  the  plaintiff's  clerk  may 
state  his  place  of  abode  to  be  the  office  where  he  is  employed  the  greater 
part  of  the  day,  though  at  night  he  sleep  at  another  place  :(z)  and  it  is 
sufficient  to  describe  him  as  clerk  to  his  employer,  whose  address  is 
stated.(A;^)  So  a  foreigner,  whose  general  residence  is  abroad,  and  who 
only  landed  here  for  a  temporary  purpose,  may  properly  describe  his  place 
of  abode  to  be  his  own  country,  and  not  at  the  place  where  the  affidavit 
was  sworn  \[ll)  And  where  a  deponent  had  been  a  few  days  before  dis- 
charged out  of  prison,  but  by  permission  had  still  continued  to  lodge  there 
at  night,  having  no  other  place  of  residence,  his  describing  himself  bond 
fide,  in  an  affidavit  to  hold  bail,  as  late  of  such  a  prison,  has  been  deemed 
sufficient  :{mm)    But  a  deponent  who  has  left  one  place  of  residence,  and 

(k)  1  Wils.  339.    Say.  Rep.  59,  S.  C.    1  Bos.  &  Pul.  1.    1  Chit.  Rep.  58, 161.    9  Price,  322. 
{I)  Cowp.  382,  and  see  Willes,  292,  n.    Append.  Chap.  X.  §  5. 
(m)  1  Bos.  &  Pul.  1.    4  Taunt.  231.     1  Chit.  Rep.  58. 161. 

{aa)  5  Mod.  74.    2  Salk.  461.     Barnes,  79.    Pr.  Reg.' 49,  S.  C.     2  Str.  1148.     2  Wils.  225. 
and  see  Peake's  Evid.  5  Ed.  129,  &c..  but  see  Barnes,  116,  contra, 
(b)  1  Chit.  Rep.  165.  (c)  4  Dowl.  &  Ryl.  144. 

(d)  R.  M.  15  Car.  II.  rfi^r.  1,  K.  B.  1  East,  18,  330.  4  Taunt.  154.  2  Bam.  &  Cres.  563.  4 
Dowl.  &  Ryl.  45,  S.  C,  but  see  6  Taunt.  73,  by  which  it  appears  that  there  is  no  such  rule  in 
the  Common  Pleas. 

(e)  3  Maule  &  Sel.  165.  (/)  3  Bos.  &  Pul.  550. 
iff)  Per  Cur.  H.  45  Geo.  III.  K.  B.    2  Smith  R.  207,  S.  C. 

(h)  Per  Cur.  T.  41  Geo.  III.  K.  B. 

{i)  1  Maule  &  Sel.  103,  and  see  2  Chit.  Rep.  15. 

(kk)  1  Chit.  Rep.  464,  m  notis.  {II)  3  East,  154. 

{mvi)  11  East,  528. 

[a]  It  is  said  that  a  partnership,  as  such,  cannot  make  an  affidavit.  Gaddis  v.  Dorothy, 
1  Green's  N.  J.  Rep.  325. 

[b]  Where  the  plaintiff  resides  in  a  foreign  country,  and  indeed  generally,  the  affidavit 
made  by  an  agent,  that  he  the  agent  is  informed  and  believes  that  the  defendant  is  in- 
debted to  the  plaintiff,  has  been  held  to  be  sufficient,  the  court  in  this  case,  reiterating  the 
general  rule,  that  the  affidavit  must  be  distinct  and  positive  as  to  the  existence  of  the  debt 
or  cause  of  action.  Kerr  v.  Phillips,  2  Rich.  S.  C.  Rep.  197.  Bank  of  Mobile  v.  Smith,  14  Ala. 
416,  and  see  page  180,  note [a]. 


TO  UOLD  TO  BAIL.  179 

resides  in  another,  cannot  regularly  describe  himself  as  late  of  the  for- 
mer.(w) 

The  affidavit  may  be  sworn  in  court,  or  before  a  judge,  or  commissioner 
of  the  court  authorized  to  take  affidavits,  by  virtue  of  the  statute  29  Ccw.  II. 
c.  0,(0)  or  else  before  the  officer  Avho  issues  the  process,  or  his  deputy  :(p) 
which  deputy  must  be  appointed  for  issuing  process,  and  not  merely  for 
taking  affidavits,  7  Barn.  <&  Ores.  80. [a]  And  it  may  be  sworn  before  a  com- 
missioner, although  he  be  concerned  as  attorney  for  the  plaintiff.((^)  But, 
in  the  Common  Pleas,  an  affidavit  of  debt  sworn  before  a  commissioner  in 
the  country,  without  stating  him  to  be  a  commissioner  in  the  jurat,  is  insuf- 
ficient, although  entitled  in  this  coart :  and  the  court  will  not  allow  a  sup- 
plementary affidavit  to  be  filed,  to  aid  the  defect,  1  Moore  &  P.  22,  4  Bing. 
393,  S.  C.  In  the  King's  Bench,  when  a  bill  of  Middlesex  issues,  upon  an 
affidavit  of  debt  duly  sworn  pursuant  to  the  statute  12  Geo.  I.  c.  29,  §  2,  an 
office  copy  of  the  same  affidavit  will  authorize  the  issuing  of  a  latitat  into  a 
different  county,  7  Barn.  &  Cres.  52(3,  1  Man.  &  Byl.  231,  S.  C.  But  a 
special  capias^  issued  upon  an  affidavit  sworn  at  the  bill  of  3Iiddlesc.r  office, 
is  irregular:  and  though  it  was  contended,  that  the  practice  was  for  the 
filacer,  upon  transmitting  to  him  either  the  original  affidavit  or  an 
office  copy  of  it,  to  issue  the  writ,  yet  *the  court  said  that  such  [  *180  ] 
could  not  be  the  practice  ;  for  that  an  affidavit  made  for  one  spe- 
cific object,  could  not  be  transferred  to  another,  and  perjury  could  not  be 
assigned  on  the  office  copy.(a)  So,  in  the  Common  Pleas,  where,  on  an 
affidavit  of  debt  sworn  before  and  filed  with  the  filacer  for  Devonshire,  a 
capias  ad  respondendum  issued  to  the  sheriff  of  that  county  against  the 
defendant,  who  not  being  found  there,  an  office  copy  of  such  affidavit  was 
filed  with  the  filacer  for  London,  on  which  another  capias  issued,  directed 
to  the  sheriffs  of  London,  under  which  the  defendant  was  arrested,  the 
court  held,  that  this  was  irregular ;  for,  by  the  terms  of  the  statute,  an 
affidavit  must  be  made  before  a  judge,  or  commissioner  of  the  court  author- 
ized to  take  affidavits,  or  before  the  officer  who  issues  the  process  or  his 
deputy ;  and  in  this  case,  therefore,  the  affidavit  should  have  been  sworn 
before  and  filed  with  the  filacer  in  London.{h)  But  where  the  defendant 
was  arrested  on  a  testatum  capias  into  Devonshire,  without  any  affidavit 
filed  on  issuing  the  testatum  capias,  an  affidavit  having  been  filed  on 
issuing  a  previous  capias  into  Cambridgeshire,  the  court  held  it  to  be 
regular,  though  the  testatum  was  not  tested  on  the  quarto  die  post  of  the 
original ;  the  filacer  for  Cambridgeshire  being  the  proper  officer  to  issue 
writs  into  Devonshire.[c)     By  the  jurat  to  an  affidavit  of  debt,  made  by  a 

(n)  Td.  {hid. 

(o)  Extended  to  the  isle  of  Afan,  by  statute  6  Geo.  III.  c.  50,  ?  2.  And  see  the  statute  55 
Geo.  III.  c.  157,  for  empowering  the  courts  of  law  and  equity  in  Ireland,  to  prant  commis- 
sions to  take  affidavits,  in  all  parts  of  Great  Britain.     The  commission  for  taking  aflidavits 


[a]  An  affidavit  must  on  its  face  appear  to  have  been  taken  by  the  proper  officer,  and  the 
legal  requisitions  to  have  been  complied  with.  The  court  cannot  stop  to  inquire  into  the 
competency  of  the  ofiicer  or  the  place  wiicre  it  was  taken.  The  State  v.  Green,  3  Green's 
N.  J.  Rep.  90.  Saunders  v.  Envin,  2  How.  Miss.  732.  Manufacturers'  Bank  \.  Coicdcn,  3  Hill 
4G1.    English  v.  Bonham,  3  Green's  N.  J.  Rep.  431.  ' 


2gQ  OF  THE  AFFIDAVIT 

foreiffncr,  it  was  certified  by  the  signer  of  the  bills  of  Middlesex,  that  the 
affidavit  was  interpreted  by  F.  C.  professor  of  languages,  (he  having  first 
sworn  that  he  understood  the  Eyiglish  and  French  languages,)  to  the 
dejionent,  who  was  afterwards  sworn  to  the  truth  thereof;  and  this  was 
holden  to  be  sufficient.((:?)[A'], 

{d)  4  Barn.  &  Cres.  358,     6  Dowl.  &  Ryl.  514,  S.  C. 

[a]  Where  an  affidavit  is  made  out  of  the  state,  there  should  be  made  before  a  judge  or 
justice  in  the  state  where  it  is  to  be  used  an  additional  affidavit,  setting  forth  that  the  ori- 
ginal affidavit  was  made  before  a  person  who  had  authority  to  administer  an  oath  ;  that  the 
person  who  subscribed  the  affidavit  did  take  the  oath  ;  that  the  handwriting  so  subscribed 
is  the  proper  handwriting  of  the  affiant;  and  that  the  attestation  thereto  attached  is  the 
proper  handwriting  of  the  officer  before  whom  it  purports  to  have  been  taken.  Spragella  v. 
Montehruno,  1  South  Car.  Const.  Rep.  281,  by  Mill.  It  was  held  in  this  case  that  an  affidavit 
made  before  a  notary  public  in  another  state,  and  certified  under  his  notarial  seal,  was  in- 
sufficient to  hold  to  bail.  It,  however,  rests  wholly  upon  the  construction  of  the  South 
Carolina  act  of  1769,  though  the  opinion  of  Judge  Johnston  may  be  usefully  consulted  as 
to  sufficiency  of  attestations  and  authentications  done  out  of  the  state,  and  as  to  the  prin- 
ciples which  regulate  exemplifications  under  the  acts  of  Congress. 

In  Belden  v.  Deroe,  12  Wend.  225,  the  form  of  a  certificate  is  given,  and  approved  by 
Savage,  Ch.  J.,  after  exceptions  taken  by  counsel.  The  practice  does  not  seem  to  be  uni- 
form. In  Tucker  v.  Ladd,  4  Cow.  47,  an  affidavit  taken  before  a  notary  public  in  New 
Hampshire,  was  allowed  to  be  read  in  New  York.  The  Supreme  Court  of  New  Jersey,  in 
The  Trenton  Bank  v.  Wallace,  4  Halst.  Rep.  83,  and  Ano7iy.,  3  Id.  176,  held  that  an  affidavit 
made  before  a  judicial  officer  in  another  state,  verifying  a  plea  in  abatement,  could  not  be 
read.     This,  however,  depended  on  the  construction  of  a  rule  of  court. 

In  the  absence  of  statutory  regulations  or  rules  of  court,  perhaps,  the  most  satisfactory 
view  of  the  whole  matter  is  presented  in  Walker  v.  Bamher,  8  S.  &  R.  61,  in  the  opinion  of 
Ch.  Just.  Tilghman,  where  it  was  held,  that  a  positive  affidavit  of  debt,  made  before  a  jus- 
tice of  the  peace  in  England,  was  held  sufficient. 

"The  question,"  says  he,  "is,  whether  this  affidavit  be  sufficient  to  hold  the  defendants 
to  special  bail,  and  a  very  important  question  it  is ;  for  it  is  contended  hj  the  counsel  for 
the  defendants,  that  no  oath  made  in  a  foreign  country,  however  positive,  is  sufficient  to 
hold  to  bail,  unless  accompanied  with  some  written  acknowledgment  of  the  debt  by  the 
defendant.  If  the  law  be  so,  it  may  create  great  embarrassment  to  foreigners,  and  be  in- 
jurious to  the  commercial  credit  of  the  state.  We  have  therefore  endeavored  to  ascertain 
the  ground  on  which  the  rule,  set  up  by  the  defendant's  counsel,  is  supported.  We  have  no 
act  of  assembly  or  rule  of  court  on  the  subject.  But  the  authority  of  the  case  of  Taylor  v. 
Knox,  1  Dall.  159,  decided  by  the  late  Ch.  J.  Shippen,  when  President  of  the  court  of  Com- 
mon Pleas,  in  the  year  1785,  is  relied  on.  Of  course,  we  have  examined  that  case  thoroughly  ; 
and  it  appears,  that  the  president  found  himself  embarrassed  by  a  practice,  which  had  been 
established  before  he  came  on  the  bench,  of  refusing  special  bail,  unless  the  debt  were 
sworn  to  before  one  of  the  judges  of  the  court,  agreeably  to  the  stat.  1 2  Geo.  I.  This  prac- 
tice he  considered  as  illegal,  because  that  statute  had  never  been  extended  to  this  state, 
before  the  revolution.  The  consequence  ought  to  have  been,  the  establishment  of  a  prac- 
tice, agreeably  to  the  general  principles  of  commercial  law  and  the  usage  of  the  most  en- 
lightened nations.  The  mind  of  President  Shippen  was  inclined  to  liberality,  and  we  may 
plainly  discover  a  struggle  between  his  own  view  of  the  law,  and  his  wish  to  avoid  too 
wide  a  departure  from  the  sentiments  of  his  brethren  who  were  not  lawyers.  Accordingly, 
he  made  a  compromise,  by  striking  out  a  middle  way,  as  he  called  it,  between  the  statute 
12  Geo  I.,  which  required  an  affidavit  before  one  of  the  judges  of  the  court,  and  the  general 
principles  of  law  which  admitted  an  affidavit  before  a  notary  public,  or  magistrate,  of  a 
foreign  country.  President  Shippen  was  aware,  that  in  England,  before  the  statute  of  12 
Geo.  I.,  an  affidavit  before  a  notary  i)ublic  of  a  foreign  country,  was  received  in  proof  of 
cause  of  bail;  for  he  cites  a  case  to  that  purpose,  reported  in  8  Mod.  323,  (11  Geo.  I.)  But 
he  does  not  seem  to  have  understood,  that  the  same  evidence  has  been  received  since  that 
statute.  Nevertheless,  it  certainly  has.  For,  the  construction  put  upon  the  statute  by  the 
English  judges  was,  that  although  it  prohibited  a  plaintiff"  from  arresting  the  defendant  and 
holding  him  to  bail  without  an  affidavit  before  a  judge  of  the  court,  of  his  own  authority, 
and  without  a  judge's  order,  yet  it  did  not  restrain  a  judge  from  making  an  order  to  hold 
to  bail,  on  an  affidavit  made  in  a  foreign  country.  The  reason  why  it  is  presumed  that  this 
had  escaped  the  President  is,  that  he  says,  the  court  of  Common  Pleas  desired  to  keep  up  a 
reciprocity  between  this  country  and  England,  and  therefore  required  an  affidavit  before  a 
judge.     But  there  could  be  no  reciprocity  if  one  country  admitted  an  affidavit  before  a 


TO  HOLD  TO  BAIL.  180 

There  being  no  action  depending  in  court,  at  the  time  when  the  affidavit 
is  made,  it  ought  not  regularly  to  be  entitled  in  a  cause  :  and  in  one  case, 
the  King's  Bench  discharged  the  defendant  out  of  custody  on  common 
bail,  on  account  of  its  being  so  entitled  ;(c)  but  in  a  subsequent  casc,(/) 
they  thought  that  as  the  practice  had  obtained  so  long,  of  adding  a  title 
to  affidavits  of  this  kind,  it  would  be  too  much  to  determine,  that  such 
practice  had  been  erroneous ;  particularly  as  this  was  a  mere  question  of 
form,  and  did  not  interfere  with  the  justice  of  the  case.  A  rule  of  court, 
however,  has  been  since  made  in  the  King's  Bench,  "  that  affidavits  of 
any  cause  of  action,  before  process  sued  out  to  hold  defendants  to  bail,  be 
not  entitled  in  any  cause,  nor  read  if  filed. "((/)  And,  in  the  Common 
Pleas,  if  an  affidavit  to  hold  to  bail  be  entitled  in  a  cause,  it  is  bad ;  and 
the  defendant  may  be  discharged,  on  entering  a  common  appearance.(A) 
It  was  determined  in  one  case,(z)  to  be  no  objection  to  an  affidavit  to  hold 
to  bail,  that  it  was  not  entitled  "In  the  King's  Bench  :"  but  in  a  subse- 
quent case  it  was  holden,  that  an  affidavit  of  debt,  not  entitled  in  any 
court,  and  only  subscribed  with  the  words  "  i??/  the  Court,''  at 
the  bottom  of  i\iQ  jurat,  *is  not  sufficient ;(««)  though  where  the  [  *181  ] 
name  of  one  of  the  judges  of  that  court  is  affixed  to  the  affidavit, 
it  will  entitle  the  party  to  read  it,  as  sworn  in  court  •.(hh)  And  an  affidavit 
not  entitled  in  the  court,  but  purporting  at  the  foot,  to  have  been  sworn 
before  the  deputy  filacer,  is  sufficient. (cc) 

An  affidavit  made  ahroad,  out  of  the  king's  dominions,  is  put  on  the 
same  footing  as  an  affidavit  sworn  in  Scotland  or  Ireland  ;  which,  though 
not  sufficient  of  itself  to  authorize  an  arrest,  will  be  a  good  ground  for 
applying  to  the  court  or  a  judge,  for  an  order  to  hold  the  defendant  to 
special  bail.((Z)  The  affidavit,  however,  when  made  out  of  England,  ought 
to  contain  all  the  requisites  that  are  essential  to  affidavits  for  holding  to 

(e)  6  Durnf.  &  East,  640  ;  and  see  Say.  Rep.  218.  (/)  7  Durnf.  &  East,  321. 

(9)  R.  T.  37  Geo.  III.  K.  B.     7  Durnf.  &  East,  454. 

(h)  1  Bos.  &  Pul.  36,  227.  (i)  7  Durnf.  &  East,  451. 

(aa)  SMaule&Sel.  157. 

(6i)  M  157,  8;  and  see  13  East,  189.    But  see  1  Moore  &  P.  22.    4  Bing.  393,  S.  C.    Ante, 
179.    And  for  the  form  of  i\xQ  jurat,  on  an  affidavit  to  hold  to  bail,  see  Append.  Chap.  X.  ^  1. 
{cc)  1  Chit.  Rep.  165.  [d)  Ante,  166. 

foreign  magistrate  and  the  other  did  not.  But  we  may  see  clearly  -which  way  the  judg- 
ment of  President  Shippen,  who  was  a  man  of  large  views,  inclined ;  for  in  that  very  case 
of  Taj/lor  v.  K/iox,  he  held  the  affidavit  before  the  lord  Mayor  of  London,  a  sufficient  ground 
for  an  attachment,  and  even  in  cases  of  capias,  where  a  written  acknowledgment  of  the 
defendant  was  required,  he  thus  expresses  himself:  'This  rule,  however,  affects  the  inhabi- 
tants of  other  countries  as  well  as  England,  and  it  may  possibly  be  found  necessary  at 
some  future  time  to  make  an  alteration  in  it  more  conformable  to  the  general  law  on  these 
subjects.'  Had  he  been  now  living,  I  make  no  doubt  that  he  would  have  thought  that 
future  time  was  now  come,  especially  had  he  been  assured,  (as  we  have  been  by  very  satis- 
factory evidence,)  that  in  the  year  1807,  the  court  of  King's  Bench,  in  England,  ordered 
special  bail,  on  the  affidavit  of  a  citizen  of  the  United  States,  made  before  a  magistrate  in 
Paris,  proving  a  debt  contracted  in  the  United  States.  Our  commerce  has  increased  pro- 
digiously since  the  year  1785,  when  the  rule  was  laid  down  in  the  case  of  Tai/lor  v.  Knoz, 
and  in  order  to  do  justice,  it  is  necessary  that  the  law  of  evidence,  in  commercial  cases, 
should  keep  pace  with  the  progress  of  business.  This  court  is  unfettered  by  the  rule  of  the 
Common  Pleas,  and  after  diligent  search,  we  have  found  no  case,  either  reported  or  in 
manuscript,  in  which  we  have  decided  that  an  affidavit  made  in  a  foreign  country  should 
not  be  received.  Affidavits  made  in  other  states  hove  always  been  received  without  scruple, 
and  I  understand  that  suh  silfnlio  it  has  been  customary  to  demand  special  bail  on  affidavits 
made  in  Europe.  It  is  time  the  matter  should  l)e  settled.  We  have  considered  it  delibe- 
rately, and  are  of  opinion,  that  in  the  case  before  us,  the  plaintiffs  have  shown  good  cause 
for  special  bail." 


281  OF  THE  AFFIDAVIT 

bail  in  this  counti-y ;  and  therefore,  -while  the  bank  acts  remained  in  force,  it 
was  deemed  necessary  to  state,  in  an  affidavit  made  in  Ireland,  for  the 
purpose  of  arresting  the  defendant  in  this  country,  that  he  had  not  made 
a  tender  of  the  money  in  bank  notes.(e)  It  has  been  said,  that  where  an 
affidavit  of  debt  is  made  in  Scotland  or  Ireland,  the  party  verifying  it 
must  swear,  "that  it  was  made  by  the  plaintiff;  that  the  hand-writing 
subscribed  thereto,  is  of  his  own  hand-writing ;  that  the  said  affidavit  was 
made  and  taken  before  a  magistrate,  who,  deponent  believes,  had  compe- 
tent authority  to  administer  an  oath ;  and  that  the  hand-writing  of  the 
person  subscribing  the  said  affidavit,  is  the  hand-writing  of  such  magis- 
trate."(/)  But  in  practice  it  is  deemed  sufficient,  where  the  affidavit  of 
debt  is  made  in  Scotland  or  Ireland,  to  swear  to  the  hand-writing  of  the 
judge  before  whom  it  was  made:(^)  And  accordingly,  where  an  affidavit 
of  debt  contained  no  place  in  the  jurat,  but  purported  to  be  sworn  before 
the  Chief  Justice  of  the  King's  Bench  in  Ireland,  and  to  be  assigned  by 
him,  and  such  signature  was  verified  by  affidavit  here,  the  court  held,  that 
it  was  a  sufficient  foundation  for  arresting  the  defendant,  under  a  judge's 
order,  on  mesne  process  :{h)  Though  if  an  affidavit  of  debt  be  made  abroad, 
out  of  the  king's  dominions,  it  is  usual  to  swear  to  the  other  circumstances 
before  stated.(^)  An  affidavit  to  hold  to  bail,  on  an  Irish  judgment,  must 
show  the  value  of  the  sum  recovered  in  Irish  money.(^)  And  where  an 
affidavit  to  hold  to  bail,  made  before  a  British  Consul  in  a  foreign  country, 
stated  that  the  defendant  was  indebted  to  the  plaintiff  in  100,000Z.  sterling, 
for  money  had  and  received,  it  was  holden  that  the  affidavit  was  insuf- 
ficient :  inasmuch  as  it  did  not  appear  with  certainty,  whether  the  defendant 

was  indebted  in  British  sterling  money.(Z)  It  is  not  settled, 
[  *182  ]  whether  a  British  *  Consul,  or  Vice-Consul,  resident  in  a  foreign 

country,  has  authority,  by  virtue  of  his  office,  to  administer  an 
oath,  for  the  purpose  of  holding  a  defendant  to  bail  in  this  country  ;  the 
judges  of  the  King's  Bench,  in  a  late  case,(a)  being  equally  divided  in 
opinion  on  this  point. 

In  point  of  form,  the  affidavit  should  be  direct  and  positive,  that  the 
plaintiff  has  a  subsisting  cause  of  action  :  and  therefore,  if  it  be  merely  by 
way  of  argument,  or  reference  to  books  or  accounts,  &c.,  or  as  the  party 
making  it  believes,  it  will  not  in  general  be  sufficient.(5)[A]    But  an  affidavit 

(e)  Nesbitt  v.  Pym,  1  Durnf.  &  East,  376,  (c).  Stcu-arty.  Smith,  1  Bos.  &  Pul.  132,  (a).  1 
Chit.  Rep.  464,  i?i  notis;  but  see  2  Chit.  Rep.  17.  And  for  the  form  of  an  affidavit  in  Eng- 
land, to  arrest  in  Ireland,  see  Append.  Chap.  X.  ^  6. 

(/)  1  Sel.  Prac.  2  Ed.  111.     Lee's  Prac.  Die.  2  Ed.  20. 

{g)  1  Chit.  Rep.  721.     Append.  Chap.  X.  §  7.  (/j)  1  Maule  &  Sel.  302. 

\i)  Per  Lord  Kenyan,  T.  36  Geo.  III.  K.  B.  Sed  qticere  9  and  see  1  Chit.  Rep.  463,  721,  2. 

1  Durnf.  &  East,  251.  Ilaydon  v.  Frederici,  E.  38  Geo.  III.  K.  B.  8  East,  364.  1  Chit.  Rep. 
464,  in  notis. 

(k)  2  Chit.  Rep.  16  ;  and  see  1  Chit.  Rep.  28.     2  Barn.  &  Aid.  301,  S.  C. 
(l)  4  Barn.  &  Cres.  886.     7  Dowl.  &  Rjl.  478,  S.  C.  by  three  judges,  Abbott,  Ch.  J.  dis- 
aentiente. 

(a)  4  Barn.  &  Cres.  886.  7  Dowl.  &  Ryl.  478,  S.  C.  and  see  8  East,  364.  1  Chit.  Rep. 
463.  8  Moore,  632.  And  for  other  cases,  respecting  the  ofBcer  before  whom  affidavits  made 
abroad  are  to  be  sworn,  see  1  Chit.  Rep.  463,  in  notis. 

(b)  2  Str.  1157,  1209,  1219,  1226,  1270.     1  Wils.  121,  231,  279,  339.     Say.  Rep.  59,  S.  C. 

2  Bur.  655.  3  Bur.  1447,  1687.  4  Bur.  2126.  Broivn  v.  Phepoe,  H.  24  Geo.  III.  K.  B.  I 
Durnf.  &  East,  716.  2  Durnf.  &  East,  55.  3  Durnf.  &  East,  575.  5  Durnf.  &  East,  364. 
Barnes,  87  ;  but  see  3  Wils.  154.  2  Blac.  Rep.  740,  S.  C.  C.  P.  For  the  forms  of  affidavits 
in  different  cases,  see  Append.  Chap.  X.  §  1,  &c. 

[a]  The  general  rule  as  to  certainty  is  the  same  in  this  country.      Wright  v.  Coggswell,  I 


TO  HOLD  TO  BAIL.  182 

that  tlie  defendant  is  indebted  to  the  phiintiff  in  such  a  sum,  as  lie  computes 
ify  has  been  adjudged  good.(6')  And  in  an  aflklavit  to  hold  to  bail,  made  by 
the  plaintiff's  agent,  (the  plaintiff  himself  being  abroad,)  the  debt  on  a 
judgment  being  first  positively  s^vorn  to,  a  subscciucnt  statement  that  the 
judgment  is  still  in  force,  unpaid  and  unsatisfied,  as  chponent  verUy  be- 
lieves^ will  not  vitiate.((i)  AVhere  the  plaintiff  sues  as  executor  or  admin- 
istrator, or  as  assignee  of  a  bankrupt,  it  is  sufficient  for  him,  or  a  clerk  of 
the  testator,(e)  &c.  to  swear  that  the  defendant  is  indebted,  &c.  as  appears 
by  books,  J'c.  and  as  he  verily  believes  :{f)  but  even  in  that  case,  a  mere 
reference  to  books,  &c.  unsupported  by  the  party's  belief,  is  not  sufficiently 
positive  •,{y)  and,  in  the  Exchequer,  an  affidavit  by  an  executor,  of  a  debt 
due  to  his  testator,  "  as  appears  by  a  statement  made  from  the  testator's 
books,  by  an  accountant  employed  to  investigate  the  same,  as  deponent 
verily  believes,''  is  insufficient  to  hold  a  defendant  to  special  bail.(//)  So, 
where  the  affidavit  to  hold  to  bail  was  made  by  a  bankrupt,  who  swore  that, 
at  and  before  the  date  and  suing  out  of  the  commission,  the  defendant  was 
indebted  to  deponent,  and,  as  lie  believed,  was  still  indebted  to  his  assignees, 
on  a  bill  of  exchange  accepted  by  the  defendant,  indorsed  by  the  drawer  to 
deponent,  and,  as  lie  believed,  still  unpaid ;  the  court  thought  the  affidavit 
insufficient. (/)  A  co-assignee  of  a  debt,  arising  out  of  bills  of  exchange  in 
his  own  possession,  may  sue  in  the  name  of  the  original  creditor,  and  hold 
the  defendant  to  bail  on  his  own  affidavit,  swearing  positively  as  to  all  the 
facts  required  which  are  within  his  own  knowledge,  and  to  the  best  of  his 
knowledge  and  belief,  as  to  such  as  are  within  the  knowledge  of  his  princi- 
pal and  co-assignees.(Z:)  And  where  the  assignee  of  a  bond  swore, 
that  the  obligor  was  indebted  in  ninety  pounds,  *for  pi'incipal  [  *183  ] 
and  interest  upon  the  bond,  as  he  believed,  the  affidavit  was 
deemed  sufficient  to  hold  the  defendant  to  special  bail :(«)  But  it  is  usual,  in 
such  a  case,  for  the  obligee  and  assignee  to  join  in  an  affidavit,  stating  the 
execution  of  the  bond,  the  assignment  of  it,  and  how  much  is  due  for  prin- 
cipal and  interest. (6)  And  where,  in  an  action  on  a  bond,  at  the  suit  of  the 
obligee,  for  the  benefit  of  the  assignee,  against  the  obligor,  the  affidavit  to 
hold  to  bail  was  made  jointly  by  the  plaintiff  (the  obligee,)  and  the  assignee, 
the  former  swearing  that  a  certain  sum  was  due  for  principal  and  interest  on 
the  bond,  and  that  he  had  assigned  it  to  the  latter ;  and  the  latter,  that  the 
sum  due  on  the  bond  still  remained  unpaid,  and  due  and  owing  to  him  as 

(c)  2  Bur.  1032  ;  but  see  1  Durnf.  &  East,  717.  {d)  1  Chit.  Rep.  165. 

(e)  Elberington  v. ,  M.  45  Geo.  III.  K.  B. 

(/)  4  Bur.  1992,  2283.  Brown  v.  rhepoe,  II.  24  Geo.  III.  K.  B.  1  Durnf.  &  East,  83.  4 
Durnf.  k  East,  176.  8  Durnf.  &  East,  419,  20.  2  Bos.  &  Pul.  298  ;  and  see  Append.  Chap. 
X.  I  93,4,  97,  8,  102. 

{;/)  2  Str.  1219.     1  Durnf.  &  East,  83.     1  Chit.  Rep.  92. 

(h)  1  I'rice,  402.  (j)  4  Bing.  142. 

(k)  8  Durnf.  &  East,  418.  (a)  1  Wils.  232  ;  and  see  7  Taunt.  275.     1  Moore,  24,  S.  C. 

\b)  2  Bos.  &  Pul.  365  ;  and  see  Append.  Chap.  X.  g  75. 


M'Lean,  471.  Satterlee  v.  Lynch,  6  Hill,  228.  It  should  be  suflBciently  certain  to  make  out 
a  prima  facie  case.  Postly  v.  Higgins,  2  M'Lean,  493.  Wadcx.  Judge,  6  Ala.  130.  Read  v. 
Randal,  2  Harring.  327.  Ilarman  v.  Brotherton,  1  Denio,  537.  Parker  v.  Ogden,  I  Penning. 
147.  Woodfalk  v.  Leslie,  2  Nott  <k  M'Cord,  585.  I^eu-in  v.  Breckenridge,  1  Blac.  112.  Nex>eni 
V.  Merrie,  2  Wbart.  499.  Thomas  v.  Crossin,  3  Amcr.  Law  Reg.  228,  note.  N'elson  v.  Cutter, 
3  M'Lean,  326.     Brooks  v.M'Lellan,  1  Barb.  247.     Jennings  v.  Sledge,  3  Kelly,  128. 

It  has  been  held  in  Montague  v.  Tjeatc,  7  Geo.  Rep.  306,  that  the  plaintifF  need  not  set  forth 
nor  describe  the  cause  of  action  nor  the  character  of  the  debt,  but  Xisbet,  J.,  says  expressly, 
that  the  Georgia  statute  has  superceded  the  act  of  12  Geo.  I.  This  case  is  therefore  entirely 
local. 


133  OF  THE  AFFIDAVIT 

assi"-nco ;  the  court  held  this  to  be  sufficient.  1  Moore  &  P.  179.  An 
affidavit  of  debt,  stating  that  A.  was  indebted  to  B.  for  goods  sold  and  deli- 
vered in  Jlolland^  and  that  the  debt  was  assigned  to  C.  according  to  the 
laws  of  that  country,  and  concluding  with  a  statement  that  the  assignee  of  a 
debt  may  sue  the  debtor  according  to  the  laws  of  Holland,  "  as  deponejit 
is  informed  and  believes,"  has  been  deemed  sufficient  to  hold  the  defendant 
to  bail  in  this  country.((?) 

It  is  also  requisite,  that  the  affidavit  should  be  certain  and  explicit,  as  to 
the  nature  of  the  cause  of  action :  Therefore,  an  affidavit  that  the  defendant 
is  indebted  to  the  plaintiff  in  such  a  sum,  without  more,(c?)  or  generally 
upon  promises, {e)  or  in  so  much  upon  a  bond  for  performance  of  cove- 
nants,{f)  or  upon  breach  of  articles{g)  or  as  a  balance  of  accounts  be- 
tween the  parties,(7j)  has  been  holden  to  be  too  general.  So  an  affidavit  to 
hold  to  bail,  stating  only  that  the  defendant  is  indebted  to  the  plaintiff,  "  for 
goods  sold  and  delivered,  (without  saying  by  the  plaintiff  to  the  defendant,) 
and  as  the  acceptor  of  a  bill  of  exchange,"(^)  or  "  for  goods  sold  and  deli- 
vered (not  saying  by  the  ijlaintiff,)  to  the  defendant," (A;)  or  "for  goods 
sold  and  delivered /or  the  defendant, "(?)  is  insufficient.  And,  in  the  King's 
Bench,  an  affidavit  to  hold  to  bail,  stating  that  the  defendant,  being  captain 
of  a  ship,  was  indebted  to  plaintiff,  "  for  work  and  labour  of  plaintiff  done 
on  board  the  ship,  and  for  materials  found  by  plaintiff  and  used  therein,  and 
for  goods  sold  and  delivered,  and  money  paid  by  plaintiff,  at  the  request  of 
defendant,"  was  holden  to  be  defective,  in  not  stating  that  the  work  was 
done,  or  money  paid  for,  or  the  goods  sold  to  defendant. (?w)  But  where  it 
was  stated  in  the  affidavit,  that  the  defendant  was  indebted,  "  for  the  use 
and  occupation  of  a  certain  dwelling  house,  &c.  of  the  plaintiff,  held  and 
enjoyed  by  the  defendant  as  tenant  thereof,"  without  saying  that  he  was 
tenant  to  the  plaintiff,  it  was  deemed  sufficient. (w)  So,  in  the  Common  Pleas, 
an  affidavit  to  hold  to  bail,  stating  the  debt  to  be  "  for  money  paid  laid  out 
and  expended,  and  wages  due  to  the  plaintiff  for  his  services  on  board  the 
defendant's  ship,"  is  sufficient,  without  expressly  stating  that  the  wages 
were  due  from  the  defendant. (o)  So  an  affidavit  to  hold  to  bail,  which 
states  that  the  defendant  is  indebted  to  the  plaintiff,  for  the  hire  of  divers 
carriages,  &c.  of  the  plaintiff,  to  and  for  the  use  of  the  defendant, 
[  *184  ]  is  sufficient,  without  stating  that  they  were  hired  of  the  *plaintiff, 
or  by  whom  they  were  hired. (a)  So,  it  has  been  deemed  sufficient 
to  state,  in  an  affidavit  to  hold  to  bail,  that  the  defendant  is  indebted  to  the 
plaintiff  in  such  a  sum,  "  for  money  had  and  received  on  account  of  the 
plaintiff,"  without  adding,  that  it  was  received  by  the  defendant.(b)  And, 
in  an  affidavit  of  debt  for  money  paid  to  the  use  of  the  defendant,(cc)  or  for 
work  and  labour  as  the  defendant's  servant,((icZ)  it  is  not  necessary,  in  the 
Common  Pleas,  to  state  that  it  was  at  his  request ;  but  it  is  otherwise  in  the 

(c)  4  DoM'l.  &  Ryl.  180.  {d)  1  H.  Blac.  10. 

(e)  Dou^.  467.  (/)  Say.  Rep.  109  ;  and  see  4  Maule  &  Sel.  330. 

\g)  Booker  v.  Friend,  cited  in  Say.  Rep.  109.     Fer.  Ciir.  M.  41  Geo.  III.  K.  B. 

(A)  4  Taunt.  154.     2  Chit.  Rep.  15.  [i)  7  East,  194. 

(A:)  8  East,  106.     11  East,  315.     6  Taunt.  192.     1  Marsh.  535  S.  C. 

{l)  2  Barn.  &  Aid.  596.     1  Chit.  Rep.  331,  S.  C. 

{m)  2  Maule  &  Sel.  603.  {n)  9  Price,  322. 

(o)  1  Marsh.  317.  (a)  6  Taunt.  389.     2  Marsh.  83,  S.  C. 

[b)  8  Durnf.  &  East,  338 ;  and  see  id.  27. 

(cc)  5  Taunt.  704,  751.     1  Marsh.  315,  S.  C.     8  Moore,  332.     1  Bing.  338,  S.  C.  accorJ. 

(fW)  5  Taunt.  756.     1  Marsh.  317,  (a).  S.  C.     6  Taunt.  389,  S.  P. 


TO  HOLD  TO  BAIL.  184 

King's  Bench. (<'^)  An  affidavit  made  l3y  a  married  woman,  that  the  defend- 
ant is  indebted  "  for  tlie  rent  of  lodiijings,  and  for  money  lent  ly  her  to  the 
defendant,"  was  held  suflicient ;  although  it  did  not  state  to  whom  the 
lodgings  were  let,  and  the  person  making  the  affidavit  was  herself  incapable 
of  lending  money ;  for  she  might  have  lent  it  as  agent  to  her  husband. (^) 
And  an  affidavit  that  R.  Patten  is  indebted  for  money  paid  to  the  use  of 
the  said  II.  JaeJcson,  is  well  enough. (//)  But  an  affidavit  stating  the 
defendant  to  be  indebted  to  the  plaintiff,  for  money  had  and  received  to 
the  use  of  his  wife;(/i)  or  that  E.  I.  is  indebted,  kc,  for  money  due  from 
the  said  G.  P.,  E.  I.,  kc.,{i)  is  insufficient.  An  affidavit  to  hold  to  bail 
on  a  bill  of  exchange,  has  been  deemed  sufficient,  though  it  do  not  state 
in  what  character  the  plaintiff  sues,  whether  as  payee  or  indorsee  :{k)  And 
an  affidavit,  stating  that  the  defendant  was  indebted  to  the  plaintiff  on  a 
bill  of  exchange,  payable  to  a  third  person,  at  a  day  now  past,  was  deemed 
sufficient ;  without  stating  at  what  day  the  bill  was  payable,  or  showing 
the  connexion  between  the  payee  and  the  plaintiff.(/)  But  an  affidavit, 
that  the  defendant  is  indebted  to  the  plaintiff,  "  as  indorsee  of  a  promis- 
sory note,  or  bill  of  exchange,  made  or  accepted  by  defendant,"  without 
stating  the  date  of  the  note  or  bill,  or  that  it  was  payable  on  demand,  or 
at  a  day  past,  is  insufficient  :(7?i)[l]  and  it  seems  that  the  affidavit  must 
state  in  what  character  the  defendant  is  sued.(??.)  So,  an  affidavit  stating 
the  defendant  to  be  indebted  to  the  plaintiff,  on  a  promissory  note,  drawn 
in  favour  of  J.  E.  &  Co.,  and  duly  indorsed  to  the  plaintiff,  has  been 
deemed  insufficient. (o) 

In  an  action  on  a  money  bond,  the  affidavit  to  hold  to  bail  should  regu- 
larly state  that  the  defendant  is  indebted,  &c.,  for  principal  and  interest 
due  on  a  bond,  bearing  date,  &c.,  and  made  and  entered  into  by  the 
defendant  to  the  plaintiff,  in  the  penal  sum,  &c.,  conditioned  for 

the  payment  *of Z.,  and  interest,  at  a  certain  day  now  past. (a)    [  *18o  ] 

And  where  the  affidavit  stated,  that  the  defendant  was  indebted, 
&c.,  in  a  certain  sum,  for  pi'incipal  and  interest  due  on  a  bond,  made  by 
the  defendant,  in  a  greater  penal  sum,  it  was  holden  to  be  good ;  though 
it  did  not  state  the  condition  of  the  bond  to  be  for  the  payment  of 
raoney.(6)  But  the  affidavit  must  show  that  the  bond  was  then  due  and 
payable;  otherwise  the  defendant  will  be  discharged  on  common  bail.(t') 
And  an  affidavit,  stating  that  defendant  is  indebted  to  the  plaintiff  in 
6000/.  "  upon  a  bond,  bearing  date,  &c.,  and  made  and  entered  into  by 
defendant  to  plaintiff,  in  the  penal  sum  of  25,000/.,"  without  showing  the 
condition  of  the  bond,  was  holden  insufficient ;  and  the  court  discharged 

{ce)  5  Maule  &  Sel.  446.  (/)  Per.  Cur.  T.  40  Geo.  III.  K.  B. 

\q^  3  Maule  &  Sel.  178.  {h)  4  Bing.  50. 

((■)'  1  Dowl.  &Ryl.  150. 

\k)  7  East,  94,  194.  3  Smith  R.  117,  S.  C.  K.  B.  7  Taunt.  171.  2  Marsh.  483,  S.  C.  C. 
P.  accord,  but  see  6  Taunt.  25.  1  Marsh.  424,  S.  C.  6  Taunt.  531.  2  Marsh.  231,  S.  C. 
contra. 

(l)  1  Chit.  Rep.  648  ;  and  see  4  Moore,  18.  5  Moore,  52.  2  Brod.  &  Bing.  338,  S.  C.  Id. 
343.     2  Dowl.  &  Ryl.  148. 

(ot)  2  Maule  &  Sel.  148,  475.  3  Barn.  &  Aid.  495,  K.  B.  7  Taunt.  171.  2  Marsh.  483,  S. 
0.     4  Moore,  18,  C.  P.  accord,  but  see  1  New  Rep.  C.  P.  157,  contra. 

(n)  2  Marsh.  231.     6  Taunt.  531,  S.  C.  (o)  4  Bing.  114. 

(a)  Append.  Chap.  X.  g  73. 

(6)  7  Taunt.  275.     1  Moore,  24,  S.  C.  (c)  7  Dowl.  &  Ryl.  232. 

[1]  And  an  affidavit  of  debt,  stating  that  several  persons  are  jointly  indebted  to  the  plain- 
tiff accepted  in  a  particular  form,  by  thctn,  or  one  of  them,  is  insufficient.     10  Moore,  323. 


2g5  OF  THE  AFFIDAVIT 

the  defendant  on  common  bail.((;Z)  So  an  affidavit  to  hold  to  bail,  in  an 
action  against  a  surety  on  an  arbitration  bond,  must  set  out  the  condition, 
and  show  that  a  demand  of  the  money  was  made  on  the  lyrincipal,  if 
required  by  the  award,  (e) 

In  holding  a  defendant  to  bail  for  stipulated  damages,  for  not  perform- 
ing an  agreement,  it  is  necessary  that  the  affidavit  should  state  what  the 
agreement  was,  and  the  breach  of  it.(/)  And  as  a  party  cannot  be  held  to 
bail  for  a  penalty,  but  only  for  the  sum  secured  by  it,  an  affidavit  stating 
that  the  defendant  was  indebted  to  the  plaintiff  in  lOOOZ.  "under  an  agre- 
ment  in  writing,  whereby  the  defendant  undertook  to  pay  the  plaintiff  the 
balance  of  accounts,  &c.,  which  balance  is  still  due  and  unpaid,"  is  insuf- 
ficient, without  stating  that  the  balance  was  1000Z.(</)  So  an  affidavit, 
that  the  defendant  is  indebted  to  the  plaintiff  in  50^.  "  by  virtue  of  an 
agreement,  whereby  he  bound  himself  in  that  sum  for  the  performance  of 
the  said  agreement,  and  which  he  had  neglected  and  refused  to  perform," 
without  stating  what  the  agreement  was,  or  the  breach  of  it  is  not  suffi- 
cient.(/i)  So  an  affidavit,  stating  that  the  defendant  is  indebted  to  the 
plaintiff  in  so  much  for  interest  money,  under  and  by  virtue  of  an  agree- 
ment under  the  hand  of  the  defendant,(e)  or  for  his  subscription  as  mem- 
ber of  a  certain  reading  club,  according  to  the  rules  and  regulations  of 
the  same,(A;)  is  not  sufficient.  So,  if  a  tenant  bind  himself  in  a  penalty, 
for  performance  of  repairs  within  a  certain  time,  the  court  will  not  permit 
him  to  be  arrested  for  the  penalty,  upon  an  affidavit  which  does  not  show 
in  what  respect,  and  to  what  amount,  he  has  violated  his  contract.  (^)  So, 
where  an  affidavit  stated,  that  the  defendant  was  indebted  to  the  plaintiff 
in  2457.  "for  money  lent  by  plaintiff  to  defendant,  for  the  use  of  another, 
and  for  which  the  defendant  promised  to  be  accountable,  and  repay  or 
cause  to  be  paid  or  secured  to  the  plaintiff,  &c.,"  the  defendant  was  dis- 
charged on  common  bail ;  it  not  appearing  in  the  affidavit,  but  that  the 

money  had  been  secured,  according  to  the  agreement. (??i)  And 
[  *186  ]    where  an  affidavit  stated,  *that  the  defendant  was  indebted  to  the 

plaintiff,  upon  a  written  agreement  to  marry  plaintiff,  at  a  time 
specified,  or  pay  her  1000?.,  and  that  he  had  not  done  either,  although  the 
time  had  elapsed,  and  plaintiff  was  ready  and  willing  to  marry  defendant, 
and  requested  him  to  marry  her;  the  court  held  that  this  was  insufficient, 
as  they  can  take  nothing  by  intendment  in  an  affidavit  of  debt ;  and  here, 
no  consideration  for  the  defendant's  promise  was  shown. (a)[l]  But,  in 
the  Common  Pleas,  an  affidavit  to  hold  to  bail,  stating  the  defendant 
to  be  indebted,  "  for  damages  awarded,  and  for  costs  and  expenses 
taxed  and  allowed,"  is  sufficiently  certain;  for  it  will  be  inferred,  that 
the  award  and  taxation  are  such  as  will  support  the  action. (5)  And, 
in  that  court,  an  affidavit  stating  that  the  defendant  was  indebted  to 

(f^)  4Maule  &Sel.  330;  but  see7  Taunt.  275.     1  Moore  24,  S.  C.     Ante,\m. 

(e)  7  Taunt.  405.     1  Moore,  110,  S.  C. 

(/)  6  Durnf.  &East,  13.     Per  Cwr.  H.  41  Geo.  III.  K.  B.     2  East,  409. 

(q\  6  Durnf.  &  East,  217.  (h)  2  East,  409. 

(t)  10  East,  358.  {^)  1  Dowl.  &  Ryl.  150.  {I)  5  Taunt.  247. 

(to)  5  Durnf.  &  East,  552  ;  and  see  2  Bos.  &  Pul.  48. 

(a)  1  Barn.  &  Cres.  108.     2  Dowl.  &  Ryl.  69,  S.  C. 

(6)  1  Bos.  &  Pul.  365  ;  and  see  6  Dowl.  &  Ryl.  15. 

[1]  So,  an  affidavit  of  debt  on  an  award,  directing  money  to  be  paid  by  the  defendant  to 
the  plaintiff  on  demand,  without  alleging  a  demand,  was  deemed  insufficient.  7  Barn.  & 
Cres.  494.     1  Man.  &  Ryl.  324,  S.  C. 


TO  HOLD  TO  BAIL.  18G 

the  plaintiff,  "  upon  and  by  virtue  of  a  certain  charter-party  of  affreight- 
ment, bearing  date,  kc,  for  and  on  account  of  the  hire  of  a  ship,  let 
to  hire  by  the  plaintiff  to  the  defendant,  and  by  hira  taken,  for  a  cer- 
tain voyage  from to  ,"  was  deemed  sufficient.(c)     So, 

an  affidavit  to  hold  to  bail,  stating  that  the  defendant  was  indebted 
to  the  plaintiff,  in  trust  for  the  deponent,  under  a  deed,  by  Avhich  the 
defendant  had  covenanted  to  pay  money,  "  at  certain  times,  and  on  cer- 
tain events,  now  past  and  happened,"  was  holden  to  be  sufficient. ((/)  In  the 
Exchequer,  a  defendant  cannot  be  held  to  bail,  on  an  aflidavit  stating  him 
to  be  indebted  to  the  plaintiff,  "in  respect  to  a  certain  sale  of  land,  in  pos- 
session of  the  defendant,"  2  Younge  &  J.  2.  And  an  affidavit  to  hold  to 
bail,  stating  that  the  defendant  was  indebted  to  the  plaintiff,  by  virtue  of 
certain  articles  of  agreement,  by  which  the  latter  agreed  to  sell,  and  the 
former  to  purchase  certain  lands,  and  that  defendant  had  been  let  into 
possession  in  pursuance  of  the  agreement,  was  deemed  insufficicirt,  with- 
out stating  that  a  conveyance  had  been  tendered  to  the  defendant.     Id.  81. 

It  was  formerly  sufficient,  in  order  to  hold  to  bail  in  trover^  to  make  a 
general  affidavit,  that  the  defendant  had  possessed  himself  of  divers  goods 
and  chattels  of  the  plaintiff,  of  the  value,  &c.  which  he  had  refused  to  de- 
liver to  the  plaintiff,  and  had  converted  the  same  to  his  own  use.(e)  But 
an  affidavit,  stating  that  the  defendant  was  indebted  to  the  plaintiff  "  in 
trovcr,'\f)  or  that  the  defendants  had  possessed  themselves  of  certain 
goods,  &c.  of  the  plaintiff,  (md  of  other  persons^''\g)  or  that  "the  plain- 
tiff's cause  of  action  against  the  defendant  was  for  converting  and  dispos- 
ing of  divers  goods  of  the  plaintiff,  to  the  value  of  250Z.  which  he  refused 
to  deliver,  though  the  plaintiff  had  demanded  the  same,  and  that  neither 
the  defendant  nor  any  person  on  his  behalf  had  offered  to  pay  to  the  plain- 
tiff the  250?.  or  value  of  the  goods, "(7i)  has  been  deemed  insufficient.  And 
to  obtain  a  judge's  order,  under  the  late  rule,(i)  the  affidavit  should  fully 
set  forth  the  circumstances  under  which  the  defendant  had  possessed  him- 
self of  the  goods,  the  particulars  of  which  they  consist,  and  the  value  of 
them,  and  in  what  manner  the  defendant  has  converted  them  to  his  own 
use.  In  order  to  hold  to  bail  in  trover  for  a  bill  of  exchange,  it  should  be 
stated  that  the  bill  remains  unpaid. (A:)  And  an  affic^avit  to  hold  to  bail  in 
troverhy  the  assignees  of  a  bankrupt,  stating  that  "the  defendant  possessed 
himself  of  the  goods,  which  he  refused  to  deliver,  and  has  converted  them 
to  his  own  use,  as  appears  by  the  bankrupt's  books  of  account, 
and  by  the  *letters  of  S.  (the  agent,)  and  letters  of  the  plaintiffs,  [  *187  ] 
as  deponent  believes^"  was  holden  not  to  be  sufficiently  certain, 
to  show  a  conversion ;  and  therefore  the  court  discharged  the  defendant 
on  common  bail. (a) 

An  affidavit  to  hold  to  bail  on  the  lottery  act,  must  specify  the  nature  of 
the  offence,  and  aver  that  the  defendant  has  incurred  the  forfeiture  :(h)  but 
the  offence  need  not  be  described  circumstantially,  nor  is  the  plaintiff 
obliged  to  swear,  that  the  defendant  is  indebted  to  him  to  the  amount  of 

(c)  8  Moore,  107.     1  Bing.  242,  S.  C.  (d)  3  Bing.  126. 

{e)  Append.  Chap.  X.  ^  82,  &c.  (  f)  1  H.  Blac.  218. 

('/)  Per  Cur.  T.  42  (leo.  III.  K.  B.  (/()  7  Dnrnf.  &  East,  550. 

(i)  R.  H.  48  Geo.  III.  K.  B.  C.  P.  &  Excheq.  Ante,  172.    And  for  the  form  of  an  aflidavit 
ia  trover,  since  the  above  rule,  see  Append.  Chap.  X.  ^  85. 
{k)  7  Durnf,  &  East,  321. 

(a)  2  Maulc  &  Sel.  5G3.  [h]  1  Durnf.  k  East,  705. 


187 


OF  THE  AFFIDAVIT 


the  penalty  :(c)  In  such  an  affidavit,  several  offences  of  the  same  nature 
may  be  included  :(c?)  and  it  need  not  state  that  the  defendant  received  any 
consideration  for  making  the  insurances,  or  set  out  the  plaintiff's  author- 
ity to  bring  the  action,  (ee) 

By  the  Bank  acts,(_^)  which  were  passed  during  the  late  reign,  for  re- 
straining cash  payments,  the  affidavit  to  hold  to  bail  was  required  to  state, 
that  no  offer  had  been  made  to  pay  the  sum  sworn  to,  in  notes  of  the  gov- 
ernor and  company  of  the  Bank  of  England,  expressed  to  be  payable  on 
demand,  (fractional  parts  of  the  sum  of  20s.  only  excepted.)(^)  These  acts 
of  parliament  were  construed  to  extend  to  affidavits  made  in  Ireland,  for 
the  purpose  of  being  used  in  this  country  :(/i)  And  if  an  affidavit  was  made 
here,  to  be  used  in  Ireland,  it  must  have  negatived  the  tender  in  Irish,  as 
English  bank  notes.  But  the  acts  did  not  apply  to  the  case  of  a  defend- 
ant holden  to  bail  in  trover,  which  could  only  be  done  under  a  judge's  or- 
der, on  an  affidavit  of  the  circumstances. (i)  By  these  acts,(^)  "  no  action 
or  suit  could  have  been  prosecuted  against  the  governor  and  company  of 
the  Bank  of  England,  during  the  continuance  of  the  restriction  thereby 
imposed  on  payments  by  the  said  governor  and  company  in  cash,  to  com- 
pel payment  of  any  note  of  the  said  governor  and  company,  expressed  to 
be  payable  on  demand,  or  of  any  note  of  the  said  governor  and  company, 
made  payable  otherwise  than  on  demand,  or  of  any  sum  of  money  whatso- 
ever by  the  said  governor  and  company,  which  they  were  willing  to  pay 
in  their  notes  expressed  to  be  payable  on  demand."  But  in  other  cases, 
bank  notes,  if  objected  to,  were  not  made  a  legal  tender  by  these  acts:(Z) 

though  they  are  so  considered,  if  not  objected  to  at  the  time.(7;z) 
[  *188  ]      *It  was  not  necessary,  however,  that  the  affidavit  should  be  very 

particular,  in  negativing  a  tender  in  bank  notes  :  for,  by  the  stat- 
ute 43  Geo.  III.  c.  18,  §  2,  it  was  enacted,  that  "  in  case  of  any  applica- 
tion to  any  of  his  majesty's  courts  in  Westminster  hall,  by  any  person  who 
had  been  or  should  be  held  to  special  bail,  under  or  by  virtue  of  any  pro- 
cess out  of  such  court,  to  be  discharged  upon  common  bail,  by  reason  of 
any  defect  in  such  part  of  the  affidavit  on  which  he  was  so  held  to  bail, 
as  negatived  or  was  intended  to  negative  any  offer  having  been  made  to 
pay  the  sum  in  such  affidavit  mentioned,  in  notes  of  the  governor  and  com- 
pany of  the  bank  of  England,  the  person  or  persons  making  such  applica- 
tion so  to  be  discharged,  should  not  be  entitled  to  such  discharge,  unless 

(c)  Id.  2  Durnf.  &  East,  654.  {d)  4  Durnf.  &  East,  228. 

{ee)  6  Durnf.  &  East,  640  ;  and  see  2  H.  Blac.  17.     Append.  Chap.  X.  ^81. 

(/)  37  Geo.  III.  c.  45,  §  9.  37  Geo.  III.  c.  91,  I  8.  38  Geo.  III.  c.  1,  I  8.  42  Geo.  III. 
c.  40.  43  Geo.  III.  c.  18,  |  2  ;  and  see  the  statutes  51  Geo.  III.  c.  127  ;  52  Geo.  III.  c.  50 ; 
53  Geo.  III.  c.  5  ;  and  54  Geo.  III.  c.  52,  for  preventing  bank  notes  from  being  received  for 
less  than  the  sura  specified  therein,  &c. ;  and  stat.  59  Geo.  III.  c.  23,  for  restraining,  and  id. 
c.  49  ;  1  &  2  Geo.  IV.  c.  26,  for  the  gradual  resumption  of  cash  payments.  And  for  the 
determinations  on  these  acts,  see  the  eighth  edition  of  this  work,  p.  187,  &c. 

{g)  Append.  Chap.  X.  §  1. 

(A)  Nesbitt  v.  Fym,  7  Durnf.  &  East,  376,  in  notis ;  Stewart  v.  Smith,  1  Bos.  &  Pul.  132,  in 
nolis,  S.  P.     Ante,  181. 

(i)  4  Price,  307.     Ante,  171,  2, 186. 

[k)  See  stat.  37  Geo.  III.  c.  45,  ^  2,  and  the  other  statutes  referred  to  in  note  (/), 
opposite. 

{I)  2  Bos.  &  Pul.  526.  And  see  the  statute  56  Geo.  III.  c.  68,  ^  11,  by  which  gold  coin  is 
declared  to  be  the  only  legal  tender. 

{m)  3  Durnf.  k  East,  554.  4  Esp.  Rep.  267.  Per  Bidler  J.  in  WUb;/  v.  Warren,  Sit.  Mid. 
after  M.  T.  28  Geo.  III.  K.  B.,  and  he  held,  that  the  same  doctrine  applied  to  a  draft  on  a 
banker. 


TO  HOLD  TO  BAIL.  188 

he  she  or  they  should  at  the  same  time  make  proof,  by  affidavit,  that  the 
whole  sum  of  money,  for  which  he  she  or  they  had  been  so  held  to  bail, 
had  been  or  was,  before  such  holding  to  bail,  offered  to  be  paid,  either 
wholly  in  such  notes,  or  partly  in  such  notes  and  partly  in  lawful  money 
of  this  kingdom."  This  statute,  however,  was  not  intended  to  remedy  the 
total  omission  of  a  clause  in  the  affidavit,  negativing  a  tender  in  bank  notes, 
but  merely  to  cure  formal  slips. (a)  And  by  the  statute  50  Geo.  III.  49, 
§  1,  the  restrictions  on  payments  in  cash,  under  the  several  bank  acts,  finally 
ceased  and  determined  on  the  first  day  of  3Ia!/  1823:  So  that  it  is  no 
longer  necessary  to  negative  a  tender  of  the  debt  in  bank  notes,  in  an  affi- 
davit to  hold  to  bail. 

Lastly,  it  is  a  general  rule,  that  the  affidavit  to  hold  to  bail  should  be 
single :  and  therefore  if  it  contain  two  or  more  different  causes  of  complaint, 
that  cannot  be  joined  in  the  same  action,  either  at  the  suit  of  one  or  several 
plaintiffs, (6)  or  against  one(c?)  or  scveral(f?)  defendants,  it  is  irregular,  and 
the  courts  on  motion  will  aet  aside  the  proceedings. (c) 

If  there  be  no  affidavit,  or  the  affidavit  be  defective,{f)  or  materially 
different  from  the  process(^)  or  declaration, (^)  or  not  dn\j  filed,{h)  or  if 
the  sum  sworn  to  be  not  indorsed  on  the  writ,(^)  the  court  will  discharge 
the  defendant  upon  common  bail.  But  if  the  affidavit  be  merely  informal, 
the  defendant  cannot  object  to  it,  after  he  has  voluntarily  given]  a  bail- 
bond,(A;)  put  in(^)  or  perfected(m)  bail  above,  taken  the  declara- 
tion out  of  the  office,(?i)  *pleaded  to  the  action, (aa)  or  let  judg-  [*189] 
ment  go  by  default. (6J)  And  it  is  a  rule  in  the  King's  Bench, 
that  when  the  affidavit  to  hold  to  bail  is  regular,  the  court  will  not  go  out 
of  it,  or  prejudge  the  cause,  by  entering  into  the  merits  upon  which  it  is 
founded. ((?c)[a]  The  plaintiff,  therefore,  in  that  court,  must  stand  or  fall 
by  his  affidavit ;  it  being  the  constant  and  uniform  practice  of  the  court, 
in  cases  of  arrest,  not  to  receive  a  supplemental  or  explanatory  affidavit 
on  the  part  of  the  plaintiff,  nor  a  counter  or  contradictory  one  on  the  part 

(a)  Wood  V.  Jenkins,  M.  45  Geo.  III.  K.  B.  2  Smith,  R.  15G,  S.  C.  and  see  1  Bos.  &  Pul. 
17G.     7  Taunt.  405.     1  Chit.  Rep.  58,  (a).  59,  60,  161,  (a).     2  Chit.  Rep.  18.     9  Price,  322. 

(b)  6  Durnf.  &  East,  688.  (c)  5  Bur.  2690. 

{d)  Doug.  217.  Fry  v.  Montgomery  and  others,  M.  26  Geo.  III.  K.  B.  4  Durnf.  <k  East, 
577,  695.  5  Durnf.  &  East,  254,  722.  4  East,  589.  1  Maule  &  Sel.  55.  Barnes,  70.  1 
Bos.  &  Pul.  49.     2  New  Rep.  C.  P.  82.     1  Marsh,  274. 

[e)  See  further,  as  to  the  affidavit  to  hold  to  bail,  Petersd.  Part  I.  Chap.  V. 
(/)  7  Durnf.  &  East,  375.  (g)  Post,  Chap.  XII. 

(h)  Ilussey  v.  Baskerville,  cited  in  2  "Wils.  225.  2  Taunt.  163.  "l  Maule  &  Sel.  230.  2 
.Moore,  192.     8  Taunt.  242,  S.  C. 

(f)  2  Wils.  69.  (/.-)  7  Durnf.  &  East.  375.     2  Dowl.  &  Ryl.  252. 
(/)  1  East,  330.    1  Maule  &  Sel.  230.    In  the  hxttcr  case,  Mr.  Justice  Bayhij  observed,  that 

there  was  not  any  instance,  in  which  the  party,  after  putting  in  bail  above,  had  been  per- 
mitted to  take  advantage  of  a  defect  in  the  aflSdavit  to  hold  to  bail.  See  also  6  Taunt.  185, 
C.  P.  accord. 

fm)lEast,  81.     1  Bos.  &  Pul.  132,  S.  P.  (n)  7  Durnf.  &  East,  451. 

\aa)  7  Durnf.  &  East,  376,  in  notis:  and  see  1  East  77. 

{bb)  8  Durnf.  &  East,  77.     1  East,  19,  in  notis,  S.  C. 

(cc)  1  Sall<.  100,  but  see  Forrest,  153.  3  East,  169.  2  Chit.  Rep.  20.  5  Barn.  &  Aid. 
904.     13  Price,  8.     M'Clel.  2,  S.  C.     6  Dowl.  &  Ryl.  24. 

[a]  See  Samson  v.  Kilse,  1  Browne,  341.  Oliver  v.  Parrish,  2  Wash.  C.  C.  R.  462.  Cham- 
pion v.  Poss,  4  lb.  325.  Comly  v.  Kniyht,  1  Browne,  286.  An  affidavit  need  not  be  signed 
by  the  affiant  to  render  it  valid,  provided  it  be  sworn  to  and  so  certified  by  the  proper  officer. 
Mellcus  v.  ShaJTer,  3  Denio,  60.  (iaddis  v.  Durashy,  1  Green,  N.  J.  Rep.  325.  llilsman 
V.  Garrard,  1  Ilnrr.  124.  And  if  it  begin  with  the  deponent's  name  it  is  a  sufficient  signing. 
Huffv.  Spircr,  3  Caines,  190.  Jackson  v.  Viryil,  3  Johns.  540.  Neither  is  a  date  essential, 
and  if  stated  erroneously,  the  mistake  may  be  shown.     Freas  v.  Jones,  3  Green,  20. 

Vol.  I.— 13 


189 


OF  THE  PRIVILEGE 


of  the  defendant.('itZ)[A]  Even  an  affidavit  of  the  plaintiff's  confession, 
that  the  defendant  owes  him  nothing,  will  not  be  received.(ee)  This  prac- 
tice however  must  be  understood  with  reference  to  the  merits  of  the  cause; 
it  being  competent  to  the  defendant  to  show  by  a  counter  affidavit,  that 
he  was  privileged  from  arrest,  or  had  been  before  holden  to  bail  in  this 
country,  for  the  same  cause  of  action. (^^■)[b] 

In  the  Common  Pleas,  where  the  affidavit  to  hold  to  bail  is  defective,  by 
reason  of  the  omission  of  some  circumstance  necessary  to  complete  it,  as 
where  it  is  not  sworn,  in  an  affidavit  made  by  an  executor,  that  he  believes 
the  debt  to  be  due,(<7^)  or  that  the  defendant  acknowledged  an  account 
stated,(7i7i)  &c.,  the  court  will  permit  the  deficiency  to  be  supplied  by  a 
supplemental  affidavit.  And  so,  where  the  matter  of  bail  is  discretionary, 
as  in  an  action  for  a  malicious  prosecution,(2V)  &c.,  the  court,  in  deter- 
mining whether  an  order  shall  be  granted  for  special  bail,  will  permit  a 
conti'adictory  affidavit  to  be  read  on  the  part  of  the  defendant.  But 
where  the  affidavit  is  a  mere  nullity,  as  being  made  by  a  person  convicted 
of  felony,(^)  or  does  not  contain  any  positive  oath,(?)  or  cause  of 
action, (w)  the  court  will  not  receive  a  supplemental  affidavit :  nor  will 
they  try  the  merits  of  the  cause  on  a  contradictory  one,  except  in  cases 
where  the  matter  of  bail  is  discretionary.(n)  In  the  Exchequer,  if  there 
be  probable  ground  to  suspect  that  the  securities  upon  which  the  defend- 
ant is  held  to  bail  are  illegal,  the  court,  it  is  said,  will  discharge  him  upon 

filing  common  bail.(o) 
[*190  ]        *An  affidavit  to  hold  to  bail  continues  in  force  for  a  year  ;[c] 

during  which  period  the  defendant  may  be  arrested,  on  the  first 
or  any  subsequent  process  sued  out  thereon. (a)  But  an  affidavit  made 
more  than  a  year  before  the  suing  out  of  the  writ,  is  not  sufficient  to 
authorize  an  arrest,  in  the  King's  Bench ;  for  the  act  requires  an  oath  of 
a  subsisting  debt,  at  the  time  of  suing  out  the  process ;  and  after  a  year, 
it  will  be  presumed  that  the  debt  has  been  paid,  if  nothing  appears  to  the 
contrary. (6)    It  is  therefore  necessary  that  a  new  affidavit  should  be  made, 

{dd)  2  Str.  1157.     I  Wils.  335.     Say.  Rep.  53,  S.  C.     1  Ken.  424.     2  Wils.  225.     1  Blac. 

Rep.  192.    2  Bur.  655.    4  Bur.  2017.'  Doug.  450,  467.     v.  Malone,  M.  22  Geo.  III.  K. 

B.  Jacques  v.  Kixon,  E.  26  Geo.  III.  K.  B.  1  Durnf.  &  East,  716.  5  Durnf.  &  East,  552,  3. 
Spragg  v.  Young,  H.  35  Geo.  III.  K.  B.  2  Maule  &  Sel.  563.  7  Taunt.  408.  1  Moore,  112, 
S.  C.     4  Bing.  148 ;  but  see  2  Blac.  Rep.  850,  886.     1  H.  Blac.  301,  C.  P. 

(ee)  1  Wils.  335,  and  see  Forrest,  155.     2  Chit.  Rep.  20,  (a). 

Iff)  2  East,  453.  [gg)  2  Blac.  Rep.  850. 

(AA)  Barnes,  100,  and  see  z(/.  87.     1  H.  Blac.  248.    1  Bos.  &  Pul.  36,  228.     2  Bos.  &  Pul. 

110,  298. 

(m)  Cas.  Pr.  0.  P.  148.  Pr.  Reg.  66.  Barnes,  76,  S.  C.  and  see  Pr.  Reg.  63.  Barnes,  61, 
S.  C.     Id.  72,  87. 

(k)  Pr.  Reg.  49.     Barnes,  79,  S.  G.     1  Chit.  Rep.  167.  {I)  2  Wils.  224. 

{m)  1  H.  Blac.  10.     7  Taunt.  405.     1  Moore,  110,  S.  C.     4  Moore,  18,  19. 

(«)  Barnes,  61.  Pr.  Reg.  63,  S.  C.  Barnes,  109.  7  Taunt.  235.  2  Marsh.  548,  S.  C. 
4  Moore,  4. 

(o)  Forrest,  153.  [a)  Ante,  154,  176. 

\b)  2  Str.  1270.    Pitches  v.  Davy  and  others,  H.  44  Geo.  III.    Stewart  v.  Freeman,  E.  47  Geo- 

111.  K.  B.  but  see  1  Bos.  &  Pul.  176,  G.  P. 

[a]  Tower  v.  Kingston,  1  Browne,  33.  Eldridge  v.  Robinson,  4  Serg.  &  R.  548.  Campbell 
V.  Grove,  2  Johns.  Cases,  105.     Norton  v.  Barnum,  20  Johns.  337. 

[b]  Generally,  counter  affidavits  are  not  admitted  where  the  affidavit  is  positive  as  to  the 
debt  or  merits.  Welsh  v.  Hill,  2  Johns.  100  ;  Jordan  v.  Jordan,  6  Wend.  524.  Uart  v. 
Faulkner,  5  Johns.  362,  admits  the  principle,  but  that  case  was  not  within  it. 

[c]  Corrin  v.  Wellington,  2  Miles,  267. 


FROM  ARREST.  190 


before  a  writ  is  sued  out,  when  more  than  a  year  has  elapsed  since  the 
making  of  the  former  affidavit. [a] 


Having  thus  shown  for  wliat  cause  of  action,  and  upon  what  affidavit, 
the  defendant  may  he  arrested  and  heUl  to  special  bail,  it  will  next  be 
proper  to  consider  the  j'^rivilege  from  arrest ;  which  is  personal,  tempo- 
rary, or  local  :{c)  and  either  existed  at  common  laAv,  or  was  created  by  act 
of  parliamcnt.[B] 

Where  the  defendant  is  not  subject  to  a  capias,  he  cannot  of  course  be 
arrested  and  held  to  special  bail.  Thus,  in  the  first  place,  not  to  mention 
the  sovereign,  it  is  holdcn  that  the  servants  in  ordinary  of  the  kiny,  or 
queen  regent,  though  subject  to  a  capias,  ought  not  to  be  arrested  even 
upon  process  of  execution, ((Z)  without  notice  first  given  to,  and  leave 
obtained  from  the  lord  chamberlain  of  his  majesty's  household  :(c)  And 
a  servant  of  this  nature  is  not  liable  to  be  arrested,  although  the  debt 
be  contracted  in  the  course  of  trade,  which  he  publicly  carries  on.(/) 
But  the  servants  of  a  queen  consort  or  doivager  have  no  such  privi- 
lege.(^)  And  as  the  privilege  is  confined  to  the  king's  servants  in 
ordinary  with  fee,  in  regard  of  their  attendance  on  his  person,  it  has 
been  determined,  that  a  gentleman  of  the  king's  privy  chamber,(/i)  or 
the  fort  major  or  deputy  governor  of  the  tower  of  London,{i)  is  not 
privileged  from  arrest.  So,  where  one  of  the  wardens  of  the  toiuer, 
on  being  arrested,  claimed  his  privilege,  but  afterwards  executed  a  bail- 
bond,  the  court 'refused  to  order  it  to  be  delivered  up  to  be  cancelled. (M) 
The  king  hath  moreover  a  special  prerogative,  (which  indeed  is  very  seldom 
exerted,)  that  he  may,  by  his  ivrit  of  protection,  privilege  a  defendant 
from  all  personal  and  many  real  suits,  for  one  year  at  a  time,  and  no 
longer,    in  respect   of  his    being   engaged  in   his   service  out   of    the 

(c)  2  Salk.  tit.  Privilege.     And  see  further,  as  to  the  privilege  from  arrest,  and  what  per- 
ns may  or  may  not  be  arrested,  and  held  to  special  bail,  Petersd.  Part.  Chap.  III. 
(rf)  5  Durnf.  k  East,  686  ;  but  see  2  Chit.  Pvep.  46.     1  Dowl.  &  Ryl.  127,  n. 
(e)  T.  Raym.  152.     2  Keb.  3,  485 ;  but  see  1  Barn.  &  Cres.  139.     2  Dowl.  &  Ryl.  250,'S.  C. 
(/)  2  Taunt.  167.  (g)  1  Keb.  842,  877. 

[h)  2  Caru.  &  Aid.  234.     1  Dowl.  &  Ryl.  79. 

((■)  2  Chit.  Rep.  48,  51 ;  and  see  6  Barn.  &  Aid.  139.    2  Dowl.  &  Ryl.  250,  S.  C. 
{kk)  6  Barn.  &  Cres.  84.     9  Dowl.  &  Ryl.  153,  S.  C.  ;  and  see  1  Moore  &  P.  309,     4  Bing 
523,  S.C. 

[a]  Recent  legislation  in  England  has  materially  changed  many  of  the  positions  stated 
by  Mr.  Tidd,  but  inasmuch  as  the  whole  subject-matter  of  this  chapter  has  been  modified 
in  this  country,  the  reader  is  referred  simply  to  the  later  books  of  English  practice,  where 
he  will  liud  all  that  can  be  useful  by  way  of  analogy.  See  1  Chitty's  ^Vrchbold's  Pract.  p. 
662,  8  Ed.     Exchequer  Dig.  tits.  Alfidavit,  and  Affidavit  to  hold  to  Bail. 

[b]  Imprisonment  for  debt  in  most  of  the  states  no  longer  exists.  Arrests  cannot  be  made 
except  in  the  cases  specially  provided  in  the  statutes.  It  is  not  within  the  scope  of  these 
notes  to  do  more  than  refer  to  the  several  statutes  without  stating  their  various  and  com- 
plicated provisions.  See  Rev.  Stat.  Maine,  Title  10,  p.  624,  2d  Ed.  1847.  Rev.  Stat.  Verm. 
Tit.  11,  ch.  28,  p.  187,  188,  Ed.  1840.    New  Hamp.  Comp.  Stat.  Tit.  21,  ch.  197,  p.  476,  Ed! 

1853.  Mass.  Rev.  Stat.  Pt.  3,  Tit.  2,  p.  560,  Ed.  1836.     Curwen's  Laws  of  Ohio,  1185,  Ed. 

1854.  Rev.  Stat.  New  York,  p.  744,  Ed.  1848.     Gen.  Stat,  of  New  York,  Pt.  2,  Tit.  7,  Ch. 

I,  p.  242,  418  and  note,  Blatchford's  Ed.  1852.  Nixon's  li^mer's  Dig.  New  Jersey,  \).  330 
Ed.  1855.  Rev.  Stat.  N.  J.  p.  323,  Ed.  1847.  Brighlly's  Purd.  Dig.  Penn.  p.  28,  Ed. 
1853.  Laws  of  Delaware,  Tit.  10,  Ch.  102,  103,  p.  368,  Ed.  1852.  Michigan  Rev.  Stat'.  Pt. 
3,  Tit.  1,  Ch.  5,  p.  391.     Arkansas  Rev.  Stat.  p.  38,  Ed.  1838.     Const.  ^U-kan.,  Art  7    Sect. 

II.  Dorsey's  Laws  of  Maryland,  Vol.  1,  p.  460,  Ed.  1840. 


sons 


190 


OF  THE  PRIVILEGE 


r  *191  1  realm.  And  the  king  also,  by  the  common  law,  might  *take 
his  debtor  into  his  protection,  so  that  no  one  might  sue  or  arrest 
him  till  the  king's  debt  were  paid  :  but  by  the  statute  25  Edw.  III.  stat. 
5  c.  19,  notwithstanding  such  protection,  another  creditor  may  proceed 
to  judgment  against  him,  with  a  stay  of  execution  till  the  king's  debt  be 
paid  unless  such  creditor  will  undertake  for  the  king's  debt,  and  then  he 
shall  have  execution  for  both. (a) 

By  the  law  of  nations,[A]  as  declared  by  the  statute  7  Ann.  c.  12,  Am- 
bassadors,  and  other  public  minister  s,{h)  are  privileged  from  arrest;  as 
are  also  their  domestic  servants  ;  it  being  enacted  by  the  above  statute, 
that  "all  writs  and  process  against  the  person  or  goods  of  an  ambassador 
or  other  public  minister  of  a  foreign  prince  or  state,  or  the  domestic  ser- 
vant of  such  ambassador  or  public  minister,  shall  be  utterly  null  and  void, 
to  all  intents  and  purposes  whatsoever."  But  a  consul  is  not  considered 
as  a  public  minister,  nor  consequently  privileged  from  arrest.(c)  And  it 
has  been  adjudged,((i)  that  a  defendant  claiming  the  benefit  of  this  act, 
as  domestic  servant  to  a  public  minister,  must  be  really  and  bond  fide  his 
servant,  at  the  time  of  the  arrest  ;(e)  and  must  clearly  show  by  affidavit, 
the  general  nature  of  his  service,  and  actual  performance  of  it,  and  that 
he  was  not  a  trader  or  object  of  the  bankrupt  laws.(/)  For,  by  the  laws 
of  nations,  a  public  minister  cannot  protect  a  person  who  is  not  bona  fide 
his  servant.  It  is  the  law  that  gives  the  protection :  and  though  the  pro- 
cess of  the  law  shall  not  take  a  bond  fide  servant  out  of  the  service  of  a 
public  minister,  yet,  on  the  other  hand,  a  public  minister  shall  not  take  a 
person,  who  is  not  bona  fide  his  servant,  out  of  the  custody  of  the  law, 
or  screen  him  from  the  payment  of  his  just  debts. (^)  So,  where  the  ser- 
vant of  an  ambassador  did  not  reside  in  his  master's  house,  but  rented  and 
lived  in  another,  part  of  which  he  let  in  lodgings  ;  the  court  held,  that 
his  goods  in  that  house,  not  being  necessary  for  the  convenience  of  the 
ambassador,  were  liable  to  be  distrained  for  the  poor  rates. (7i)  And  where 
the  wife  of  an  ambassador's  secretary  was  arrested,  upon  a  writ  issued 
against  her  and  her  husband,  the  court  refused  to  quash  the  writ,  though 
the  husband  swore  that,  before  and  at  the  time  of  the  arrest,  he  was  in 
the  actual  employment  of  the  ambassador,  and  in  daily  attendance  upon 
him,  in  writing  dispatches,  and  other  official  documents ;  it  not  being 
sworn  that  he  was  a  domestic  servant,  or  employed  in  the  abassador's 
house,  (z) 

This  privilege,  however,  has  been  long  settled  to  extend  to  the  servants 

of  a  public  minister,  being  natives  of  the  country  where  he  resides,  as  well 

as  to  his  foreign  servants  ',{k)  and  not  only  to  servants  lying  in 

[  *192  ]  his  house,  *for  many  houses  are  not  large  enough  to  contain  and 

lodge  all  the  servants  of  some  public  ministers,  but  also  to  real 

(a)  3  Blac.  Com.  289,  90.  (6)  Cas.  <otj3.  Talb.  281.     4  Bur.  2016. 

(c)  3  Maule  &  Sel.  284 ;  and  see  Cas.  temp.  Talb.  281.  3  Bur.  1481,  S.  C.  cited.  Com.  Dig. 
tit  Ambasadors,  B.  1  Taunt.  106.  9  East,  447,  by  whicli  it  appears  that  this  point  was  for- 
merly considered  as  doubtful. 

(d)2Str.19l.  2  Ld.  Raym.  1524.  Fitzgib.  200,  S.  C.  1  Wils.  20,  78.  1  Blac.  Rep.  48. 
1  Bur.  401.  3  Bur.  1478.  1  Blac.  Rep.  471,  S.  C.  3  Bur.  1676,  1731.  3  Wils.  33,  and  see  3 
Carapb.  47. 

(e)  Flint  v.  De  Lot/ant,  M.  42  Geo.  III.  K.  B. 

(/)  See  the  statute,  ^  5.  (ff)  4  Bur.  2016, 17. 

(A)  1  Barn.  &  Cres.  554.    2  Dowl.  &  Ryl.  833,  S.  C. 

(t)  3  Dowl.  &  Ryl.  25.  {k)  3  Bur.  1676. 

[A]  See  Wbeaton's  Elm.  Inter.  Law,  p.  139,  3d  Ed.  1846. 


FROM  ARREST.  192 

and  actual  servants  lying  out  of  his  house  :(a)  Nor  is  it  necessary,  to  enti- 
tle them  to  the  privilege,  that  their  names  should  have  been  registered  in 
the  secretary  of  state's  office,  and  transmitted  to  the  sheriff's  office  ;{b) 
though,  unless  they  have  been  so  registered  and  transmitted,  the  sheriff 
or  his  officers  cannot  be  proceeded  against  for  arresting  them.(c)  And  it 
is  not  to  be  expected,  that  every  particular  act  of  service  should  be  spe- 
cified :  'Tis  enough,  if  an  actual  bond  fide  service  be  proved :  and  if 
such  a  service  be  sufficiently  made  out  by  affidavit,  the  court  will  not, 
upon  bare  suspicion,  suppose  it  to  have  been  merely  colourable  and  collu- 
sive. (cZ) 

By  the  common  law,  Peers  of  the  realm  of  England^{e)  and  Peeresses, 
whether  by  birth  or  marriage,(/)  are  constantly  privileged  from  arrest  in 
civil  suits,  on  account  of  their  dignity,  and  because  they  are  supposed  to 
have  sufficient  property,  by  which'they  may  be  compelled  to  appear :  which 
privilege  is  extended,  by  the  act  of  union  with  Scotland,[g)  to  hcotch  peers 
and  peeresses  ;  and  by  the  act  of  union  with  Ireland,{h)  to  Irish  peers  and 
peeresses.  An  Irish  peer,  who  has  voted  in  the  election  of  representative 
peers,  cannot  be  arrested  or  sued  hj  capias.  7  Barn.  &  Ores.  388.  1  Man. 
&  Ryl.  110,  S.  C.  And  they  are  not  liable  to  be  attached,  for  the  non- 
payment of  money,  pursuant  to  an  order  of  nisi  py^ius,  which  has  been 
made  a  rule  of  court. (2)  But  this  privilege  will  not  exempt  them  from 
attachinents,  for  not  obeying  the  process  of  the  courts ;( A;)  nor  does  it  ex- 
tend to  peeresses  by  marriage,  if  they  afterwards  intermarry  with  common- 
ers.(/)  And  though  the  servants  of  peers,  necessarily  employed  about 
their  persons  and  estates,  could  not  formerly  have  been  arrested,(m)  yet 
this  privilege  seems  to  have  been  taken  away  by  the  statute  10  Geo.  III.  c. 
50,  §  l.{ii)  Where  a  capias  issues  against  a  peer,  the  court  will  set  aside 
the  proceeding  for  irregularity  :(o)  But  it  seems,  that  the  sheriff  is  not  a 
trespasser  for  executing  ii.{p)  And  the  court  will  not,  on  motion,  cancel 
a  bail-bond,  given  by  a  person  claiming  to  be  an  Irish  peer,  unless  his 
peerage  be  clearly  made  o\xi.{q) 

By  the  law  and  custom  of  parliament,  Blemhers  of  the  House  of  Com- 
mons are  privileged  from  arrest,  not  only  during  the  actual  sitting  of  par- 
liament, but  for  a  convenient  time,  sufficient  to  enable  them  to  come  from, 
and  return  to  any  part  of  the  kingdom,  before  the  first  meeting, 
and  after  the  *final  dissolution  of  it  ',{aa)  and  also  for  forty  days(W))  [  *103  ] 
after  every  prorogation,  and  before  the  next  appointed  meeting: 
which  is  now  in  effect  as  long  as  the  parliament  exists,  it  being  seldom 

(a)  2  Str.  191.  3  Wils.  35,  and  see  I  Barn.  &  Cres.  563.  2  Dowl.  &  Ryl.  480,  S.  C,  per 
Abbott,  Ch.  J. 

(6)  4  Bur.  2017.    3  Durnf.  &  East,  19. 

(c)  See  the  statute,  ^  5.    1  Wils.  20,  and  a  modern  order.  (d)  3  Bur.  1431. 

(e)  6  Co.  52.  9  Co.  49,  a.  68,  a.  Hob.  61.  Sty.  Rep.  222.  2  Salk.  512.  2  II.  Blac.  272.  3 
East,  127. 

(/)  6  Co.  52.    Sty.  Rep.  252.    1  Vent.  298.    2  Chan.  Cas.  224. 

(g)  5  Ann,  c.  8,  art.  23,  and  see  Fort.  1C5.    2  Sir.  990. 

(A)  39  &  40  Geo.  III.  c.  67,  art.  4 ;  but  see  7  Taunt.  679.    1  Moore,  410,  S.  C. 

(t)  Ld.  Falkland s  case,  E.  36  Geo.  III.  K.  B.    7  Durnf.  &  East,  171,  and  see  id.  448. 

[k)  1  Wils.  332.    Say.  Rep.  50,  S.  C.    1  Bur.  631. 

{I)  Co.  Lit.  16.    2  Inst.  50.    4  Co.  118.    Dyer,  79. 

im)  Ordo  Dorn.  Proc.  28  Junii.  1715.    1  Mod.  146.    2  Str.  1065.    1  Wils.  278. 

(n)  5  Durnf.  &  East,  687.    1  Chit.  Rep.  83. 

(0)  4  Taunt.  668.    Ante,U%.  (/>)  Doug.  671.  (y)  3  Dowl.  &  Ryl.  488. 

(aa)  Stat.  10  Geo.  III.  c.  50.    2  Str.  985.    Fort.  159.    Com.  Rep.  444,  S.  C.    1  Ken.  125. 

\bb)  2  Le7.  72.    1  Chan.  Cas.  221,  S.  C,  but  see  1  Sid.  29. 


193  OI'  THE  PRIVILEGE 

prorof^ued  for  more  than  fourscore  days  at  atime.(cc)[A]  And  the  courts 
■will  not  grant  an  attachment  against  a  member  of  the  house  of  commons, 
for  non-payment  of  money  pursuant  to  an  award.(c?(i) 

Blenibers  of  convocation  are  allowed,  by  statute(e)  the  same  privilege 
from  arrest  in  coming,  tarrying,  and  returning,  as  members  of  the  house 
of  commons.  And  members  of  corporations  aggregate{f)  and  hun- 
dredors,{g)  not  being  liable  to  a  capias,  cannot  be  arrested  for  any  thing 
done  in  their  corporate  capacity,  or  on  the  statute  7  &  8  Geo.  IV.  c.  31. 

Attorneys  and  other  Officers,  on  account  of  the  supposed  necessity  of 
their  attendance,  in  order  to  transact  the  business  of  the  courts,  are  generally 
speaking,  privileged  from  arrest. (7i)  And  a  Samsfer  has  been  discharged 
from  an  arrest  on  the  circuit. (z)  But  the  sheriff  cannot  take  notice  of  their 
privilege ;(/(;)  nor  is  he  bound  to  discharge  them,  even  upon  producing  their 
writs  of  privilege,  except  where  the  arrest  was  by  process  issuing  out  of  an 
inferior  court,  in  which  case  their  writs  of  privilege  ought  to  be  allowed 
instanter.{l) 

All  other  persons,  being  subject  to  a  capias,  were  formerly  liable  to  be 
arrested.  And  indeed,  before  the  statute  12  Geo.  I.  c.  29,  where  a  capias 
issued,  there  was  no  other  way  of  bring  them  into  court.  But  executors 
and  administrators  are  privileged  from  arrest,  where  they  merely  act  en 
auter  droit,  and  have  duly  administered  the  effects  of  the  deceased  ;{m) 
though  where  an  executor  or  administrator  hath  personally  promised  to  pay 
a  debt  or  legacy,(n)  he  may  be  arrested  on  such  promise.  So,  he  may  be 
arrested  in  an  action  of  debt  on  judgment,  suggesting  a  devastavit  ;{o)  if  it 
appear  by  affidavit,  or  the  sheriff's  return, (j'j))  that  he  has  wasted  the  effects 
of  his  testator,  or  intestate.  Heirs  and  devisees,  in  like  manner  are  privi- 
leged from  arrest,  when  sued  on  the  obligation  of  their  ancestors,  or  devisors: 
For  although  an  heir,  having  assets  by  descent  in  fee  simple,  is  liable  to  be 
sued  in  the  debet  and  detinet,  on  the  obligation  of  his  ancestor ;  yet  the 
action,  being  rather  instituted  to  recover  the  value  of  the  assets  descended 
and  in  his  possession,  than  brought  against  him  personally,  he  cannot  be 
arrested  and  holden  to  bail  on  his  ancestor's  bond :  And  the 
[  *194  ]  *same  rule  and  reasoning  apply  to  devisees,  chargeable  under  the 
statute  3  &  4  W.  &  M.  c.  14. 

In  an  action  against  Hiisbayid  and  Wife,  the  husband  alone  is  liable  to  be 
arrested,  on  mesne  process ;  and  shall  not  be  discharged,  until  he  have  put 
in  bail  for  himself  and  his  wife.(a)     If  the  wife  be  arrested  on  mesne  pro- 

{cc)  1  Blac.  Com.  165.  {dd)  7  Durnf.  &  East,  448. 

(e)  8  Hen.  VI.  c.  1.     1  Eq.  Cas.  Abr.  349.  (/)  Bro.  Abr.  tit.  Corporation,  43. 

((/)  3  Keb.  126,  7.  (A)  1  Mod.  10,  but  vide  ante,  80,  81. 

(t)  1  H.  Blac.  636. 

(/:)  Co.  Lit.  131.     1  Salk.  1,  and  see  Doug.  671.     4  Taunt.  631.     4  Moore,  36,  (i). 

{I)  Cas.  Pr.  C.  P.  2.     2  Blac.  Rep.  1087.     Ante,  81. 

(m)  Yelv.  53.  Brownl.  293.  3  Bulst.  316.  R.  M.  15  Car.  II.  reg.  2.  K.  B.  R.  M.  1654, 
I  12,  C.  P.  Gilb.  C.  P.  37. 

(n)  1  Durnf.  &  East,  716. 

(o)  1  Sid.  63.     1  Lev.  39.     Garth.  264.     1  Salk.  98.     Highmore  on  Bail,  10. 

ip)  Comb.  206,  325. 

[a)  1  Vent.  49.  1  Mod.  8,  S.  C.  6  Mod.  17,  86,  R.  E.  5  Geo.  II.  1,  (6),  K.  B.  1  Barn.  & 
Aid.  165.    2  Dowl.  &  Ryl.  225 ;  but  see  1  H.  Blac.  235. 

[a]  Members  of  Congress  are  also  privileged.  Lewis  v.  Elmendorf,  1  Johns.  Cas.  222. 
Cox  V.  M-Lanahan,  3  Dall.  478.  United  States  v.  Cooper,  4  Id.  341.  King  v.  Coil,  4  Day, 
133.  Gibbs  V.  Mitchell,  2  Bay,  406  ;  and  members  of  the  State  Legislatures  or  State  Con- 
ventions. Calvin  v.  3Iorgan,  1  Johns.  Cas.  415.  Correy  v.  Russell,  4  Wend.  204.  Bolton  v. 
Martin,  1  Dall.  296. 


FROM  ARREST.  194 

cess,  she  shall  be  discharged  on  common  bail ;  and  that,  ■whether  she  be 
arrested  singly,(6)  or  jointly  with  her  husband. (c)  But  where  the  wife  is 
taken  in  execution,  she  shall  not  be  discharged ;((/)  unless  it  appear  that  she 
has  no  separate  property,  out  of  which  the  demand  can  be  satisfied  ;{d)  or 
that  there  is  fraud  and  collusion  between  the  plaintiff  and  her  husband,  to 
keep  her  in  prison. (e)  And  where  a  woman,  who  had  given  a  Avarrant  of 
attorney,  married  during  the  term,  and  was  afterwards  taken  in  execution, 
on  a  judgment  signed  as  of  that  term,  and  therefore  having  relation  to  the 
first  day  of  the  term,  it  was  holden  that  she  could  not  be  relieved. (/)  In 
an  action  against  the  wife  only,  if  it  be  clear  and  notorious  that  she  i3 
covert,  the  court  will  discharge  her  out  of  custody,  upon  her  own  afiidavit 
of  the  fact,  which  must  be  positively  sworn  to,(^)  and  that  her  husband  is 
alive  ;  or,  if  she  has  given  a  bail-bond,  will  order  it  to  be  delivered  up  to  be 
cancelled,  on  filing  common  bail,  or  entering  a  common  appearance  ;(/<)  un- 
less she  has  deceived  the  plaintiff,  by  representing  herself  to  be  a  feme 
sole.(e;)  And  common  bail  was  ordered,  in  a  case  where  the  plaintiff,  at  the 
time  of  giving  credit  to  the  defendant,  knew  that  she  was  a  married  woman, 
though  living  apart  from  her  husband,  with  a  separate  maintenance. (/c)  So 
where  a  feme  covert,  separated  from  her  husband  by  a  sentence  of  divorce  a 
mensd  et  thoro,  was  holden  to  bail,  while  an  appeal  was  still  pending  against 
the  sentence,  the  court,  on  motion,  ordered  the  bail-bond  to  be  cancelled,  on 
her  entering  a  common  appearance. (^)  In  order  to  entitle  a  feme-covert  to 
her  discharge,  it  is  not  necessary  that  her  coverture  should  be  known  to  the 
plaintiff;  nor  is  it  sufficient  to  prevent  it,  that  she  has  appeared  and  acted 
as  a  feme  sole,  and  obtained  credit  in  that  character,  unless  she  represented 
herself  to  be  single. (»i)  And  where  no  fraud  Avas  intended,  the  court  of 
King's  Bench  discharged  her  on  common  bail ;  though  at  the  time  of  the 
credit  given  her  by  the  plaintiff,  she  informed  him  by  mistake  that 
her  husband  was  dead.(w)  But  if  the  fact  *of  the  coverture  be  [  *195  ] 
doubtful,  or  the  defendant  has  obtained  credit  by  imposing  herself 
on  the  plaintiff  as  a  feme  sole,  she  must  find  special  bail,  and  plead  her 
coverture,  or  bring  a  writ  of  error.(a)  And  the  court  of  Common  Pleas 
refused  to  discharge  a  defendant  on  the  ground  of  coverture,  she  being  a 
foreigner,  and  her  husband  abroad  ;  though  she  was  not  separated  from  him 
by  deed,  had  no  separate  maintenance,  nor  had  ever  represented  herself  as 
a  single  woman. (W)     So  that  court  would  not  upon  a  summary  application  ; 

(6)  Cro.  Jac.  445.     Pr.  Reg.  65,  6.     1  Barn.  &  Aid.  165.     6  Moore,  128. 

(c)  1  Lev.  21G.  1  Salk.  115.  6  Mod.  17.  2  Str.  1272.  1  Durnf.  &  East,  486.  2  Dowl. 
&  Ryl.  225,  K.  B.  Barnes,  96.  3  Wils.  121.  2  Blac.  Kep.  720,  S.  C.  6  Moore,  128,  C.  P., 
but  see  1  Taunt.  254,  contra. 

{d)  Chalk  V.  Deacon  ^  wife,  T.  2  Geo.  IV.  C.  P.  6  Moore,  128,  and  see  5  Barn.  &  Aid. 
759. 

(c)  2  Str.  1167,  1237.  1  Wils.  149,  K.  B.  Barnes,  203.  3  Wils.  124.  2  Blac.  Rep.  720, 
S.  C.  C.  P. 

(/)  Per  Baylcy,  J.  in  Triggs  v.  Triggs,  Trin.  Vac.  1815.  Man.  Excheq.  67,  8,  and  see  4 
East,  521. 

(g)  5  Barn.  &  Aid.  747. 

{h)  2  II.  Bl.ac.  17.     3  Taunt.  307. 

(t)  6  Mod.  105.     7  Mod.  10.     6  Durnf.  &  East,  451.     1  New  Rep.  C.  P.  54. 

\k)  7  East,  582.     3  Taunt.  307. 

\l)  6  Moore,  265.     3  Brod.  k.  Biug.  92,  S.  C,  and  see  3  Barn.  &  Ores.  291. 

{m)  1  New  Rep.  C.  P.  54.  (n)  1  East,  16. 

(r/)  Wilson  T.  CampMl,  M.  20  Geo.  III.  K.  B.  2  Bl.ac.  Rep.  903.  3  Bos.  k  Pul.  220.  5 
Durnf.  &  East,  194.     1  East,  16. 

(W)  2  New  Rep.  C.  P.  380.  March  v.  CapcUi,E.  3D  Geo.  III.   1  East,  17,  {a),  semb.  contra; 


195  OF  THE  PRIVILEGE 

cancel  the  bail-bond,  and  permit  the  defendant  to  enter  a  common  appear- 
ance, where  a  great  part  of  the  debt  sued  for  was  contracted  before  she  dis- 
closed her  coverture,  and  it  appeared  that  she  had  acted  with  great  duplicity 
in  eluding  payment,  and,  at  the  time  of  the  application,  was  residing  out  of 
the  jurisdiction  of  the  court. (c)  Where  a  married  woman  had  been  arrested 
as  acceptor  of  a  bill  of  exchange,  at  the  suit  of  an  indoi'see,  the  court  of 
Common  Pleas  would  not  order  the  bail-bond  to  be  cancelled  on  an  affidavit 
that  the  drawer,  when  he  drew  the  bill,  knew  the  defendant  to  be  a  married 
woman  :(c?)  And  where  a  woman  was  arrested  as  drawer  of  a  bill,  at  the 
suit  of  an  indorsee,  that  court  refused  to  discharge  her,  on  the  affidavit  of 
a  third  person,  that  she  was  married. (e)  But  where  a  married  women 
had  been  arrested  as  acceptor  of  a  bill  of  exchange,  at  the  suit  of  an 
administratrix,  to  whose  intestate  the  bill  was  indorsed,  the  court  ordered 
the  bail-bond  to  be  delivered  up  to  be  cancelled,  on  an  affidavit  that  the 
drawer  and  intestate  knew,  at  the  time  the  bill  was  drawn,  accepted  and 
indorsed,  that  the  defendant  was  married. (/)  If  a  plaintiff  knowingly 
arrest  a  married  woman,  the  court  of  Common  Pleas  will  make  him  pay 
the  costs  of  the  motion  for  her  discharge  :{g)  And,  in  the  Exchequer,  the 
court  would  not  order  a  feme  covert  to  pay  costs,  nor  impose  any  terms, 
on  her  being  discharged,  although  it  was  sworn  that  she  was  carrying 
on  business  on  her  own  separate  account,  and  that  the  action  was  brought 
for  goods  furnished  to  her  in  the  way  of  her  trade.  (A) 

The  Parties  to  a  suit,  and  their  Attorneys  and  Witnesses,  are  for  the 
sake  of  public  justice,  protected  from  arrest,  in  coming  to,  attending  upon, 
and  returning  from  the  courts ;  or,  as  it  is  usually  termed,  eundo,  morando, 
etredeundo.{i)\_A\    And  this  protection  extends  to  persons  attending  the 

insolvent  debtors'  court  •,{k)  or  who  come  from  abroad  to  give 
[  *196  ]    evidence,  *without  a  suhpoena.[a)     Nor  have  the  courts  been 

nice  in  scanning  this  privilege;  but  have  given  it  a  large  and 
liberal  construction.  Thus  a  plaintiff,  who  was  attending  from  day  to  day 
at  the  sittings,  in  expectation  of  his  cause  being  tried,  was  held  to  be  pri- 
vileged from  arrest,  whilst  waiting  for  that  purpose  at  a  coffee  house  in 
the  vicinity  of  the  court,  before  the  actual  day  of  trial. (6)  And  where 
the  defendant  was  attending  his  cause  at  the  sittings,  and  though  it  was 
put  off  early  in  the  day,  stayed  in  court  till  five  in  the  afternoon,  and 
then  went  with  his  attorney  and  witnesses  to  dine  at  a  tavern,  where  he 
was  arrested  during  dinner  ;  the  court  held,  that  such  a  necessary  refresh- 
ment as  this  ought  not  to  be  looked  upon  as  a  deviation,  so  as  to  cancel 
the  defendant's  privilege  redeundo.[cc)  So  where  a  witness,  having 
attended  a  trial  at  Winchester  assizes,  which  was  over  on  Friday  about 
four  in  the  afternoon,  was  arrested  on  Saturday  about  seven  in  the  even- 
ing, as  she  was  going  home  in  a  coach  to  Portsmouth,  the  court  held  that 

but  this  was  said  by  Heath,  J.  to  be  a  very  loose  note.  2  New  Rep.  C.  P.  381 ;  and  see  2 
Salk.  646.     2  Esp.  Rep.  554.     1  Bos.  &  Pul.  357. 

(c)  1  Bing.  344.     3  Moore,  346,  S.  C.  {d)  2  Marsh.  40. 

(e)  n  Taunt.  55.     2  Marsh.  385,  S.  C.  (/)  2  Moore,  211. 

[a)  3  Taunt.  307.  (A)  9  Price,  161. 

(i)  2  Rol.  Abr.  272.    2  Lil.  P.  R.  369.    1  Mod.  66,  S.  C.  1  7ent.  11.    Gilb.  C.  P.  207,  &c., 

Barnes,  27,  378.    2  Str.  986.    Peake's  Evid.  5  Ed.  198,  9.  1  Campb.  229.    4  Moore,  34. 

{k)  6  Taunt.  356.     2  Marsh.  57,  S.  C. 

(a)  Walpole  v.  Alexander,  H.  22  Geo.  III.  K.  B. 

(b)  11  East,  439.  (cc)  2  Blac.  Rep.  1113. 

[a]  See  1  Greenl.  on  Evid.,  §  316,317,  318. 


FROM  ARREST.  196 

phe  ought  to  be  discharged,  her  protection  not  being  expired ;  and  that  a 
little  deviation  or  loitering  would  not  alter  h.{d)  There  is  indeed  a  case 
in  the  year  books,(6'e)  where  a  man  was  arrested  in  a  town,  which  was 
forty  miles  out  of  his  way,  and  yet  was  allowed  his  privilege;  for  perhaps, 
it  is  said,  he  went  there  to  buy  a  horse,  or  other  necessaries  for  his  jour- 
ney. But  the  sheriff,  not  being  bound  to  take  notice  of  the  privilege  of 
a  witness,  is  not  liable  to  an  action  of  false  imprisonment  for  arresting 
him  when  privileged  redeundo  from  attending  the  court. (^)  And  where 
an  attorney  had  been  attending  a  cause  at  the  Middlesex  sittings  in  terra, 
which  was  put  off  to  the  adjournment  day,  after  which  he  went  with  his 
witnesses  to  a  coffee  house,  where  he  was  arrested,  three  hours  after  the 
rising  of  the  court,  on  an  attachment  for  non-payment  of  money,  the  court 
held  that  an  attorney  was  not  to  be  allowed  so  long  a  time  to  speak  to  his 
witnesses  on  such  an  occasion,  before  he  went  home  ;  and  that  he  was 
properly  taken. (_^)  In  the  same  case,  the  attorney  having  been  discharged, 
on  payment  of  the  money  for  which  the  attachment  issued,  was  taken  in 
execution  at  the  door  of  the  court,  as  he  was  going  away  ;  and  the  court 
held,  that  as  he  was  decided  to  have  been  in  legal  custody,  he  was  not 
entitled  to  any  privilege  redeundo. 

The  privilege  we  are  speaking  of  has  been  holden  to  extend  to  all  persons 
who  have  any  relation  to  a  cause,  which  calls  for  their  attendance  in  court, 
and  who  attend  in  the  course  of  that  cause,  though  not  compelled  by  process ; 
such  as  bail,  &c.(/i)  And  it  has  been  determined,  that  the  party  to  a  cause  is 
privileged  from  arrest  for  debt,  during  his  attendance  on  an  arbitra- 
tion, under  an  order  of  nisi  prius,  made  a  rule  of  court ;(«')  or  *on  [  *197  ] 
the  execution  of  a  writ  of  inquiry.(«)  So,  the  summons  of  an  arbi- 
trator, to  whom  a  cause  has  been  referred  by  order  of  the  court  of  Chancery, 
protects  a  party  from  arrest,  under  process  of  the  court  of  King's  Bench, 
whilst  employed  in  bona  fide  obedience  to  the  summons,  (5)  But  where  a 
party  residing  in  London^  was  summoned  to  attend  an  arbitrator  at  Exeter^ 
and  required  to  bring  with  him  certain  papers  then  at  Clifton,  and  he  went 
to  the  latter  place,  where  all  his  papers  were,  to  make  a  selection,  and  having 
stayed  there  more  than  twenty-four  hours  for  that  purpose  and  necessary 
refreshment,  was  arrested;  a  majority  of  the  judges  of  the  court  of  King  s 
Bench  held,  that  he  was  not  entitled  to  be  discharged  out  of  custody,  having 
no  right  to  stop  and  sort  his  papers. (5)  It  is  likewise  holden,  that  all  persons 
attending  under  the  summons  of  commissioners  of  bankrupt,  are  protected 
from  arrest  :(c)  And  a  witness  attending  commissioners,  in  order  to  tender 
his  testimony  upon  a  subject  of  inquiry  before  them,  without  having  been 
summoned  for  that  purpose,  is  privileged  from  arrest  during  such  attendance 
and  in  returning.(dd)  But  the  court  of  King's  Bench  would  not  discharge  a 

(d)  Gilb.  Cas.  K.  B.  308.     2  Str.  986,  S.  C.  cited. 

\te)  Bro.  Abr.  tit.  rrivilege,  4.  (/)  2  Blac.  Rep.  1190. 

(g)  Rex  V.  Priddle,  M.  27  Geo.  III.  K.  B.,  and  see  1  Smith,  R.  355. 

(A)  Walpole  V.  Alexander,  H.  22  Geo.  III.  K.  B.  I  H.  Blac.  636.  1  Maule  &  Sel.  638.  2 
Rose,  23,  [d). 

(j)  2  Blac.  Rep.  1110.  I  Durnf.  &  East,  536.  3  East,  89.  3  Barn.  &  Aid.  252.  1  Chit. 
Rep.  679,  S.  C.     Id.  682. 

(a)  4  Moore,  34. 

(b)  3  Barn.  &  Aid.  252.  1  Chit.  Rep.  679,  S.  C.  But,  in  the  same  case,  a  majority  of 
the  judges  of  the  court  of  Exchequer  were  of  a  diflferent  opinion.  1  Chit.  Rep.  682.  7 
Price,  699. 

(c)  7  Ves.  312.    1  Rose,  265,  n. 

Idd)  1  Ves.  &  B.  316.     1  Rose,  451,  S.  C,  sed  quare  if  protected  eundo?     Id. 


197 


OF  THE  PRIVILEGE 


person  in  custody  by  process  of  the  sheriff's  court,  in  a  cause  afterwards 
removed  into  the  King's  Bench,  because  he  was  arrested  while  attending 
commissions  of  bankrupt,  to  prove  a  debt.(e)  A  witness  is  not  privileged 
from  arrest  by  his  bail,  on  his  return  from  giving  evidence :(/)  And  where 
he  has  absconded  from  his  bail,  he  may  be  retaken  by  them,  even  during  his 
attendance  in  coviYt.{gg)  So,  a  capital  burgess  of  a  borough,  attending  an 
election  of  co-burgesses,  under  a  summons  from  the  mayor,  issued  in  obedi- 
ence to  a  mandamus,  directing  the  corporation  to  proceed  to  such  election, 
is  not  privileged  from  arrest,  during  his  attendance  there  for  that  purpose. (A/i) 
If  a  party  be  arrested,  in  coming  to  attend  the  trial  of  his  cause,  the  judge  at 
nisi  prius  will  grant  a  habeas  corpus  to  discharge  him  :  and  will  put  off  the 
trial  until  he  is  released.(n)  So,  where  a  witness  from  the  country,  on  his 
arrival  in  London,  for  the  purpose  of  giving  evidence  in  a  cause  which 
stands  for  trial  during  the  sittings,  is  arrested  for  debt,  the  proper  course 
for  obtaining  his  discharge,  is  to  bring  him  before  a  judge  at  chambers,  by 
writ  of  habeas  corpus.{k)  If  a  defendant  be  arrested  by  quo  minus,  while 
protected  as  a  suitor,  by  the  privilege  of  the  Common  Pleas,  he  may  be 
discharged  either  by  that  court,  or  the  court  of  Exchequer.(?)  And  where 
a  solicitor  was  arrested  on  his  way  to  Lincoln's  Inn  Hall,  for  the  purpose 
of  attending  a  petition  in  bankruptcy,  he  was  ordered  to  be  discharged  on 
motion,  having  been  first  sworn  by  the  Register,  and  examined 
[  *198  ]  by  the  *Lord  Chancellor. («)  But  an  arbitrator,  or  commissioner 
of  bankrupt,  is  not  empowered  to  discharge  a  person  arrested 
during  his  attendance  before  them  ;(6)  nor  can  the  under  sheriff  discharge 
a  person  arrested,  when  attending  on  the  execution  of  a  writ  of  inquiry,  (c) 

By  the  mutiny  and  inarine  acts,(tZ)  "all  witnesses  duly  summoned  by 
the  judge  advocate,  or  person  officiating  as  such,  shall  during  their  neces- 
sary attendance  on  courts  martial,  and  in  going  to  and  returning  from  the 
same,  be  privileged  from  arrest,  in  like  manner  as  witnesses  attending  any 
of  his  majesty's  courts  of  law  are  privileged ;  and  if  any  such  witness 
shall  be  unduly  arrested,  he  shall  be  discharged  from  such  arrest,  by  the 
court  out  of  which  the  writ  or  process  issued,  by  which  such  witness  was 
arrested,  or  if  the  court  be  not  sitting,  then  by  any  judge  of  the  court  of 
King's  Bench,  &c.,  as  the  case  shall  require,  upon  its  being  made  appear 
to  such  court  or  judge  by  affidavit,  in  a  summary  way,  that  such  witness 
was  arrested  in  going  to,  or  returning  from,  or  attending  upon  such  court 
martial." 

Seamen,  marines,  and  soldiers  are  also,  under  certain  circumstances, 
privileged  from  arrest.  Thus,  with  regard  to  seamen  and  marines,  it  is 
enacted, (ee)  that  "no  person  who  shall  serve  as  q> petty  officer{ff)  or  seaman, 

(e)  4  Durnf.  &  East,  377,  but  see  7  Ves.  416.  1  Rose,  265,  n.  2  Rose,  24,  semb.  contra., 
and  see  1  Atk.  55.     2  Blac.  Rep.  1142.     1  H.  Blac.  636.     West  on  Extents,  95. 

(/)  3  Stark.  Ni.  Pri.  132. 

{gg)  Dowl.  <fe  Ryl.  Ni.  Pri.  20,  and  see  1  Sel.  Pr.  1  Ed.  180. 

{hh)  7  Taunt  682.     1  Moore,  413,  S.  0.  {ii)  1  Camp.  229. 

{k)  1  Stark.  Ni.  Pri.  470.  (/)  3  Anst.  941,  and  see  4  Moore,  36. 

{a)  16  Ves.  413.  See  also  14  Ves.  183,  S.  P.,  in  which  the  Lord  Chancellor  administered 
tbe  oath,  and  examined  the  party,  in  the  absence  of  the  Register. 

(b)  4  Moore,  36,  per  Park,  J.  (c)  4  Moore,  34. 

(/)  7  &  8  Geo.  IV.  c.  4,  §  28. 

(ee)  Stat.  1  Geo.  II.  Stat.  2,  c.  14,  ^  15.  Barnes,  95,  114,  and  see  the  statutes  32  Geo.  III. 
c.  33,  §22.     44  Geo.  III.  c.  13.     11  East,  25.     9  Geo.  IV.  c.  3,  ^0. 

{ff)  For  a  description  of  petty  or  interior  oiScers,  seamen,  and  non-commissioned  officers 
of  marines,  or  marine,  see  the  stat.  32  Geo.  III.  c.  34,  ^  8. 


FROM  ARREST,  198 

or  be  embarked  as  a  non-commissioned  officer  of  marines,  or  marine,  on 
board  any  of  his  majesty's  ships  or  vessels,  shall  be  liable  to  be  taken  out 
of  his  majesty's  service,  by  any  process  or  execution  Avhatsoever,  either  in 
Great  Britain,  Ireland,  or  any  other  part  of  his  majesty's  dominions, 
other  than  for  some  criminal  matter,  unless  such  process  or  execution  be 
for  a  real  debt,  Avhich  shall  have  been  contracted  by  such  petty  officer  or 
seaman,  non-commissioned  officer  of  marines,  or  marine,  ■when  he  did  not 
belong  to  any  ship  or  vessel  in  his  majesty's  service,  or  other  just  cause 
of  action ;  and  unless,  before  the  taking  out  of  such  process  or  execution, 
not  being  for  a  criminal  matter,  or  for  a  debt  contracted  in  the  service  as 
aforesaid,  the  plaintiff  or  plaintiffs  therein,  or  some  other  person  or  per- 
sons on  his  or  their  behalf,  shall  make  affidavit,  before  one  or  more  judge 
or  judges  of  the  court  of  record,  or  other  court  out  of  Avhich  such  process 
or  execution  shall  issue,  or  before  some  person  authorized  to  take  affida- 
vits in  such  courts,  that  to  his  or  their  knowledge,  the  sum  justly  due  to 
the  plaintiff  or  plaintiffs,  from  the  defendant  or  defendants  in  the  action, 
or  cause  of  action  on  which  such  process  shall  issue,  or  the  debt  or  dam- 
age and  costs  for  which  such  execution  shall  be  issued  out,  amounts  to  the 
value  of  tiventy  pounds  at  the  least,  and  that  such  debt,  so  amounting  to 
twenty  pounds  or  upwards,  was  contracted  by  the  said  defend- 
ant, when  he  did  not  belong  *as  aforesaid  to  any  ship  in  his  [  *199  ] 
majesty's  service;  a  memorandum  of  which  oath  shall  be  marked 
on  the  back  of  such  process  or  writ,  for  which  memorandum  or  oath  no 
fee  shall  be  taken." 

A  similar  privilege  is  allowed,  by  the  annual  mutiny  and  marine  acts,(a) 
to  volunteer  soldiers,  who  are  not  liable  to  be  taken  out  of  his  majesty's 
service,  by  any  process  or  execution  whatsoever,  other  than  for  some  crimi- 
nal matter  unless  for  a  real  debt,  or  other  just  cause  of  action;  and  unless, 
before  the  taking  out  of  such  process  or  execution,  (not  being  a  criminal 
matter.)  an  affidavit  shall  be  taken  as  before  mentioned,  that  the  original 
sum  justly  due  and  owing  to  the  plaintiff  or  plaintiffs,  from  the  defendant 
or  defendants  in  the  action,  or  cause  of  action  on  which  such  process  shall 
issue,  or  the  original  debt  for  which  such  execution  shall  be  sued  out, 
amounts  to  the  value  of  tiventy  pounds  at  least,  over  and  above  all  costs  of 
suit  in  the  same  action,  or  in  any  other  action  on  which  the  same  shall  be 
grounded. 

These  acts  have  been  construed  to  extend  not  merely  to  common  soldiers, 
and  troopers{h)  in  the  life  guards,  &c.  but  also  to  no7i-commissioncd  or 
warrant  officers,  as  gunners,(c)  Serjeants,  and  drummers  :((^)  For  a  serjeant 
is  a  soldier  with  a  halbert ;  and  a  drummer  is  a  soldier  with  a  drum.(e?) 
These  acts,  however,  do  not  extend  to  commissioned  officers;  nor  to  the 
case  of  soldiers  imprisoned  for  disobeying  orders  of  justices,(/)  or  on  any 
other  criminal  account. (/y)  And  if  a  non-commissioned  officer  has  been 
arrested  and  given  bail,  the  court  of  Common  Pleas  will  not,  after  judgment 
recovered  against  the  bail,  set  aside  the  proceedings,  and  cancel  the  bail- 
bond.(/i)  It  should  also  be  observed,  that  volunteer  drill  Serjeants,  kc. 
though  subject  to  the  regulations  of  the  mutiny  act,  so  far  as  relates  to  trial 

(a)  37  Geo.  III.  c.  33,  §  63,  and  see  7  &  8  Geo.  IV.  c.  5,  §  70,  c.  4,  ?  129.  0  Geo.  IV. 
C.  4,  §  129. 

(6)  1  Str.  2.     Say.  Rep.  107.  (c)  1  Str.  7. 

{d)  1  Wils.  216.     1  Blue.  Rep.  29,  S.  C.  (c)  1  Blac.  Rep.  30. 

(/)  2  Diirnf.  &  East,  270.  {ff)  5  Durnf.  k  East,  156. 

(h)  4  Taunt.  557. 


199  OF  THE  PRIVILEGE 

and  punishment  by  volunteer  courts  marshal,  according  to  the  statute  44 
Geo.  III.  c.  54,  §  21,  are  not  privileged  from  arrest,  for  debts  under  20Z. 
as  regular  soldiers. (2) 

By  the  same  acts  of  parliament,  "  if  any  petty  officer  or  seaman^  non- 
commissioned officer  of  marines,  or  marine,  or  any  volunteer  soldier, 
shall  nevertheless  be  arrested  contrary  thereto,  it  shall  and  may  be  lawful 
for  one  or  more  judge  or  judges  of  the  court  out  of  which  the  process  or 
execution  shall  issue,  upon  complaint  thereof  made  by  the  party  himself,  or 
by  any  of  his  superior  officers,  to  examine  into  the  same,  by  the  oath  of  the 
parties  or  otherwise,  and  by  warrant  under  his  or  their  hands  and  seals,  to 
discharge  such  petty  officer,  &c.  so  arrested,  without  paying  any  fee  or  fees, 
upon  due  proof  made  before  him  or  them,  that  such  petty  officer  or  seaman, 
non-commissioned  officer  of  marines,  or  marine,  was  actually  belonging  to 
one  of  his  majesty's  ships  or  vessels,  or  that  such  soldier  was  legally  enlisted 
as  a  soldier  in  his  majesty's  service,  and  arrested  contrary  to  the 
[  *200  ]  intent  of  the  before-mentioned  acts  ;  *and  also  to  award  the  party 
so  complaining,  such  costs  as  such  judge  or  judges  shall  think  rea- 
sonable; for  the  recovery  whereof,  he  shall  have  the  like  remedy,  that  the 
person  who  takes  out  the  said  execution  might  have  had  for  his  costs,  or  the 
plaintifif  in  the  like  action  might  have  had  for  the  recovery  of  his  costs, 
in  case  judgment  had  been  given  for  him  with  costs,  against  the  defendant 
in  the  said  action. "(a) 

By  other  acts  of  parliament,(5)  for  the  speedy  and  effectual  recruiting  of 
his  majesty's  land  forces  and  marines,  "  no  person,  listed  by  virtue  of  those 
acts,  shall  be  liable  to  be  taken  out  of  his  majesty's  service,  by  any  process, 
other  than  for  some  criminal  matter."  But  these  latter  acts  were  only 
meant  to  privilege  such  persons  as  were  compelled  to  serve  against  their 
will:((?)  or  rather  to  prevent  their  being  taken  out  of  the  service,  by  means 
of  feigned  actions. 

The  privilege  of  hanhrupts  from  arrest  may  be  considered  in  a  threefold 
point  of  view :  first,  as  it  respects  the  time  allowed  them  for  coming  to  sur- 
render, and  finishing  their  examination ;  secondly,  after  the  time  allowed 
for  these  purposes  is  expired,  and  before  they  have  obtained  their  certifi- 
cates ;  and  thirdly,  after  they  have  obtained  their  certificates. 

By  the  statute  5  Geo.  II.  c.  30,  §  5,  bankrupts,  who  are  not  previously  in 
custody,  were  exempted  from  the  arrest  of  their  creditors,  in  coming  to 
surrender  ;  and  from  their  actual  surrender,  for  the  two  o^ndi  forty  days  men- 
tioned in  the  act,((^)  or  such  further  time  as  should  be  allowed  for  finishing 
their  examination  :  which  privilege  was  allowed  in  all  cases,  except  that  of  a 
surrender  in  discharge  of  bail.(e)  On  this  statute  it  was  holden,  that  the 
surrender  of  the  bankrupt  to  the  commissioners ;  at  a  private  meeting, 
entitled  him  to  the  benefit  of  this  privilege  ;(/)  and  it  extended  to  the  end 
of  the  forty  second  day,(^)  and  afterwards,  if  the  bankrupt  surrendered 
within  two  and  forty  days,  to  the  end  of  the  enlarged  time  allowed  by  the 
commissioners,  or  the  lord  chancellor,  in  pursuance  of  the  statute  5  Geo.  II. 
c.  30,  §  8.(A)    But  commissioners  of  bankrupt  were  not  authorized  by  that 

(t)  8  East,  105. 

(a)  Stat.  1  Geo.  II.  c.  14,  |  15.  32  Geo.  III.,  c.  33, 1  22.  37  Geo.  III.  c.  33,  §  63.  9  Geo. 
IV.  c.  3,  ?  70,  and  c.  4,  §  129^ 

{b)  29  Geo.  II.  c.  4,  §  14.    30  Geo.  II.  c.  8,  I  20. 

(c)  1  Bur.  339,  466.  {d)  §  I.  (e)  5  Durnf.  &  East,  209. 

(/)  1  Rose,  46,  230.  {g)  7  Ves.  317. 

{h)  8  Duraf.  &  East,  475.  3  Esp.  Rep.  40,  S.  C.  1  Rose,  264,  n.  and  see  stat.  6  Geo.  IV.  c. 
16,  I  113. 


FROM  ARREST.  200 

Statute,  to  enlarge  the  time,  for  an  indefinite  period,  in  order  to  enaLle  a 
bankrupt  to  make  a  full  disclosure  of  liis  estate  and  effects. (z)  "Where  a 
bankrupt,  whose  last  examination  had  been  adjourned  shie  die,  gave  his 
voluntary  attendance  before  the  commissioners,  in  order  to  be  examined  at  a 
meeting  under  his  commission  for  a  distinct  purpose,  and  was  there  arrested 
the  chancellor  held  him  to  be  entitletl  to  his  discharge. (/c)  So  it  was  holden, 
that  a  bankrupt  attending  the  hearing  of  a  petition  for  leave  to  surrender, 
after  the  time  had  expired,  was  privileged  from  arrest,  as  a  party  attending 
his  own  cause. (/)  So,  a  bankrupt  attending,  upon  notice  for  that 
purpose,  a  meeting  of  the  commissioners,  to  declare  a  dividend  of  [  *201  ] 
*his  estate,  was  protected  from  arrest,  at  the  suit  of  a  creditor,  du- 
ring such  attendance  although  several  years  after  his  last  examination. (aa) 
And  where  a  bankrupt  was  arrested  on  a  writ  of  extent,  while  actually  attend- 
ing to  give  evidence  before  commissioners  of  bankrupt,  the  chancellor  dis- 
charged him,  as  being  privileged  from  arrest  at  common  \^\\\{hh)  ]>ut  as  the 
king  was  not  bound  by  the  statute  5  Geo.  II.  c.  30,  it  was  holden,  that  a 
bankrupt  was  not  entitled  to  be  discharged  by  virtue  of  that  statute,  when 
arrested  on  a  writ  of  extent,  during  the  time  of  privilege. (<?)  It  should 
also  be  observed,  that  the  privilege  we  are  now  speaking  of,  is  sl  jyart ieidar 
privilege,  to  enable  bankrupts  to  surrender,  and  till  their  actual  surrender, 
is  confined  to  the  act  of  going  with  that  view ;  not  a  general  privilege, 
during  the  whole  time  which  the  act  of  parliament  allows  them  for  that 
purpose. (c?)  And  they  may  be  taken,  in  order  to  be  surrendered  by  their 
hail,  at  any  time ;  even  during  their  examination  before  the  commissioners. (e) 
So  where  a  bankrupt,  having  escaped  out  of  the  custody  of  the  marshal, 
and  being  at  large,  surrendered  to  a  commission  subsequently  issued,  and 
received  the  protection  conferred  by  the  statute ;  the  court  held,  that  he 
might  notwithstanding  be  retaken,  and  detained  in  custody  by  the  mar- 
shal.(/) 

At  present,  the  privilege  of  bankrupts  from  arrest,  in  coming  to  surren- 
der, &c.  depends  on  the  statute  6  Geo.  IV.  c.  16, (r/)  by  which  it  is  enacted, 
that  "  the  bankrupt  shall  be  free  from  arrest  or  imprisonment,  by  any  cre- 
ditor, in  coming  to  surrender;  and  after  such  surrender,  during  i\\cforty- 
tivo  days  mentioned  in  the  act,(/i)  and  such  further  time  as  shall  be  allowed 
him  for  finishing  his  examination ;  provided  he  was  not  in  custody  at  the 
time  of  such  surrender  :  And  if  such  bankrupt  shall  be  arrested  for  debt,  or 
on  any  escape  warrant,  in  coming  to  surrender,  or  shall,  after  his  surrender, 
be  so  arrested  within  the  time  aforesaid,  he  shall,  on  producing  the  summons 
under  the  hands  of  the  commissioner  to  the  officer  Avho  shall  arrest  him,  and 
giving  such  officer  a  copy  thereof,  be  immediately  discharged :  And  if  any 
officer  shall  detain  any  such  bankrupt,  after  he  shall  have  shown  such  sum- 
mons to  him,  so  signed  as  aforesaid,  such  officer  shall  forfeit  to  sucii  bank- 
rupt, for  his  own  use,  the  sum  o^  five  pounds  for  every  day  he  shall  detain 

(i)  1  Barn.  &  Cres.  652.    6  Dowl.  &  Ryl.  831,  S.  C. 

(A:)  1  Rose,  260.  (/)  15  Ves.  117. 

\aa)  8  Durnf.  &  East,  .'534.    3  Esp.  Rep.  117,  S.  C. 

{hb)  Ex  parte  Russcl,  1  Rose,  278. 

(c)  Ex  parte  Temple,  2  Rose,  22;  and  see  West  on  Extents,  95.  (d)  Cowp.  156. 

(e)  1  Atk.  238.  1  Hur.  339,  466.  5  Durnf.  &  East,  209.  3  Taunt.  425 ;  and  see  Co.  B.  L. 
133.    Ed.  B.  L.  79. 

(/)  1  Barn.  &  Aid.  308.  And  for  the  cases  in  vvliich  a  bankrupt  is  protected  from  arrest, 
see  I  Rose,  264,  5,  n. ;  and  for  those  in  which  he  may  be  discharged  on  motion,  or  must 
apply  by  petition,  id.  230. 

(y)  ^'ll7,  and  see  stat.  5  Geo.  II.  c.  30,  I  5.  (A)  §  112. 


201 


OF  THE  PRIVILEGE 


such  bankrupt,  to  be  recovered  by  action  of  debt,  in  any  court  of  record  at 
Westminster,  in  the  name  of  such  bankrupt,  with  full  costs  of  suit."  This 
provision  being  similar  in  substance  to  that  of  5  Geo.  II.  c.  30,  §  5,  the  deci- 
sions on  the  latter  statute,  which  have  been  already  stated, (^■)  will  of  course 

be  applicable  thereto. 
[  *202  ]  *And,  by  a  subsequent  clause  in  the  statute  G  Geo.  IV.  c.  16,(a) 
"  it  shall  be  lawful  for  the  commissioners,  at  the  time  appointed  for 
the  last  examination  of  the  bankrupt,  or  any  enlargement  or  adjournment 
thereof,  to  adjourn  such  examination  sine  die  ;  and  he  shall  be  free  from 
arrest  or  imprisonment  for  such  time,  not  exceeding  three  calendar  months 
as  they  shall,  by  indorsement  upon  such  summons  as  aforesaid,  appoint,  with 
the  like  penalty  upon  any  officer  detaining  such  bankrupt,  after  having 
been  shown  such  summons." 

When  a  bankrupt  is  in  prison,  or  in  custody,  under  any  process,  attach- 
ment, execution,  commitment  or  sentence,  the  commissioners  are  authorized 
by  the  statute  6  Geo.  IV.  c.  16(5)  "by  warrant  under  their  hands,  directed 
to  the  person  in  whose  custody  such  bankrupt  is  confined,  to  cause  such 
bankrupt  to  be  brought  before  them,  at  any  meeting,  either  public  or  pri- 
vate ;  and  if  any  such  bankrupt  is  desirous  to  surrender,  he  shall  be  so 
brought  up,  and  the  expense  thereof  shall  be  paid  out  of  his  estate ;  and 
such  person  shall  be  indemnified  by  the  warrant  of  the  commissioners,  for 
bringing  up  such  bankrupt ;  provided  that  the  assignees  may  appoint  any 
persons  to  attend  such  bankrupt  from  time  to  time,  and  to  produce  to  him 
his  books,  papers  and  writings,  in  order  to  prepare  an  abstract  of  his  ac- 
counts, and  a  statement  to  show  the  particulars  of  his  estate  and  efi'ects, 
previous  to  his  final  examination  and  discovery  thereof;  a  copy  of  which 
abstract  and  statement,  the  said  bankrupt  shall  deliver  to  them,  teii  days 
at  the  least  before  his  last  examination." 

When  the  time  of  privilege  allowed  to  the  bankrupt,  in  coming  to  sur- 
render, and  for  finishing  his  examination,  has  expired,  he  is  liable  to  be 
arrested,  till  he  has  obtained  his  certificate,  for  debts  contracted  previous 
to  the  date  and  issuing  of  the  commission,  and  not  proved  or  claimed  un- 
der it.  And  the  court  would  not  discharge  a  defendant  out  of  custody  on 
common  bail,  on  the  ground  that  the  plaintiifs,  at  whose  suit  he  was  arrest- 
ed, were  assignees  under  a  commission  of  bankrupt,  sued  out  above  three 
years  before,  against  the  defendant,  under  which  they  had  received  divi- 
dends ;  though  they  suspended  the  execution  of  the  rule  on  the  sheriff  to 
bring  in  the  body,  to  give  the  defendant  time  to  make  application  to  the 
lord  chancellor  for  relief.(tf)  So,  where  the  plaintiflF  had  petitioned  for  a 
sequestration  in  Scotland  against  the  defendant,  this  was  holden  not  to  be 
a  sufficient  cause  for  discharging  him  on  common  bail.(cf)  And  the  drawer 
of  a  bill  of  exchange,  who  has  paid  the  amount  to  the  holder,  after  a  com- 
mission of  bankrupt  issued  against  the  acceptor,  may  sue  the  latter,  before 
he  has  obtained  his  certificate,  and  arrest  him  upon  the  bill,  notwithstand- 
ing the   holder  has    proved  it   under    the   commission. (e)    But   by   the 

(i)  Ante,  200,  2Q\. 

(«)  §  118,  and  see  stat.  5  Geo.  II.c.  30,  ^  3. 

(b)  I  119,  and  see  stat.  5  Geo.  II.  c.  30,  |  6.   49  Geo.  III.  c.  121,  §  13. 

(c)  8  Durnf.  &  East,  364,  and  see  1  Bos.  &  Pul.  302,  424.    3  Bos.  &  Pul.  6.    9  Price,  391. 
{d)  Carruthers  v.  Farkin,  H.  41  Geo.  III.  E.  B.,  but  see  3  Barn.  &  Cres.  12.    4  Dowl.  &  liyl. 

658,  S.C. 
{e)  3  Maule  &  Sel.  91,  and  see  3  Dowl.  &  Ryl.  269. 


FROM  AllREST.  204 

*statute  G  George  IV.  ch.  10,(«)  "  no  creditor  who  has  brought  [  *20o  ] 
any  action,  or  instituted  any  suit,  against  any  bankrupt,  in  re- 
spect of  a  demand  prior  to  the  bankruptcy,  or  which  might  have  been 
proved  as  a  debt  under  tlic  commi^jsion  against  such  bankrupt,  shall  prove 
a  debt  under  such  commission,  or  have  any  claim  entered  upon  the  pro- 
ceedings under  such  commission,  without  relin([uishing  such  action  or  suit ; 
and  in  case  such  bankrupt  shall  be  in  prison  or  custody,  at  the  suit  of  or 
detained  by  such  creditor,  he  shall  not  prove  or  claim  as  aforesaid,  with- 
out giving  a  suflicient  authority  in  writing,  for  the  discharge  of  such 
bankrupt ;  and  the  proving  or  claiming  a  debt  under  a  commission,  by  any 
creditoi-,  shall  be  deemed  an  election  by  such  creditor  to  take  the  benefit 
of  such  commission,  with  respect  to  the  debt  so  proved  or  claimed :  Pro- 
vided that  such  creditor  shall  not  be  liable  to  the  payment  to  such  bank- 
rupt, or  his  assignees,  of  the  costs  of  such  action  or  suit  so  relinquished 
by  him;  and  that  where  any  such  creditor  shall  have  brought  any  action 
or  suit  against  such  bankrupt,  jointly  with  any  other  person  or  persons, 
his  relinquishing  such  action  or  suit  against  the  bankrupt,  shall  not  affect 
such  action  or  suit  against  such  other  person  or  persons:  Provided  also, 
that  any  creditor  who  shall  have  so  elected  to  prove  or  claim  as  aforesaid, 
if  the  commission  be  afterwards  superseded,  may  proceed  in  the  action,  as 
if  he  had  not  so  elected;  and  in  bailable  actions,  shall  be  at  liberty  to  ar- 
rest the  defendant  de  novo,  if  he  has  not  put  in  bail  below,  or  perfected 
bail  above ;  or  if  the  defendant  has  put  in  and  perfected  such  bail,  to  have 
recourse  against  such  bail,  by  requiring  the  bail  below  to  put  in  and  per- 
fect bail  above,  within  the  first  eight  days  in  term,  after  notice  in  the  Lo7i- 
don  G-azette,  of  the  superseding  such  commission,  and  by  suing  the  bail 
upon  their  recognizance,  if  the  condition  thereof  is  broken." 

In  the  construction  of  a  similar  clause,  in  the  statute  49  Geo.  III.  c. 
121, (^))  it  has  been  holden,  that  the  words  of  the  statute  must  be  taken  to 
relate  to  cases  where  a  party,  who  has  proved  under  a  commission,  arrests 
the  same  person  under  whose  commission  he  has  proved ;(c')  Therefore, 
where  separate  commissions  of  bankruptcy  had  been  issued  against  three 
or  four  partners,  to  which  they  conformed  and  passed  their  examinations, 
and  an  order  was  made  for  allowing  the  joint  creditors  to  prove  their  debts 
under  the  commission  of  one  of  the  three  bankrupts,  under  which  commis- 
sion the  plaintiffs  proved  their  joint  debt,  and  afterwards  sued  all  the 
partners  for  the  same  debt,  and  arrested  one  of  the  other  two,  under  whose 
commission  they  had  not  proved ;  the  court  held,  that  he  was  not  entitled 
to  be  discharged  out  of  custody.(c)  The  election  also  is  confined  to  the 
debt  actually  proved:  Therefore,  where  two  parcels  of  goods  were  sold  at 
different  times,  and  paid  for  by  bills,  and  the  vendee  afterwards  becoming 
bankrupt,  the  vendors  proved  under  the  commission,  for  the  amount  of  the 
first  parcel,  for  which  they  still  held  the  bill  of  exchange ;  and  the  bill 
for  the  other  parcel  having  been  negotiated  by  them  *prior  to  the  [  *20-4  ] 
bankruptcy,  and  being  then  outstanding,  was  afterwards  dishon- 
oured ;  the  court  held  that  the  vendors  were  not  precluded  by  the  above 
statute,  from  suing  the  bankrupt  for  the  amount  of  the  last  parcel  of 
goods. ((/(i)  And  the  proof  of  a  debt  under  the  commission,  cannot  be 
pleaded  in  bar  to  an  action  brought  for  its  recovery ;  though  it  may  be  a 

(rt)  I  59,  and  sec  stat.  40  Geo.  III.  c.  121,  g  U. 

(6)  I  14.  (0  IG  East,  252. 

{aa)  1  Bam.  &  Aid.  121,  and  see  5  Bara.  &  Aid.  95.    2  Dowl.  &  Ryl.  337.    4  Biug.  18. 


202 


OF  THE  PRIVILEGE 


ground  for  the  defendant  to  apply  to  the  court  in  Tvhich  the  action  is 
brouo'ht,  to  stay  the  proceedings,  or  to  the  chancellor,  to  expugne  the 
deht.{l>b)  But  it  seems  that  the  proving  of  a  debt  under  a  commission,  is 
an  election  by  the  creditor,  within  the  statute  49  Geo.  III.  c.  121,  §  14, 
which  deprives  him  of  his  remedy  by  action  against  the  bankrupt,  in  the 
cases  excepted  by  the  statute  5  Geo.  II.  c.  30,  §  9,(ec)  And  where  the 
plaintiiF,  in  an  action  against  a  bankrupt,  makes  his  election  to  proceed 
under  the  commission,  the  defendant  is  entitled  to  have  some  entry  or 
suggestion,  recording  the  election,  put  on  the  record. (c?) 

After  a  bankrupt  has  obtained  his  certificate,  his  privilege  from  arrest 
principally  depends  on  the  statute  6  Geo.  IV.  c.  16,(e)  by  which  it  is  en- 
acted, that  "  every  bankrupt  who  shall  have  duly  surrendered,  and  in  all 
things  conformed  himself  to  the  laws  in  force  concerning  bankrupts,  at  the 
time  of  issuing  the  commission  against  him,  shall  be  discharged  from  all 
debts  due  by  him  when  he  became  bankrupt,  and  from  all  claims  and  de- 
mands thereby  made  proveable  under  the  commission,  in  case  he  shall  ob- 
tain a  certificate  of  such  conformity,  so  signed  and  allowed,  and  subject  to 
such  provisions,  as  thereinafter  directed :  but  no  such  certificate  shall  release 
or  discharge  any  person  who  was  partner  with  such  bankrupt,  at  the  time  of 
his  bankruptcy,  or  who  was  then  jointly  bound,  or  had  made  any  joint 
contract  with  such  bankrupt."(/) 

The  bankrupt  being  discharged,  by  the  above  statute,  from  all  debts 
proveable  under  the  commission,  it  may  not  be  deemed  an  improper  digres- 
sion to  consider,  in  the  next  place,  what  debts  may  or  may  not  be  proved 
under  it.  By  that  statute,(^)  every  person  with  whom  any  bankrupt  shall 
have  really  and  bond  fide  contracted  any  debt  or  demand  before  the  issu- 
ing of  the  commission  against  him,  shall,  notwithstanding  any  prior  act  of 
bankruptcy  committed  by  such  bankrupt,  be  admitted  to  prove  the  same, 
and  be  a  creditor  under  such  commission,  as  if  no  such  act  of  bankruptcy 
had  been  committed :  provided  such  person  had  not,  at  the  time  the  same 
was  contracted,  notice  of  any  act  of  bankruptcy  by  such  bankrupt  com- 
mitted." And  with  regard  to  debts  payable  on  a  future  day,  "any  person 
■who  shall  have  given  credit  to  the  bankrupt  upon  valuable  consideration, 
or  for  any  money  or  other  matter  or  thing  whatsoever,  which  shall  not 
have  become  payable,  when  such  bankrupt  committed  an  act  of  bankruptcy, 
and  whether  such  credit  shall  have  been  given  upon  any  bill,  bond, 
[  *205  ]  note,  or  other  negotiable  *security,  or  not,  shall  be  entitled  to 
prove  such  debt,  bill,  bond,  note,  or  other  security,  as  if  the 
same  was  payable  presently,  and  receive  dividends  equally  with  other  cre- 
ditors, deducting  only  thereout  a  rebate  of  interest  for  what  he  shall  so 
receive,  at  the  rate  of  five  per  cent.,  to  be  computed  from  the  declaration 
of  a  dividend,  to  the  time  such  debt  would  have  become  payable,  according 
to  the  terms  upon  which  it  was  contracted."(a) 

Previously  to  the  above  statute,  contingent  debts,  not  due  at  the  time 
of  issuing  the  commission,  were  not  in  general  proveable  under  it ;  and 
therefore,  where  the  action  was  founded  upon  a  recognizance  of  bail  in 

(bb)  5  Barn.  &  Aid.  95.  (cc)  3  Maule  &  Sel.  78. 

(rf)  6  Taunt.  549. 

(e)  §  121,  and  see  stat.  5  Geo.  II.  c.  30,  |  7.   46  Geo.  III.  c.  135,  §  4. 
(/)  See  Stat.  10  Ann,  c.  15,  §  3. 
iff)  I  47,  and  see  stat.  46  Geo.  III.  c.  135,  §  2. 

(a)  6  Geo.  IV.  c.  16,  |  51,  and  see  stat.  7  Geo.  I.  c.  31,  §  1,  2.  49  Geo.  III.  c.  121,  §  9.  2 
Str.949.    Barnes,101.    3  Wils.  17.    Cowp.22.    Doug.  669.    1  Durnf.  &  East,  17. 


FROM  ARREST.  205 

error,(^>)  or  bail-bond,(c)  or  on  a  bond  given  by  a  member  of  parliament, 
being  a  trader,  under  the  statute  4  Geo.  111.  c.  38,  §  l,(t7)  which  was  not 
forfeited  at  the  time  of  issuing  the  commission,  or  upon  a  promise  of  in- 
demnity'' which  was  tlien  unbroken, (c)  or  upon  a  promissory  note  subse- 
quently indorsed  by  the  bankrupt,( /f')  he  might  have  been  arrested  there- 
on, notwithstanding  his  certificate.  So,  where  the  obligor  is  in  a  bastardy 
bond,  after  the  bond  had  been  forfeited,  became  bankrupt,  and  obtained 
bis  certificate,  the  court  held,  that  the  parish  officers  were  not  precluded 
therel)y  from  recovering  upon  the  bond,  further  expenses  incurred  subse- 
quent to  the  bankruptcy. (//.y)  But  now,  by  G  Geo.  IV.  c,  10,(/t)  "if  a 
bankrupt  shall,  before  the  issuing  of  the  commission,  have  contracted  any 
debt  payable  upon  a  contingency^  which  shall  not  have  happened  before 
the  issuing  of  such  commission,  the  person  with  whom  such  debt  has  been 
contracted  may,  if  he  think  fit,  apply  to  the  commissioners,  to  set  a  value 
upon  such  debt,  and  the  commissioners  are  thereby  reipiired  to  ascertain 
the  value  thereof,  and  to  admit  such  person  to  prove  the  amount  so  ascer- 
tained, and  to  receive  dividends  thereon;  or  if  such  value  shall  not  be  so 
ascertained,  before  the  contingency  shall  have  happened,  then  such  per- 
son may,  after  such  contingency  shall  have  happened,  prove  in  respect  of 
such  debt,  and  receive  dividend  with  the  other  creditors,  not  disturbing 
any  former  dividends;  provided  such  person  had  not,  when  such  debt  was 
contracted,  notice  of  an  act  of  bankruptcy,  by  such  bankrupt  committed." 
This  statute,  however,  is  confined  to  debts  payable  on  a  contingency  : 
And  therefore,  where  the  demand  rests  in  damages^  and  cannot 
be  *ascertained  without  the  intervention  of  a  jury,  it  is  not  prove-  [  *206  ] 
able  under  the  commission. (a)  So  where  the  defendant  cove- 
nanted for  the  due  payment  by  A.  B.  of  a  premium  upon  a  policy  of  insu- 
rance eff"ected  to  secure  a  debt  due  from  A.  B.  to  the  plaintiff;  which  pre- 
mium became  due  June  17th,  and  being  unpaid  by  A.  B.  or  the  defendant, 
was  paid  by  the  plaintifi";  and  on  June  20th,  the  defendant  obtained  his 
certificate  under  a  commission  of  bankrupt ;  the  court  held,  that  his  cer- 
tificate did  not  discharge  him  from  the  amount  of  the  premium.(7*^)  So, 
where  an  action  is  brought  for  the  recovery  of  general  damages,  and  the 
defendant  becomes  bankrupt  between  verdict  and  judgment,  he  is  not  dis- 
charged by  his  certificate. (c)  But  where  the  plaintifi"  in  an  action  of  tres- 
pass,  having  obtained  a  verdict,  signed  final  judgment  after  the  defendant 
had  committed  an  act  of  bankruptcy,  but  before  the  issuing  of  the  commis- 

{h)  2  Str.  1043,  and  see  2  Blac.  Rep.  811.    2  Taunt.  246,  7. 

(c)  1  I5ur.  43G,  but  see  Cowp.  25.  4  Moore,  350.  3  Dowl.  &  Rjl.  533.  2  Bam.  &  Crcs.  626. 
4  Dowl.  &Ryl.  160,  S.  0. 

(rf)  5  Barn.  &  Aid.  250.    8  Moore,  281.    1  Bing.  320,  S.  C,  in  Error. 

(c)  3  Wils.  13.    2  Blac.  Rep.  794,  839. 

{ff)  I  Bing.  281.  8  Moore,  261,  S.  C,  but  see  5  Barn.  &  Cres.  360.  8  Dowl.  &  Ryl.  110, 
S.  U. 

[gj]  1  Barn,  k  Aid.  491.  2  Stark.  Ni.  Pri.  183,  S.  C,  and  sec  5  Maulc  k  Scl.  21.  1  Moore, 
196.  2  .Moore,  326.  8  Taunt.  315,  S.  C.  3  Barn.  &  Aid.  521,  S.  C.  in  Error.  2  Barn.  &  Aid. 
302.    3  Bing.  154. 

(A)  2  56.  And  see  stat.  19  Geo.  IT.  c.  32.  49  Geo.  III.  c.  121,  g  16,  and  6  Geo.  IV.  c.  16. 
§  53,  as  to  the  claim  and  proof  of  debts  on  bottomry  or  respondnitid  bond;',  and  policies  of 
assurance,  where  the  loss  or  contingency  has  not  happened  at  the  time  of  issuing  the  com- 
mission. 

((7)  7  Durnf.  &  East,  612.  {bh)  4  Bing.  209. 

(c)  Ez parte  Charles,  14  East,  197.  2  Mavile  k  Sel.  70.  Wiglilw.  16,  but  see  the  case  of 
Lanijjord  v.  El!U,  E.  25  Geo.  III.  K.  B.  1  11.  Blac.  29,  n.  14  East,  202,  (i),  which  seems  to 
have  been  overruled  by  the  case  Ex  parte  Charles ;  and  sec  4  Bing.  37. 

Vol.  I.— U 


206 


OF  THE  PRIVILEGE 


sio7i ;  the  court  held,  that  the  debt  was  provable  under  a  commission  sub- 
sequently issued,  and  that  the  defendant,  who  had  been  arrested  on  a  capias 
ad  satisfaciendum,  was  entitled  to  be  discharged,  on  obtaining  his  certi- 
ficate.(c?)  So  where  the  plaintiff,  in  an  action  of  assumpsit,  obtained  a 
verdict  against  the  defendant  on  the  4th  June  ;  and  on  the  18th  June^ 
judgment  was  signed  as  of  Trinity  term,  which  commenced  on  the  7th  of 
tiiat  month;  and  on  the  15tli  June,  a  commission  of  bankrupt  issued 
against  the  defendant,  on  an  act  of  bankruptcy  committed  on  the  7th  3Iay 
preceding ;  the  court  held,  that  at  the  time  of  issuing  the  commission,  the 
plaintiff  had  a  debt  proveable  under  it.(e) 

Before  the  making  of  the  statute  49  Geo.  III.  c.  121,  a  surety,  or  person 
liable  for  the  debt  of  another,  could  not  have  come  in  and  proved  the  debt, 
under  a  commission  issued  against  the  principal,  unless  it  had  been  before 
the  issuing  of  the  commission :(/)  nor  could  the  grantee  of  an  annuity 
have  proved  the  value  of  it  as  a  debt  under  the  commission  issued  against 
the  grantor,  unless  the  annuity  had  been  secured  by  bond,  which  was  for- 
feited by  non-payment  of  the  arrears,  before  the  bankpuptcy  :(^)  and  con- 
sequently an  action  might  have  been  maintained  in  these  cases,  notwith- 
standing the  certificate,  for  the  money  paid,  or  arrears  of  the  annuity,  after 
the  issuing  of  the  commission  ;  in  which  the  defendant  might  have  been 
arrested  and  held  to  special  bail.  These  defects  were  remedied  by  the 
above  statute  ;(7i)  by  which  it  was  enacted,  that  "in  all  cases  of  commis- 
sion of  bankrupt  thereafter  to  be  issued,  where,  at  the  time  of  issuing  the 
commission,  any  person  should  be  surety  for,  or  be  liable  for  any  debt  of 

the  bankrupt,  it  should  be  lawful  for  such  surety  or  *person 
[  *207  ]  liable,  if  he  should  have  paid  the  debt,  or  any  part  thereof  in 

discharge  of  the  whole,  (although  he  might  have  paid  the  same 
after  the  commission  should  have  issued,)  and  the  creditor  should  have 
proved  his  debt  under  the  commission,  to  stand  in  the  place  of  the  creditor, 
as  to  the  dividends  upon  such  proof:  and  where  the  creditor  should  not 
have  proved  under  the  commission,  it  should  be  lawful  for  such  surety,  or 
person  liable,  to  prove  his  demand,  in  respect  of  such  payment,  as  a  debt 
under  the  commission,  not  disturbing  the  former  dividends,  and  to  receive 
a  dividend  or  dividends,  proportionably  with  the  other  creditors,  taking 
the  benefit  of  such  commission  :  And  every  person  against  whom  any 
such  commission  of  bankrupt  should  be  awarded,  and  who  should  obtain 
his  certificate  should  be  discharged  of  all  demands,  at  the  suit  of  every 
such  person  having  so  paid,  and  being  enabled  to  prove,  or  to  stand  in  the 
place  of  such  creditor  as  aforesaid,  with  regard  to  his  debt  in  respect  of 
such  suretyship  or  liability,  in  like  manner,  to  all  intents  and  purposes, 
as  if  such  person  had  been  a  creditor  before  the  bankruptcy,  for  the  whole 
of  the  debt  in  respect  of  which  he  was  surety  or  liable  as  aforesaid." 

This  branch  of  the  statute  was  extended  to  all  cases  of  sureties,  where 
relief  could  be  had  under  the  commission,  though  the  money  was  not  paid 
till  after  it  issued. (a)  And  where,  upon  a  dissolution  of  partnership 
between  three  partners,  two  of  the  three  assigned  to  the  other  all  their 

{d)  2  Barn.  &  Cres.  762.  4  Dowl.  &  Rvl.  430,  S.  C. 
[e)  4  Barn.  &  Cres.  880.  7  Dowl.  &  Ryl.  436,  S.  C. 
(/)  3  Wils.  13.    2  Blac.  Rep.  794,  839,  and  see  Doug.  160. 

[g)  2  Blac.  Rep.  1106.    Doug.  97,  393,  519.    9  Ves.>«.  110.    2  Rose,  416.    1  Barn.  &  Aid. 
493,4.    2  Barn.  &  Aid.  802. 

{k)  ?i  8,  17.  {a)  5  Barn.  &  Aid.  12, 


FROM  ARREST.  207 

shares  in  the  partnership  dehts  and  effects,  and  tlie  latter  covenanted  to 
pay  all  debts  then  due  from  the  partnership,  and  to  indemnify  the  two 
from  the  payment  of  the  same,  and  from  all  actions,  kc,  by  reason  of  the 
non-payment  thereof,  and  afterwards  became  bankrupt,  and  a  commission 
issued  against  him,  under  which  he  obtained  his  certificate,  and  afterwards 
the  holder  of  a  bill  accepted  by  the  three  partners,  and  due  before  the 
dissolution  of  the  partnership,  sued  the  two,  and  they  were  ol)li<red  to  pay 
the  bill ;  the  court  held,  that  the  certificate  might  be  pleaded  in  discharge 
of  an  action  brought  by  the  two  against  the  other,  upon  his  covenant. (i) 
And  the  certificate  was  holden  to  be  a  bar,  not  only  to  an  action,  at  the 
suit  of  a  surety,  for  the  recovery  of  money  paid  in  discharge  of  the  original 
debt,  but  to  any  action  for  consequential  damages,  accruing  from  the  non- 
payment by  the  bankrupt  of  such  debt  when  due  :  Therefore,  where  the 
acceptor  of  an  accommodation  bill  brought  an  action  against  the  drawer, 
who  had  become  bankrupt  aiul  obtained  his  certificate,  for  not  providing 
him  with  funds  to  pay  the  bill  when  due,  whereby  he  had  incurred  the 
costs  of  an  action,  and  was  obliged  to  sell  an  estate  in  order  to  raise  money 
to  pay  the  bill,  the  certificate  was  holden  to  be  a  good  bar  to  such  action, (<?) 
But  the  drawer  of  a  bill  of  exchange,  who  has  paid  the  amount  to  the  holder, 
after  a  commission  of  bankruptcy  issued  against  the  acceptor,  may,  we 
have  seen,((Z)  sue  the  latter,  before  he  has  obtained  his  certificate, 
and  arrest  *him  upon  the  bill  notwithstanding  the  holder  has  [  *208  ] 
proved  it  under  the  commission. (aa)  And  where  a  surety  in  a 
warrant  of  attorney,  in  order  to  discharge  himself  from  personal  liability, 
paid  part  of  the  debt  due  to  the  creditor  of  a  bankrupt  who  had  proved 
under  the  commission,  and  thereupon  satisfaction  was  entered  on  the 
record,  the  court  held,  that  this  did  not  fall  within  the  statute  49  Geo. 
III.  c.  1*21,  §  8,  as  being  a  payment  of  part  of  a  debt  in  discharge  of  the 
whole,  and  consequently  that  the  bankrupt's  certificate  was  no  bar  to  an 
action  by  the  surety,  to  recover  the  money  so  paid  by  him.(^J)  So,  a  surety 
in  an  annuity  deed,  who  had  been  compelled  by  the  annuity  creditor,  after 
the  bankruptcy  and  allowance  of  the  certificate  of  the  principal,  to  pay 
several  sums  for  arrears  due  after  the  issuing  of  the  commission,  was 
holden  not  to  be  within  the  statute  49  Geo.  III.  c.  121,  §  8  ;  and  therefore 
might  have  an  action  against  the  principal  for  such  sums,  and  hold  him  to 
bail.(c'(?)  And  such  surety  was  not  entitled,  by  that  statute,  to  prove  the 
value  of  the  annuity  as  a  debt  under  the  commission  :  and  therefore, 
where  such  a  surety  had  redeemed  the  annuity,  subsequently  to  the  bank- 
ruptcy, it  was  holden,  that  he  was  entitled  to  maintain  an  action  for  the 
value  against  the  bankrupt,  who  had  obtained  his  certificate,  although  the 
grantee  had  proved  under  the  17th  section. ((7c?)  And  where  one  of  the 
three  co-sureties,  for  the  payment  of  an  annuity,  paid  money  on  account 
of  it  after  the  bankruptcy  of  the  co-surety,  the  court  held  that  the  latter 
was  liable  to  an  action  for  contribution,  although  ho  had  obtained  his 
certificate  ;  inasmuch  as  one  surety  could  not  prove  the  value  of  an  annuity 
under  the  commission  against  his  co-surety;  but  that  he  could  not  at  law 

(b)  2  Maule  &  Sel.  195. 

(c)  2  Moore,  G02.    8  Taunt.  550.  S.  C.    3  Barn.  &  Aid.  13,  S.  C,  in  Error. 

{d)  A!it<',202.  '    ('la)  3  Maule  &  Sel.  91,  ami  sec  3  Dowl.  k  Rj-1.  269. 

(bb)  5  Barn.  &  Aid.  852.    1  Dowl.  &  Ryl.  521,  S.  C,  and  see  2  Maule  &  Sel.  551. 
(cc)  4  Maule  &  Sel.  333,  and  see  2  Moore,  G44.    8  Taunt.  584,  S.  C. 

(rf(/)  3  liarn.  &  Aid.  180.   8  Moore,  480.    1  Bing.  413,  S.  C.    13  Price,  24,  S.  C.  in  Error :  but 
see  Stat.  G  Geo.  IV.  c.  IG,  g  55. 


208 


OF  THE  PRIVILEGE 


bo  compcllctl  to  pay  more  than  one-tbird  of  the  sum  paid  on  account  of 
the  annuity,  although  the  third  surety  had  become  insolvent  at  the  time 
of  such  payment.  6  Barn.  &  Ores.  689.  Bail  to  the  sheriff,  being  only 
answerable  for  the  defendant's  appearance, (e)  or  bail  above,  who  might 
have  discharged  themselves  by  rendering  the  defendant, (/)  were  also  not 
considered  as  sureties  for,  or  liable  for  the  debt  of  a  bankrupt,  within  the 
meaning  of  the  above  statute. 

The  statute  49  Geo.  III.  c.  121,  was  repealed  by  the  statute  6  Geo.  IV. 
c.  16,(^)  which  came  into  operation  on  September  1st,  1825.(7t)  And  by  the 
latter  statute  it  is  enacted,  that  "  any  person  who,  at  the  issuing  of  the  com- 
mission, shall  be  surety  or  liable  for  any  debt  of  the  bankrupt,  or  hail  for 
the  ba7ik)'upt,  either  to  the  sheriff,  or  to  the  action,  if  he  shall  have  paid 
the  debt,  or  any  part  thereof  in  discharge  of  the  whole  debt,  (although  he 
may  have  paid  the  same  after  the  commission  issued,)  if  the  creditor  shall 
have  proved  his  debt  under  the  commission,  shall  be  entitled  to  stand  in  the 
place  of  such  creditor,  as  to  the  dividends,  and  all  other  rights  under  the  said 
commission,  which  such  creditor  possessed,  or  would  be  entitled  to,  in 
respect  of  such  proof;  or  if  the  creditor  shall  not  have  proved  under  the  com- 
mission, such  surety  or  person  liable,  or  bail,  shall  be  entitled  to  prove  his 
demand,  in  respect  of  such  payment,  as  a  debt  under  the  commission,  not 
disturbing  the  former  dividends,  and  may  receive  dividends  with  the  other 
creditors,  although  he  may  have  become  surety,  liable,  or  bail  as  aforesaid, 
after  an  act  of  bankruptcy  committed  by  such  bankrupt ;  provided  that  such 
person  *had  not,  when  he  became  surety  or  bail  or  so  liable  as 
[  *209  ]  aforesaid,  notice  of  any  act  of  bankruptcy,  by  such  bankrupt  com- 
mitted, "(a)  The  decisions  on  this  statute  will  of  course  be  similar 
to  those  on  the  49  Geo.  III.  c.  121,  §  8,  IT. 

By  the  same  statute,(J)  it  is  enacted  that  "any  annuity  creditor  of  any 
bankrupt,  by  whatever  assurance  the  same  be  secured,  and  whether  there 
were  or  not  any  arrears  of  such  annuity  due  at  the  bankruptcy,  shall  be 
entitled  to  prove  for  the  value  of  such  annuity ;  which  value  the  commis- 
sioners shall  ascertain,  regard  being  had  to  the  original  price  given  for  the 
said  annuity,  deducting  therefrom  such  diminution  in  the  value  thereof,  as 
shall  have  been  caused  by  the  lapse  of  time  since  the  grant  thereof,  to  the 
date  of  the  commission."  In  the  construction  of  a  similar  clause,  in  the 
statute  49  Geo.  III.  c.  121, (c)  it  was  determined,  that  the  bankruptcy  and 
certificate  of  one  of  several  grantors  of  an  annuity,  who  had  jointly  and 
severally  covenanted  for  its  payment,  as  well  as  given  a  warrant  of  attorney 
to  confess  joint  and  several  judgments,  discharged  the  bankrupt  ;{d}  but  did 
not  affect  the  liability  of  the  other  grantors  ;  and  the  act  made  no  difference 
in  this  respect  between  principals  and  sureties. ((i) 

And,  by  another  clause  in  the  same  statute, (t't^)  "it  shall  not  be  lawful  for 
any  person  entitled  to  any  annuity  granted  by  any  bankrupt,  to  sue  any 
person  who  may  be  collateral  surety  for  the  payment  of  such  annuity,  until 
such  annuitant  shall  have  proved  under  the  commission  against  such  bank- 
rupt, for  the  value  of  such  annuity,  and  for  the  payment  thereof;  and  if  such 

(e)  6  Taunt.  329, 30.    2  Marsh.  37.    192,  S.  C. 

(/)  4  Barn.  &  Aid.  493.  (ff)  §  52.  (h)  4  Bing.  212. 

{a)  The  words  'or  that  he  was  insolvent,  or  had  stopped  payment,'  which  were  inserted 
in  the  stat.  49  Geo.  III.  c.  121,  §  8,  are  here  omitted. 

(i)  ^  54,  and  see  stat.  49  Geo.  III.  c.  121,  ^  17.  (c)  §  17. 

(d)  4  Taunt.  90,  and  see  id.  460,  584.    16  East,  252.  (ee)  g  55. 


FROM  ARREST.  209 

surety,  after  such  proof,  pay  the  amount  proved  as  aforesaid,  he  shall  be 
thereby  discharged  from  all  claims  in  respect  to  such  annuity :  and  if  such 
surety  shall  not  (before  any  payment  of  the  said  annuity,  subsequent  to  the 
bankruptcy,  shall  have  become  due,)  pay  the  sum  so  proved  as  aforesaid,  he 
may  be  sued  for  the  accruing  payments  of  such  annuity,  until  such  annui- 
tant shall  have  paid  or  satisfied  the  amount  so  proved,  with  interest  thereon 
at  the  rate  of /our  per  cejit.  per  anmim^  from  the  time  of  notice  of  such 
proof,  and  of  the  amount  thereof,  being  given  to  such  surety  ;  and  after  such 
payment  or  satisfaction,  such  surety  shall  stand  in  the  place  of  such  annui- 
tant, in  respect  of  such  proof  as  aforesaid,  to  the  amount  so  paid  or  satisfied 
as  aforesaid,  by  such  surety  ;  and  the  certificate  of  the  bankrupt  shall  be  a 
discharge  to  him,  from  all  claims  of  such  annuitant,  or  of  such  surety,  in 
respect  of  such  annuity:  Provided  that  such  surety  shall  be  entitled  to  cre- 
dit in  account  with  such  annuitant,  for  any  dividends  received  by  such 
annuitant  under  the  commission,  before  such  surety  shall  have  fully  paid 
or  satisfied  the  amount  so  proved  as  aforesaid." 

Interest  is  proveable  by  the  above  statute,(/)  though  not  reserved  on 
bills  of  exchange  or  promissory  notes,  over-due  at  the  time  of 
issuing  the  'commission.  And  where  an  action  is  brought  for  the  [  *210  ] 
recovery  of  a  debt  due  before  the  bankruptcy,  the  bankrupt  is  dis- 
charged by  his  certificate,  from  the  payment  of  interest{aa)  and  costs,{bb)  as 
well  as  the  debt ;  and  that,  whether  the  action  was  brought  before,  or  a.her{ec) 
the  issuing  of  the  commission  ;  and  if  before,  wdiether  the  bankruptcy  hap- 
pened before  verdict,((:?)  or  after  verdict  and  before  final  judgment. (e)  And 
a  certificate  will  discharge  a  cofpiovit^  given  after  a  secret  act  of  bankrptcy, 
for  a  debt  previously  due,  with  interest  and  costs. (^')  So  where,  on  a  com- 
mission of  bankrupt  being  sued  out  against  the  plaintiff",  he  brought  an  action 
of  trespass  against  the  commissioners  for  false  imprisonment,  and  was  non- 
suited, and  they  entered  up  judgment  accordingly,  and  the  commission  was 
afterwards  superseded,  on  which  another -was  sued  out,  founded  on  the  same 
act  of  bankruptcy  as  the  first,  under  which  the  plaintiff  obtained  his  certifi- 
cate, and  the  defendants  afterwards  charged  him  in  execution  for  the  costs  of 
the  non-suit,  the  court  of  Common  Pleas  held,  that  he  was  entitled  to  be 
discharged  out  of  custody ;  as  such  costs  were  proveable  under  the  second 
commission. (</)  And,  by  the  statute  0  Geo.  IV.  c.  16,(7t)  "  if  any  plaintiff, 
in  any  action  at  law  or  suit  in  equity,  or  petition  in  bankruptcy  or  lunacy, 
shall  have  obtained  any  judgment,  decree  or  order,  against  any  person  who 
shall  thereafter  become  bankrupt,  for  any  debt  or  demand,  in  respect  of 
which  such  plaintiff  or  petitioner  shall  prove  under  the  commission,  such 
plaintiff'  or  petitioner  shall  also  be  entitled  to  prove  for  the  costs  which 
he  shall  have  incurred  in  obtaining  the  same,  although  such  costs  shall  not 
have  been  taxed  at  the  time  of  the  bankruptcy."  But  where  the  plaintiff" 
is  non-suited,(/)  or  has  a  verdict  against  him,(.t)  and  afterwards  becomes 

(/)  §  57,  and  see  Co.  B.  L.  7  Ed.  18G.  (an)  Cowp.  138. 

(66)  2  Str.  1196.  IWils.  41,S.  C.  6  Durnf.  &  East,282.  3  Maule  &Sel.  32G,  K.  B.  2  Blac. 
Rep.  1317.  1  n.  Blac.  29.  1  Bos.  &  Pul.  134,  in  nods.  2  New  Rep.  C.  P.  190.  3  Barn.  & 
Ores.  762,  in  nolis. 

{cc}  2  New  Rep.  C.  P.  190,  and  see  4  Moore,  350.    2  Brod.  &  Bing.  8,  S.  C. 

(d)  1  H.  H.  Blac.  29,  but  SCO  11  Ves.  640.    2  New  Rep.C.  P.  101,  [a),  scmb.  contra. 

\e)  2  Blac.  Rep.  1317. 

(/)  1  Chit.  Rep.  16,  but  see  2  Taunt.  68.  2  Rose,  112,  S.  C.  temb.  contra :  and  see  4  Bing.  37. 

(<7)  7  Moore,  614.    1  Bing.  189,  S.C.  (A)  §  58. 

(j)  Fx  parte  Todd,  cited  in  3  Wils.  270,  but  see  5  Durnf.  &  East,  365.    1  Bos.  &  Pul.  134, 

{k)  See  next  page. 


21Q  OF  THE  PRIVILEGE 

bankrupt  before  judgment,  the  costs  not  being  proveable  under  the  com- 
mission, are  not  barred  by  his  certificate.  And  where  a  bankrupt,  sued  as 
executor,  pleaded  a  false  plea,  between  the  issuing  of  the  commission  and 
the  obtaining  of  his  certificate,  he  was  holden  to  be  liable  to  costs  for  such 
plea,  de  bonis  proprus.{l)  So,  the  costs  of  a  suit  in  Chancery,  directed  to 
be  paid  by  an  award,  made  before  the  bankruptcy  of  the  defendant,  but 
which  costs  were  not  taxed  till  after  he  became  bankrupt,  cannot  be  proved 

under  the  commission ;  but  the  bankrupt  remains  liable  to  be 
[  *211  ]    attached  for  the  non-payment  of  them. (7??)    *And  in  a  late  case  it 

was  holden,  that  a  certificate  is  no  bar  to  an  attachment  for  the 
non-payment  of  costs,  pursuant  to  a  rule  of  court  made  before  the  bank- 
ruptcy, but  which  were  not  taxed  until  the  day  of  issuing  the  commis- 
sion.(a) 

The  bankrupt  laws  do  not  extend  to  debts  contracted  in  foreign  countries : 
And  where  the  plaintiff  resided  here,  the  court  would  not  order  an  exonere- 
tur  to  be  entered  on  the  bail-piece,  on  the  ground  that  the  debt  was  con- 
tracted while  the  defendant  was  resident  in  a  foreign  country,  and  before  he 
became  a  bankrupt  by  the  laws  of  that  country,  though  he  might  have  ob- 
tained his  certificate  there. (5)  But  an  insolvent's  certificate,  obtained  in 
Neivfoundland,  under  the  statute  49  Geo.  III.  c.  27,  §  8,  may  be  pleaded 
in  bar  to  an  action  brought  in  this  country,  for  a  debt  contracted  here  prior 
to  the  insolvency.(c)  And  a  debt  contracted  in  Ungland,  by  a  trader 
residing  in  Scotland,  is  barred  by  a  discharge  under  a  sequestration  issued 
in  conformity  to  the  statute  54  Geo.  III.  c.  137,  in  like  manner  as  debts 
contracted  in  Scotlcmd.[d)  So  a  certificate,  obtained  under  an  Irish  com- 
mission of  bankruptcy,  has  been  holden  to  be  a  bar  to  an  action  brought 
in  this  country  for  a  demand  arising  upon  a  bill  of  exchange  drawn  in 
Ireland^  and  payable  by  the  defendant  who  resided  there. (e)  But  a  bill 
of  exchange  drawn  by  the  defendant  in  Ireland,  and  accepted  and  paid 
by  the  plaintifis  in  England,  is  a  debt  contracted  in  England,  and  cannot 
therefore  be  discharged  by  a  certificate  under  an  Irish  commission. (/) 

Before  the  making  of  the  statute  6  Geo.  IV.  c.  16,  a  bankrupt  who  had 
obtained  his  certificate,  could  not  have  been  arrested,  in  the  King's  Bench, 
upon  a  subsequent  promise,  to  pay  a  debt  due  before  his  bankruptcy  ',{g) 
though  it  was  otherwise  in  the  Exchequer. (/«)  And  now,  by  that  statute,(^) 
"  no  bankrupt,  after  his  certificate  of  conformity  shall  have  been  allowed, 

contra;  -which  cases  seem  to  have  been  overruled  hj  Ex  parte  Charles,  14  East,  197,  and  see 
llVes.  646.    7  Moore,  614.    1  Bing.  189,  S.  C.  Ed.  B.  L.  127,  8,  9. 

{k)  5  Taunt.  778.    1  Marsh.  346,  S.  C,  and  see  4  Bing.  57. 

(I)  3  Bur.  1368.    1  Blac.  Rep.  400,  S.  C. 

(tw)  9  East,  318,  and  see  the  case  Ex  parte  Sncaps,  Co.  B.  L.  7  Ed.  211,  12,  but  see  7  Price, 
209.  (a)  Fisher  v.  Coates,  E.  8  Geo.  IV.  K.  B. 

(h)  8  Durnf.  &  East,  609,  and  see  2  H.  Blac.  553.  1  East,  6.  2  Chit.  Rep.  53,  55.  3  Moore. 
244.  1  Brod.  &  Bing.  13,  S.  C,  but  see  Ballantine  v.  G aiding ,11.  24  Geo.  III.  K.  B.  Co.  B.  L, 
7  Ed.  464.    4  Durnf.  &  East,  185,  6.    5  East,  124. 

(c)  3  Moore,  623.     1  Brod.  &  Bing.  294,  S.  C. 

\d)  3  Barn.  &  Cres.  12.     4  Dowl.  &  Rvl.  658,  S.  C. 

(e)  Ballantine  v.  Golding,  M.  24  Geo.  ill.  K.  B.  Co.  B.  L.  7  Ed.  464.  4  Durnf.  &  East, 
185,  6,  S.  C,  and  see  2  H.  Blac.  553. 

(/•)  4  Barn.  &  Aid.  654. 

(g)  6  Barn.  &  Aid.  116.  2  Dowl.  &  Ryl.  240,  S.  C,  and  see  2  Bur.  736.  2  Ken.  436,  S.  C. 
3  Maule  &  Sel.  595,  but  see  Drew  v.  Jefferies,  E.  26  Geo.  III.  K.  B.  8  Price,  531,  sm6. 
contra. 

(h)  8  Price,  526,  and  see  Cowp.  549.  2  H.  Blac.  116.  5  Esp.  Rep.  198.  6  Taunt.  563. 
9  Price,  19,  20,  27.     1  Bing.  281. 

(t)  2  131. 


FROM  ARREST.  211 

under  any  commission  of  bankrupt  alrendy  issued,  or  hereafter  to  be  issued, 
shall  be  liable  to  pay  or  satisfy  any  debt,  claim  or  demand,  from  which  he 
shall  have  been  discharged  by  virtue  of  such  certificate,  or  any  part  of 
such  debt,  claim  or  demand,  upon  any  contract,  promise  or  agreement, 
made  or  to  be  made  after  the  suing  out  of  the  commission,  unless  such 
promise,  contract,  or  agreement  be  made  in  writing,  signeil  by  the  bank- 
rupt, or  by  some  person  thereto  lawfully  authorized,  in  writing,  by  such 
bankrupt." 

*When  a  bankrupt  is  clearly  entitled  to  the  benefit  of  his  cer-  [  "212  ] 
tificate,  he  may  be  discharged  in  two  ways  :  1st,  by  pleading  his 
certificate,  if  in  time ;  and  secondly,  by  applying  to  a  judge,  on  an  afllidavit 
of  the  certificate,(a)  under  the  statute  <!  Geo.  IV.  c.  l<J,(/>)  by  which  it  is 
enacted,  that  "  any  bankrupt  who  shall,  after  his  certificate  shall  have 
been  allowed,  be  arrested  for  any  debt,  claim  or  demand,  thereby  made 
proveable  under  the  commission,  against  such  bankrupt,  shall  be  dis- 
charged upon  common  bail ;  And  if  any  such  bankrupt  shall  be  taken  in 
execution,  or  detained  in  prison  for  such  debt,  claim  or  demand,  where 
judgment  has  been  obtained  before  the  allowance  of  his  certificate,  it  shall 
be  lawful  for  any  judge  of  the  court  wherein  judgment  shall  have  been  so 
obtained,  on  such  bankrupt  producing  his  certificate,  to  order  any  officer 
who  shall  have  such  bankrupt  in  custody  by  virtue  of  such  execution,  to 
discharge  such  bankrupt,  without  exacting  any  fee ;  and  such  officer  shall 
be  thereby  indemnified  for  so  doing."  But  where  the  commission, (cc)  or 
certificate,(c?tZ)  appears  to  have  been  fraudulent,  or  unduly  obtained,  the 
court  will  not  discharge  the  defendant  upon  common  bail.  And  where  the 
validity  of  the  commission  is  disputed,  the  court  it  seems  will  in  general 
direct  it  to  be  tried  on  a  feigned  issue,  notwithstanding  the  certificate, 
before  they  discharge  the  defendant. (ce)  But  where  the  defendant  in  an 
action  had  become  bankrupt,  and  obtained  his  certificate,  after  which  pro- 
ceedings were  taken  against  the  bail,  the  court  of  King's  Bench  relieved 
them  on  motion,  without  directing  an  issue  to  try  the  fact  of  the  bank- 
rupt's being  a  trader ;  the  certificate,  by  the  statute  5  Geo.  II.  c.  30,  §  7 
&  13,(/)  being  made  sufficient  evidence  of  the  trading,  &c.(<7)  The  court 
of  Common  Pleas  would  not  formerly  have  relieved  a  bankrupt,  in  a  sum- 
mary way,  where  his  goods  were  taken  in  execution  under  di  fieri  facias, 
after  he  had  obtained  his  certificate ;  and  therefore  if  he  had  not  obtained 
his  certificate  in  time,  so  as  to  plead  it,  he  must  have  brought  an  audita 
querela  :{h)\Y\  But  in  a  modern  case,  where  a  fieri  facias  issued  against 
the  goods  of  a  bankrupt,  before  he  had  obtained  his  certificate,  and  was 
not  executed  till  after,  the  court  ordered  the  goods  to  be  restored ;  for  it 
is  now  the  practice  to  give  that  relief  in  a  summary  way,  which  might  be 
obtained  by  audita  <iuerela.{i) 

(a)  Doug.  676,  and  see  1  Wils.  41.     Barnes,  386.     1  II.  Blac.  29. 

h)  §  126,  and  see  stat.  5  Geo.  II.  c.  30,  §  7,  13. 

(cc)  2  Blac.  Hep.  725.     Cowp.  824,  but  set'  5  Moore,  21. 

(rfrf)  Doug.  228.     2H.  Blac.  1.    2  Bos.  &  Pul.  390.    6  Taunt.  75. 

lee)  Veo  v.  Allen,  H.  28  Geo.  III.  K.  B.    6  Taunt.  75. 

(/)  And  see  stat.  6  Geo.  IV.  c.  IG,  ^  126. 

Iff)  1  Barn.  &  Aid.  332,  and  see  Ed.  B.  L.  415. 

(A)  Barnes,  204,  20G,  and  see  1  Durnf.  &  East,  361. 

(t)  1  Bos.  &  Pul.427,  but  see  1  Moore  &  P.  261.     4  Bing.  493,  S.  C. 

[1]  In  a  late  case,  the  court  of  Common  Pleas,  adhered  to  this  doctrine.     1  Moore  &  P 
261.    4Bing.  493,  S.  C. 


212 


OF  THE  PRIVILEGE 


Insolvent  debtors  and  fugitives,  discharged  under  occasional  insolvent 
act3,(/c)  were  not  liable  to  be  arrested  for  debts  contracted  pn'or  to  the 
times  prescribed  by  the  acts.     And,  in  the  Common  Pleas,  an 
[  *213  ]  insolvent  *discharged  under  the  41  Geo.  III.  c.  70,  could  not 
have  been  holden  to  bail,  on  a  bill  drawn  and  indorsed  over  by 
liim,  previous  to   the   1st  March,  1803,  though  not   due  till   after  that 
period. (rt)     But  insolvent  debtors  and  fugitives,  discharged  under  occa- 
sional insolvent  acts,  were  formerly  liable  to  be  arrested,  for  debts  con- 
tracted after  the  time  prescribed  in  the  acts,  and  before  they  were  actually 
discharged. (6)     And  the  clauses  respecting  fugitives,  in  those  acts,  did 
not  extend  to  persons  who  had  constantly  resided  abroad  ;{c)  or  who  had 
been  abroad  merely  in  the  course  of  their  trade,  and  not  for  the  purpose 
of  avoiding  their  creditors.(cZ)     A  debt  depending  upon  a  contingency,  at 
the  time  of  a  party's  discharge  under  the  insolvent  act,  18  Geo.  III.  c. 
52,  was  not  thereby  discharged. (e)     So,  a  party  discharged  under  the  51 
Geo.  III.  c.  125,  was  holden  to  be  liable  to  his  surety  for  the  arrears  of 
an  annuity,  due  since  his  discharge,  which  the  surety  had  been  obliged  to 
V^J'iff)    ^^^  ^^^  obligors  in  a  bastardy  bond,   discharged  under  the 
general  insolvent  act,  1  Geo.  IV.  c.  110,  subsequently  to  a  judgment  on 
the  bond,  were  deemed  liable  for  expenses  incurred,  in  respect  of  the  bas- 
tard, subsequently  to  their  discharge. (<7^)     But  where  a  party  had  joined 
in  a  bond  with  the  grantor  of  an  annuity,  to  secure  the  payment  of  it,  and 
afterwards  obtained  his  discharge  under  the  insolvent  act,  having  duly 
inserted  the  bond  in  his  schedule,  the  court  held,  that  he  could  not  be 
arrested  upon  the  bond,  for  arrears  of  the  annuity  afterwards  becoming 
due.(AA)  In  the  King's  Bench,  it  has  been  determined,  that  an  insolvent  who 
has  taken  the  benefit  of  the  54  Geo.  III.  c.  28,  is  not  liable  to  be  arrested, 
upon  a  subsequent  promise,  to  pay  a  debt  contracted  prior  to  the  day  men- 
tioned in  the  act ;(«)  though  it  has  been  otherwise  ruled  in  the  Common 
Pleas. (Z:;^)     And,  in  the  latter  court,  a  cognovit  given  by  an  insolvent  after 
his  discharge,  upon  proceedings  commenced  before,  has  been  deemed  to  con- 
stitute a  new  promise,  upon  which  he  becomes  liable,  notwithstanding  his 
discharge. (^) 

By  the  last  general  insolvent  act,(wi)  the  court,  commissioner,  or  justices 
therein  mentioned,  are  authorized,  "  upon  the  prisoner's  swearing  to  the 
truth  of  his  or  her  petition  and  schedule,  and  executing  such  warrant  of 
attorney  as  is  thereinafter  directed,  to  a  judge  that  such  prisoner  shall  be  dis- 
charged from  custody,  and  entitled  to  the  benefit  of  that  act,  at  such 
[  *214  ]  time  as  the  said  court,  commissioner,  or  justices,  shall  direct,  *in 

[k)  See  the  statutes  37  Geo.  III.  c.  112.  41  Geo.  III.  c.  70.  44  Geo.  III.  c.  108.  45  Geo. 
IIL  c.  3.  46  Geo.  III.  c.  108.  49  Geo.  III.  c.  115.  51  Geo.  III.  c.  125.  52  Geo.  III.  c.  165. 
53  Geo.  III.  c.  6.     54  Geo.  III.  c.  28. 

(a)  3  Bos.  &  Pul.  394. 

(b)  Cowp.  527,  and  see  stat.  53  Geo.  III.  c.  102,  ^  30.  (c)  1  Wils.  85. 

(d)  1  Ken.  380.     Say.  Rep.  308,  S.  C. 

[e]  2  Chit.  Rep.  448,  and  see  2  Blac.  Rep.  1217. 

Iff)  2  Maule  &  Sel.  551,  and  see  2  Black  Rep.  1217.     4  Taunt.  460. 

(gff)  3  Bing.  154.  (hh)  5  Barn.  &  Ores.  581.    8  Dowl.  &  Ryl.  339,  S.  C. 

(ij  3  Maule  &  Sel.  595.  4  Dowl.  &  Ryl.  154,  and  see  2  Str.  1233.  2  Blac.  Rep.  724,  798.  6 
Barn.  &  Aid.  116,  17,  accord.,  but  see  Best  v.  Barber,  or  Barker,  M.  23  Geo.  III.  K.  B.  8 
Price,  533,  semb.  contra. 

(kk)  6  Taunt.  563,  and  see  1  New  Rep.  C.  P.  134,     8  Price,  526,  531.    Ante,  211. 

(I)  4  Bing.  37. 

{m)  7  Geo.  IV.  c.  57,  §  46,  and  see  stat.  53  Geo.  III.  c.  102,  ?  29.  56  Geo.  III.  c.  102.  1 
Geo.  IV.  c.  119,  2  26.    3  Geo.  IV.  c.  123.    5  Geo.  IV.  c.  61.    7  Geo,  IV.  c.  57,  ^  10,  50,  51,  63. 


FROM  ARREST.  2U 

pursuance  of  the  provisions  thereinafter  contained  in  that  belialf,  as  to 
the  several  debts  and  sums  of  money  due,  or  claimed  to  be  due,  at  the  time 
of  filing  such  prisoner's  petition,  from  such  pri^-oner,  to  the  several  persons 
named  in  his  or  her  schedule  as  creditors,  or  cluimin<j;  to  be  creditors  for  the 
same  respectively;  or  for  ^\•hic•h  such  persons  shall  liavc;;ivcn  credit  to  such 
prisoner,  before  the  time  of  filing  such  petition,  and  which  were  not  then 
payable ;  and  as  to  the  claims  of  all  other  persons,  not  known  to  such  pri- 
soner, at  the  time  of  such  adjudication,  who  may  be  indorsees  or  holders 
of  any  negotiable  security  set  forth  in  such  schedule." 

But  by  a  subsequent  clause  of  that  act,(rt)  "  in  all  cases  ■where  it  shall  liave 
been  adjudged,  that  any  sucli  prisoner  shall  be  so  discharged,  and  so  entitled 
as  aforesaid,  at  some  future  period,  such  prisoner  shall  be  subject  and  liable 
to  be  detained  in  prison,  and  to  be  arrested  and  charged  in  custody,  at  the 
suit  of  any  one  or  more  of  his  or  her  creditors,  with  respect  to  whom  it  shall 
have  been  so  adjudged,  at  any  time  before  such  period  shall  have  arrived,  in 
the  same  manner  as  he  or  she  would  have  been  subject  and  liable  thereto,  if 
that  act  had  not  passed.  Provided  nevertheless,  that  when  such  period  shall 
have  arrived,  such  prisoner  shall  be  entitled  to  the  benefit  and  protection  of 
that  act,  notwithstanding  that  he  or  she  might  have  been  out  of  actual  cus- 
tody, during  all  or  any  part  of  the  time  subsequent  to  such  adjudication,  by 
reason  of  such  prisoner  not  having  been  arrested  or  detained  during  such 
time,  or  any  part  thereof."  Previously  to  the  above  act,  where  a  defend- 
ant was  ordered  by  the  insolvent  debtors'  court  to  remain  in  custody,  at 
the  suit  of  certain  creditors  by  name,  until  sixteen  months  had  expired, 
and  was  found  at  large  within  six  months  ;  the  court  held,  under  the  statute 
3  Geo.  IV.  e.  123,  that  any  of  his  scheduled  creditors,  though  not  named 
in  the  order,  might  arrest  him,  and  cause  him  to  be  confined,  until  the  six- 
teen  montlis  were  expired. (i) 

The  effect  of  the  discharge  of  an  insolvent  debtor  is  declared,  and  mode  of 
relieving  him  when  arrested  pointed  out,  by  the  statute  7  Geo.  IV.  c.  o7,(c) 
by  which  it  is  enacted,  that  "no  person  Avho  shall  have  become  entitled  to 
the  benefit  of  that  act,  by  any  such  adjudication  as  aforesaid,  shall,  at  any 
time  thereafter  be  imprisoned,  by  reason  of  the  judgment  so  as  aforesaid 
entered  up  against  him  or  her,  according  to  that  act,  or  for  or  by  reason  of 
any  debt  or  sum  of  money,  or  costs,  with  respect  to  which  such  person  shall 
have  become  so  entitled,  or  for  or  by  reason  of  any  judgment,  decree  or 
order  for  payment  of  the  same ;  but  that  upon  every  arrest  or  detainer  in 
prison,  upon  any  such  judgment  so  entered  up  as  aforesaid,  or  for  or  by  rea- 
son of  any  such  debt  or  sum  of  money,  or  costs,  or  judgment  decree  or  order 
for  payment  of  the  same,  it  shall  and  may  be  lawful  for  any  judge  of  the 
court  from  which  any  process  shall  have  issued  in  respect  thereof,  and  such 
judge  is  thereby  required,  upon  proof  made  to  his  satisfaction,  that 
the  cause  of  such  arrest  or  *detainer  is  such  as  thereinbefore  men-  [  *215  ] 
tioned,  to  release  such  prisoner  from  custody,  unless  it  shall  appear 
to  such  judge,  upon  inquiry,  that  such  adjudication  as  aforesaid  was  made 
without  due  notice,  where  notice  is  by  that  act  required,  being  given  to  or 
acknowledged  by  the  plaintift",  or  such  process,  or  being  by  him  or  her  dis- 
pensed with,  by  the  acceptance  of  a  dividend  under  that  act,  or  otherwise  ; 
and  at  the  same  time,  if  such  judge  shall  in  his  discretion  think  fit,  it  shall 


a)  §  55.  {b)  4  Dowl.  &  Ryl.  347,  and  see  id.  216. 

c)  I  60,  and  see  stat.  I  Geo.  lY.  c.  119,  §  26. 


215  OF  THE  PRIVILEGE  FROM  ARREST. 

and  may  be  lawful  for  him  to  order  such  plaintiff,  or  any  person  or  persons 
suing  out  such  process,  to  pay  such  prisoner  the  costs  which  he  or  she  shall 
have  incurred  on  such  occasion,  or  so  much  thereof  as  to  such  judge  shall 
seem  just  and  reasonable,  such  prisoner  causing  a  common  appearance 
to  bo  entered  for  him  or  her  in  such  action  or  suit."  Where  a  party  is 
arrested  for  a  debt  for  which  he  has  been  discharged  under  the  insolvent 
act,  and  gives  bail,  the  court  will  order  the  bail  bond  to  be  delivered  up 
to  be  cancelled. (a)  But  though  certificated  bankrupts,  or  persons  dis- 
charged under  insolvent  acts,  are  privileged  from  arrest,  yet  the  sheriff, 
or  his  officer,  is  not  liable  to  an  action  of  false  imprisonment  for  arresting 
thcm.(&) 

Aliens  have,  in  general,  no  privilege  from  arrest :  But,  in  order  to  protect 
foreigners,  residing  in  this  kingdom,  who  had  quitted  their  own  country  in 
consequence  of  the  French  Revolution,  it  was  enacted  by  the  statute  38 
Geo.  III.  c.  50,  §  9,(c)  that  ^^  aliens  abiding  in  this  kingdom,  having  quitted 
their  respective  countries  by  reason  of  any  revolution  or  troubles  in  France, 
or  in  countries  conquered  by  the  arms  of  France,  should  not  be  liable  to 
be  arrested,  imprisoned,  or  held  to  bail,  or  to  find  any  caution  for  their  forth- 
coming or  paying  any  debt,  nor  to  be  taken  in  execution  on  any  judgment, 
nor  by  any  caption,  for  or  by  reason  of  any  debt  or  other  cause  of  action, 
contracted  or  arising  in  any  parts  beyond  the  seas,  other  than  the  dominions 
of  his  majesty,  while  such  aliens  were  not  within  the  said  dominions  of  his 
majesty ;  and  in  case  any  such  alien  should  be  arrested,  imprisoned,  or  held 
to  bail,  or  taken  in  execution  on  a  judgment,  or  by  any  caption,  contrary 
to  the  intent  of  that  act,  such  alien  should  be  discharged  therefrom,  by  order 
of  any  of  his  majesty's  courts  in  Westminster  Hall,  or  of  the  court  of  Ses- 
sion in  Scotland,  or  of  any  judge  of  such  courts  in  vacation  time."  This 
statute  seems  to  have  been  occasioned  by  the  case  of  3Ielan  v. 
[  *216  ]  DuJce  de  Fitz-James  :{d)  And  it  was  extended  by  *the  statute 
41  Geo.  III.  c.  106,  to  all  such  persons  as  were  born  in  any  of 
the  countries  subject  to  the  late  king  of  France,  or  who,  having  been  born 
within  this  kingdom,  passed  into  the  dominions  of  the  said  late  king,  under 
the  age  of  fifteen  years,  and  who  had  bond  fide  resided  in  such  countries 
as  subjects  of  the  said  late  king,  although  born  of  parents  subjects  of  his 
majesty,  or  his  predecessors.  Also,  by  the  statute  43  Geo.  III.  c.  §  28, 
this  provision  was  extended  to  his  majesty's  four  courts  in  Ireland.  But  its 
further  continuance  being  no  longer  necessary,  the  acts  by  which  it  was 
created  have  been  suffered  to  expire. 

In  some  of  the  preceding  cases,  the  process  is  declared  to  be  void ;  as 

{a)  6  Barn.  &  Cres.  106.     9  Dowl.  &  Rjl.  107,  S.  C,  but  see  3  Dowl.  &  Ryl.  600,  contra. 

{b)  Doug.  671,  and  see  4  Taunt.  631. 

(c)  This  statute  was  made  perpetual  by  42  Geo.  III.  c.  92,  |  23,  which,  however  was 
repealed  by  43  Geo.  III.  c.  155,  |  1  ;  and  this  latter  statute  was  also  repealed  by  54  Geo.  III. 
c.  155,  §  1,  which  was  repealed  by  55  Geo.  III.  c.  104,  g  1;  but  the  same  provisions  are  to 
be  found  in  each  of  these  statutes,  and  were  finally  re-enacted  by  56  Geo.  III.  c.  86,  |  19- 
which  statute  was  continued  by  58  Geo.  III.  c.  96.  1  Geo.  IV.  c.  105.  3  Geo.  IV,  c.  97,  and 
5  Geo.  IV.  c.  37,  but  is  now  expired. 

('/)  1  Bos.  &  Pul.  138.  In  that  case  it  was  decided,  by  two  judges  of  the  Common  Pleas 
that  a  defendant  could  not  be  held  to  bail  in  this  country,  on  an  instrument  entered  into 
in  France^  by  which  his  property  only,  and  not  his  person,  was,  according  to  the  law  of 
France,  made  liable  to  the  payment  of  the  debt  sued  for :  but  Heath,  Justice,  was  of  a  dif- 
ferent opinion  ;  and  it  is  observable,  that  in  Imley  v.  EUefaen,  2  East,  453.  Lord  Ellenborougk 
expressed  his  dissent  from  the  decision  of  the  court  of  Common  Pleas  in  the  above  case. 
See  also  Barnes,  73. 


BY  AVnOM  AN  ARREST  MAY  BE  MADE.  216 

against  Ambassadors,  &c.  In  others,  the  court  is  expressly  required  to 
discharge  the  defendant. (^)  And  it  may  be  remarked,  in  general,  that 
^vhere  the  defendant  is  clearly  entitled  to  privilege,  as  the  arrest  is  irreg- 
ular and  unlawful,  the  court  will  discharge  him  upon  motion  ;  and  not  put 
him  to  the  necessity  of  suing  out  a  writ  of  privilege, (^')  or  of  filing  common 
bail,(c)  but  "where  the  (jucstion  of  privilege  from  arrest  is  doubtful,  the 
court  will  not,  upon  motion,  discharge  the  party  out  of  custody,  but  leave 
him  to  his  writ  of  privilege.(t7)  And  they  will  not  discharge  a  defend- 
ant out  of  custody  on  common  bail,  on  the  ground  of  infancy  ;[e)  or  that 
he  was  insane  at  the  time  of  the  arrest,(/)  or  afterwards  became  so;(^) 
nor  will  they  discharge  his  bail,  on  the  ground  of  the  insanity  of  their 
principal,  although  a  commission  of  lunacy  may  have  issued  against  him, 
under  which  lie  has  been  found  a  lunatic. (/;)  The  bail,  however,  may 
have  a  habeas  corpus,  to  bring  up  their  principal,  notwithstanding  his 
lunacy,  in  order  to  surrender  him  in  their  discharge. (?)  And  where  the 
return  to  a  writ  of  latitat  stated  that  the  defendant  was  insane,  and  could 
not  be  removed  without  great  danger,  and  continued  so  till  the  return  of 
the  writ,  the  court  of  King's  Bench  refused  an  attachment  against  the 
sheriff.  (^) 


An  arrest,  when  allowed,  is  made  by  the  sheriff  or  his  officers ;  or  by 
the  bailiff  of  a  liberty  of  franchise. [a]  The  sheriff's  authority  is  derived 
immediately  from  the  court,  except  in  counties  palatine,  where  he  acts  by 
virtue  of  a  mandate  from  the  officer  to  whom  the  writ  is  directed:  And 
even  there,  if  the  writ  be  directed  immediately  to  the  sheriff,  he  is  bound 
to  execute  it ;  and  a  bail-bond  taken  on  the  arrest  is  legal. (?)  The  offi- 
cers of  the  sheriff  are  of  three  kinds,  first,  bailifi"s  in  fee,  or  perpetual 
bailiffs,  who  have,  by  charter  of  prescription,  the  execution  of 
writs  within  the  *yuildable  ;{aa)  secondly,  common  bailiffs,  (called  [  *217  ] 
in  the  old  books,  bailiffs  errant,{bb)  who  are  usually  bound  with 
sureties  in  an  obligation  for  the  due  execution  of  their  office,  and  thence 
are  called  bound  bailiffs  •,{co)  thirdly,  special  bailiffs,  nominated  by  the 
plaintiff  or  his  attorney,  and  appointed  by  the  sheriff  ^ro  hac  vice.{dd) 

The  sheriff 's  warrant[ee)  to  any  of  these  officers  ought  not  to  be  made  out, 

(a)  Ante,  199,201,212,214,15. 

{b)  2  Str.  989.  Fort.  159.  Com.  Rep.  444,  S.  C.  1  Ken.  125.  5  Durnf.  &  East,  G89,  but 
see  1  Wil3.  278.     2  Blac.  Rep.  788. 

(c)  Walpole  V.  Alexander,  H.  22.  Geo.  III.  K.  B. 

(d)  2  Barn.  &  Aid.  234.  (e)  1  Bo9.  &  Pul.  480. 
(/)  4  Durnf.  &  East,  121.                                                       (y)  2  Durnf.  &  East,  390. 
(h)  6  Durnf.  k  East,  133.     2  Bos.  &  Pul.  362.     13  East,  355.    2  Chit.  Rep.  104. 
(i)  3  Bos.  &  Pul.  550,  and  see  Highmorc  on  Lunacy,  123. 

(k)  4  Barn.  &  Aid.  279,  but  see  8  Dowl.  &  Ryl.  606. 
(/)  G  Durnf.  &  East,  71. 

(aa)  For  an  account  of  the^wi'Waft/e,  and  how  it  differs  from  &  franchise,  see  8  Co.  125,  a,  Dalt. 
Sher.  185,and  for  the  nature  of  the  office  of  a  bailiQ' !«/«,  see  Dalt.  Sher.  187.  Gilb.  C.  P.  30. 
{bb)  3  East,  130.  [cc)  1  Blac.  Com.  346. 

((f<f)  2  Blac.  Rep.  952.     4  Durnf.  &  East,  110.     1  Chit.  Rep.  613,  14,  (a). 
\ee)  Append.  Chap.  X.  §  104,  6,  6. 

[a]  Where  one  not  generally  known  as  an  officer  makes  an  arrest,  his  authority  if 
demanded  must  be  shown.  The  Stale  v.  Curtis,  1  Hayw.  471.  Arnold  v.  Stevens,  10  Wend. 
514.     Com.  V.  Field,  13  Mass.  321.     The  Slate  v.  Kirby,  2  Ired.  201, 


ojy  BY  WHAT  AUTHORITY  AN  ARREST  MAY  BE  MADE. 

until  the  sheriff  have  the  writ  in  bis  actual  custody ;(/)  And  therefore, 
where  the  defendant  was  arrested  before  the  officer  had  any  warrant,  and 
before  the  writ  was  delivered  to  the  sheriff,  the  bail-bond,  was  ordered  to 
be  delivered  up  to  be  cancelled. (^)  So,  where  an  attorney  fills  up  the 
sheriff's  warrant  on  a  capias  ad  resj^ondendum,  after  it  is  signed,  sealed, 
and  sent  to  him  with  a  blank,  this  is  bad. (7i)  And  where  the  sheriff  hav- 
ing directed  a  "Warrant  to  A.  and  all  his  other  officers,  to  arrest  B.,  and 
A.  afterwards  inserted  therein  the  name  of  C ;  it  was  holden  that  the  war- 
rant was  illegal,  and  the  arrest  by  C.  consequently  void.(zj[A]  But  where 
the  sheriff  made  a  warrant  to  four  jointly,  and  not  severally^  and  one  of 
them  arrested  the  defendant,  the  court  of  Common  Pleas,  though  they 
were  of  opinion  that  the  arrest  was  not  authorized  by  the  warrant,  would 
not  interfere  to  discharge  the  defendant  out  of  the  custody  of  the  sheriff, 
on  entering  a  common  appearance. (/c)  And  a  defendant  is  not  entitled  to 
be  discharged  oiit  of  custody,  on  the  ground  of  his  having  been  arrested 
upon  a  warrant,  in  which  the  names  of  the  plaintiffs  are  not  inserted  con- 
formable to  the  writ,  if  the  defendant  be  not  misled  by  the  mistake  ;  there- 
fore, where  the  arrest  took  place  on  a  warrant  at  the  suit  of  three  plaintiffs, 
which  required  the  defendant  to  answer  A.  B.  and  two  others,  without 
naming  them,  the  court  of  King's  Bench  held,  that  he  was  not  entitled  to 
be  discharged. (/^) 

If  the  defendant  reside  within  a  liberty,  the  bailiff  of  which  has  the  exe- 
cution and  return  of  writs,  there  should  regularly  be  a  non  omittas  ;  or  if 
there  be  not,  the  sheriff  for  having  execution  of  the  writ,  should  make  out 
his  mandate,  directed  to  the  bailiff  of  the  liberty.(m)  And  if  there  be  two 
liberties  in  a  county,  and  the  sheriff  make  his  mandate  to  the  bailiff  of  one 
of  them,  who  gives  him  no  answer,  he  may,  upon  a  non  omittas,  arrest  the 
defendant  in  either  liberty  ;(w)  and  even  if  the  sheriff  enter,  and  arrest  the 
defendant  in  a  liberty,  without  a  non  omittas,  the  arrest  is  good,  though 

the  sheriff  may  be  liable  to  an  action. (o) 
[  *218  ]        *The  arrest  may  be  made  at  anytime  (except  on  Siinday,)he- 
fore,  or  on  the  day  of  the  return  of  the  writ ;  and  at  any  2^lace 

if)  R.  M.  1654,  ^  2.  R.  E.  15  Car.  II.  reg.  4,  K.  B.  R.  M.  1654,  I  2.  R.  H.  14  &  15  Car.  II. 
reg.  1,  C.  P.  Stat.  6  Geo.  I.  c.  21,  ^  53. 

(g)  8  Duraf.  &  East,  187. 

[h)  2  Wils.  47.  (f)  6  Durnf.  &  East,  122. 

(k)  2  Taunt.  161.  {II)  1  Chit.  Rep.  611. 

{m)  Gilb.  C.  P.  25,  &c. 

(«)  5  Co.  92,  a,  Gilb.  C.  P.  29.    9  East,  335,  340. 

(o)  Gilb.  C.  P.  27.  Fitzpatrick  v.  Kelly,  M.  22  Geo.  III.K.B.  cited  in  3  Durnf.  &  East,  740, 
and  see  5  Durnf.  &  East,  687.  9  East,  341,  2.  7  Taunt.  311.  1  Chit.  Rep.  375,  in  notis.  3 
Barn.  &  Aid.  502.     1  Moore  k  P.  309.     4  Bing.  523,  S.  C. 

[a]  If  the  process  is  void  the  arrest  is  illegal.  Tracy  v.  Williams,  4  Conn.  107.  State  v. 
Leach,  7  Id.  456.  State  v.  Curtis,  1  Hayw.  471.  And  when  the  illegality  is  apparent  on  the 
face  of  the  process  the  officer  who  executes  it  is  a  trespasser.  Lampson  v.  Laudon,  5  Day, 
508.  Grumon  v.  Raymond,  1  Conn.  40.  Reynolds  v.  Corp,  3  Caines,  269.  Griswold  v.  Sedg- 
wick, 6  Cow.  456.  Sanford  v.  Nichols,  13  Mass.  280.  Pearce  v.  Aticood,  13  Id.  324.  WoodY. 
Ross,  11  Id.  277.     Com.  v.  Foster,  1  Id.  488.      Wells  t.  Jackson,  3  Munf.  458. 

So  an  arrest  of  one  named  by  a  wrong  name  in  the  process,  though  he  be  the  person 
intended,  subjects  the  officer  making  it  to  an  action  for  false  imprisonment,  unless  the  party 
arrested  was  known  by  both  names.  Griswold  v.  Sedgivick,  supra.  Mead  v.  Ilatts,  7  Cow. 
332.  Gurnsey  v.  Lovell,  9  Wend.  319;  or  of  the  wrong  person;  The  Bank  v.  Howard,  14 
Mass.  184.  Smith  v.  Boucher,  1  Id.  76  ;  or  when  made  after  the  return  day  of  the  writ ; 
Stoyel  V.  Lawrence,  3  Day,  1.  Prescott  v.  Wright,  6  Mass.  22  ;  but  it  seems  the  arrest  may  be 
made  on  the  return  day.     Adams  v.  Freeman,  9  Johns.  117. 


OF  THE  TIME,  PLACE,  ETC.,  OF  ARREST.  218 

■within  the  county,  except  where  the  defendant  is  privileged.  But  it  cannot 
be  made,  between  the  day  of  the  return  and  quarto  die  post,  by  original. (a) 
And,  by  the  statute  20  Car.  II.  c.  7,  §  0,  "no  person  or  persons,  upon  the 
Lord's  day,  shall  serve  or  execute,  or  cause  to  be  served  or  executed,  any 
writ,  process,  warrant,  order,  judgment,  or  decree,  except  in  cases  of  trea- 
son, felony,  or  breach  of  the  peace  :  but  the  service  of  every  such  writ,  kc. 
shall  be  void  to  ail  intents  and  purposes  ;{b)  and  the  person  or  persons  bo 
serving  or  executing  the  same,  shall  be  as  liable  to  the  suit  of  the  party 
gi'ieved,  and  to  answer  damages  to  him  for  doing  thereof,  as  if  he  or  they 
had  done  the  same  without  any  writ,  kc." 

In  construing  this  statute,  it  has  been  holden,  that  an  arrest  cannot  be 
made  on  a  Sunday,  upon  a  capias  iitla(jatum;{c)  or  for  non-payment  of  a 
penalty  upon  conviction. (t?)  And  the  statute  extends  not  only  to  process 
properly  so  called,  but  also  to  all  notices  on  which  rules  are  made :  and 
hence  it  has  been  holden,  that  service  of  notice  of  plea  filed  on  a  Sunday 
is  void,  by  construction  of  the  statute.(t')  "Where  A.  was  arrested  at  the  suit 
of  B.  and  discharged,  the  sherifl'  not  knowing  that  there  was  also  a  detainer 
in  his  office  at  the  suit  of  C.  and  on  the  Sunday  following  he  was  arrested 
at  C.'s  suit,  the  court  discharged  him  out  of  custody ;(/)  considering  the 
arrest  on  the  Sunday,  as  an  original  taking,  or  a  retaking  after  a  volun- 
tary escape  ',{g)  and  in  either  case  it  was  prohibited  by  the  statute.  But 
after  a  negligent  escape,  the  defendant  maybe  retaken  on  a  Sunday;  and 
that  either  by  the  officer  upon  fresh  pursuit,  or  by  virtue  of  an  escape 
warrant  ;(/i)  for  this  is  not  an  original  undertaking,  but  the  party  is  siill  in 
custody  upon  the  old  commitment.  Also  it  is  holden,  that  bail  may  take 
their  principal  on  a  Sunday,  in  order  to  surrender  him ;(/)  for  this  is  not  by 
virtue  of  any  process  at  all.  And  it  should  seem  that  process  of  contempt 
being  of  a  criminal  nature,  may  be  served  upon  that  day. (A')  But  a  rule 
nisi  for  an  attachment  for  non-payment  of  money  pursuant  to  the  master's 
allocatur,  cannot  be  so  served. (Z) 

The  arrest  must  be  made  in  the  county  into  which  the  process  issues ; 
Therefore,  an  arrest  in  the  city  of  London  on  a  bill  of  Middlesex,  is  irre- 
gular, even  though  it  took  place  on  the  verge  of  the  county  of 
Middlesex,  *if  there  be   no    dispute  as  to  the  boundaries. (aa)    [  *219  ] 
And  it  is  a  rule,  that  no  man  can  be  arrested  in  his  own  house, 
provided  the  outer  door  be  shut;(W))[A]  or  in  the  king's  presence  ;(ee)  or 

(a)  1  Sid.  229.     2  Esp.  Rep.  585. 

(6)  1  Salk.  78.  The  service  of  process  on  a  Sundar/,  being  absolutely  void  by  the  statute, 
cannot  be  made  good  by  any  subsequent  waiver  of  tlie  defendant,  as  by  bis  not  objecting 
until  after  a  rule  to  plead  given.     3  East,  155.     8  East,  547,  (i). 

(c)  Barnes,  319.  (rf)  1  Durnf.  &  East,  2C5. 

{e)  8  East,  547.  And  see  5  Barn.  &  Cres.  40G.  8  Dowl.  &  Ryl.  204,  S.  C.  4  Bing.  84,  as 
to  the  validity  of  contracts  entered  into  on  Sundat/. 

(/)  5  Durnf.  &  East,  25.  (ff)  Barnes,  373. 

(A)  2  Ld.  Raym.  1028.     2  Salk.  G26.     6  l^Iod.  95,  S.  C. 

(t)  6  Mod.  23'l.     1  Atk.  239,  but  see  2  Blac.  Rep.  1273. 

(A-)  12  Mod.  348.     1  Atk.  55.     Willes,  459.  [l)  8  Durnf.  &  East,  86. 

(aa)  3  Barn.  &  Aid.  408. 

(W)  5  Co.  91,  but  see  Uowp.  1.     2  Moore,  207.     8  Taunt,  250,  S.  C. 

(cc)  3  Blac.  Com.  289. 

[a]  In  order  to  make  an  arrest  in  a  civil  case,  an  outer  cannot  be  broken  open,  but  an 
inner  may.  Oi/xted  v.  Shed,  13  Mass.  520.  Allen  v.  Martin,  10  Wend.  300.  Williams  v. 
Spencer,  5  Jobns.  352.  Fitch  v.  Lovland,  Kirby,  38G.  Hibbard  v.  Mack,  17  Johns.  127.  And 
if  the  debtor  resist  and  commit  an  assault  where  the  sheriOf  has  broken  open  the  outer  door 


^.(.  OF  THE  MANNER  OF  ARREST. 

witliln  tlic  vev'^e  of  his  royal  palace,((^cZ)  (except  by  an  order  of  the  board 
of  creen  cloth,  or  unless  the  process  issue  out  of  the  palace  court  ;)(e)  or 
in  any  place  where  the  king's  justices  are  actually  sitting.(/)  So  it  has 
been  decided,  that  process  cannot  be  lawfully  executed  in  Kensington 
palace,  which  is  privileged  for  this  purpose  as  a  royal  residence. (^)  And 
an  arrest  within  the  tower  of  London,  would  it  seems  be  bad,  without 
leave  obtained  from  the  governor. (A)  But  an  arrest,  within  the  verge  of 
the  kinf^'s  palace,  has  been  holden,  in  the  Common  Pleas,  to  be  no  ground 
for  discharging  the  defendant  out  of  custody.(e)  The  privilege  of  the 
parties  to  a  suit,  and  their  ivitnesses,  of  which  we  have  before  spoken, (^) 
may  also  in  some  measure  be  considered  as  of  a  local  nature :  And  of  the 
same  kind  as  that  of  clergymen,  who,  by  several  ancient  statutes,(0  are 
privileged  from  arrest,  in  going  to  and  returning  from  church,  or  perform- 
infT  divine  service;  but  not  if  they  stay  in  church,  with  a  fraudulent  design 
of  eluding  the  process  of  the  law.  And  it  is  said,  that  the  party  grieved 
may  have  an  action  upon  these  statutes. (m) 

In  making  the  arrest,  the  sheriff  or  his  officer,  it  has  been  said,  must 
actually  seize  or  touch  the  defendant's  body:(7?)  but  this  does  not  seem  to 
be  absolutely  necessary ;  for  if  a  bailiff  come  into  a  room,  and  tell  the 
defendant  he  arrests  him,  and  lock  the  door,  that  is  held  to  be  an  arrest ; 
for  he  is  in  custody  of  the  officer.(o)[A]  And  it  is  not  necessary  that  the 
officer  who  has  the  authority,  should  be  the  hand  that  arrests,  nor  in  the 
presence  of  the  person  arrested,  nor  actually  in  sight,  nor  is  any  exact 
distance  prescribed  :  it  is  sufficient  if  he  be  near,  and  acting  in  the 
arrest.(p)     If  the  defendant  be  wrongfully  taken,  without  process,(2}  or 

(rfc/)  Stat.  28  Hen.  VIII.  c.  12.  3  Inst.  141.  2  Ld.  Raym.  978.  3  Salk.  91,  284.  6  Mod. 
73.     Holt,  590,  S.  C.     1  Man.  &  Rjl.  452.     Id.  457,  (a). 

(e)  3  Durnf.  &  East,  735. 

(/)  3  Inst.  140,  41.     2  Mod.  181,  but  see  1  Lev.  106. 

{g)  10  East,  578.     1  Campb.  475. 

{h)  2  Chit.  Rep.  48,  51.     But  see  1  Moore  &  P.  309.     4  Ring.  523,  S.  C. 

(?■)  7  Taunt.  311,  and  see  1  Chit.  Rep.  375,  in  notis.     3  Barn.  &  Aid.  502. 

{k)  Ante,  195,  &c. 

(;)  50  Edw.  III.  c.  5.     1  R.  II.  c.  15,  and  see  1  Mar.  sess.  2,  c.  3. 

[m)  12  Co.  100.  In  5  Bac.  Abr.  565,  it  is  said,  that  the  arrest  of  a  clergyman  under  civil 
process,  either  in  going  to  church,  to  perform  divine  service,  or  in  returning  from  thence,  on 
any  day,  is  a  false  imprisonment.  But  from  several  later  decisions  it  may  be  collected,  that 
if  any  action  would  lie,  which  is  doubtful,  it  should  be  an  action  on  the  case,  and  not  an 
action  of  trespass,  against  the  sheriff  or  his  officers.  3  Wils.  341.  2  Blac.  Rep.  1087,  1190. 
Doug.  671. 

(?i)  1  Salk.  79,  and  see  1  Ry.  &  Mo.  2G.     1  Car.  &  P.  153,  S.  C.     6  Barn.  &  Cres.  528. 

(o)  Cas.  temp.  Hardw.  301,  and  see  2  New  Rep.  C.  P.  211,  12.  1  Man.  &  Ryl.  211.  Id. 
215,  (a). 

ip)  Cowp.  65. 

{q}  2  Anstr.  461,  and  see  1  New  Rep.  C.  P.  135.     11  Price,  156,  345. 

of  the  dwelling  house,  an  indictment  will  not  lie  against  him  for  so  doing.  The  State  v. 
Rooker,  17  Verm.  658. 

But  the  law  will  not  permit  a  dwelling-house  to  be  used  fraudulently  to  cover  a  man's 
goods.  Stitt  V.  Wilson,  Wright,  505.  But  if  an  arrest  has  been  made  and  the  prisoner 
escapes  and  takes  refuge  in  a  dwelling,  the  officer  while  in  fresh  pursuit  of  him  may  break 
the  outer  door.     Oysted  v.  Shed,  supra.     Allen  v.  Martin,  supra. 

[a]  It  is  an  arrest  if  the  party  is  within  the  power  of  the  officer.  Gold  r.  Bissell,  1  Wend. 
215.  Strout  V.  Gooch,  8  Greenl.  127.  Cooper  y.  Adams,  2  Blackf.  294.  Field  v.  Ireland,  21 
Ala.  240.  Jones  v.  Jones,  13  Ired.  448.  But  if  the  defendant  resists,  some  touching  of  the 
body  is  necessary,  but  if  he  submits,  it  can  be  dispensed  with.  M'Cracken  v.  Anslcy,  i 
Srobh.  1. 


OF  THE  BAIL  BOND.  219 

after  it  is  returnable,(r)  &c.  he  cannot  be  lawfully  detained  in 
custody  under  subsequent  process  at  the  suit  of  the  same  plain-  [  *220  ] 
tiff,  though  regularly  issued :  But  *third  persons,  who  find  a 
defendant  in  custody,  have  a  right  to  consider  him  as  being  lawfully  in 
the  custody  in  which  he  is  found,  and  to  proceed  against  him  accordingly ; 
for  otherwise  a  person  under  an  illegal  arrest,  at  the  suit  of  one  party, 
would  be  completely  protected,  during  his  imprisonment,  from  all  other 
process,  which  would  be  productive  of  great  inconvenience  and  suspension 
of  justice. (a) 


*CHAPTER  XL  [*221] 

Of  the  Bail  Bond;  and  Duty  of  Sheriffs,  Jr.,  on  the  Aiirest.[a] 

When  the  defendant  is  arrested,  he  is  either  let  out  of  custody,  upon 
giving  bail  to  the  sheriff,  or  an  attorney's  undertaking  for  his  appearance  ; 
or  depositing  in  the  sheriff's  hands,  the  sum  indorsed  on  the  writ,  with  ten 
pounds  in  addition  to  answer  costs,  &c. ;  or  he  remains  in  custody,  or 
escapes  or  is  rescued,  &;c. 

Bail  in  personal  actions  came  in  with  the  capias  :{a)  and  it  is  eitiicr  to 
the  sheriff,  for  the  appearance  of  the  defendant  at  the  return  of  the  writ, 
or  to  abide  the  event  of  the  suit :  The  former  is  called  bail  to  the  sheriff) 
or  bail  beloiv ;  the  latter  bail  to  the  action^  or,  when  special,  bail  above. 
Before  the  statute  23  Hen.  VI.  c.  9,  the  sheriff  was  not  obliged  to  bail  a 
defendant,  arrested  upon  mesne  process,  unless  he  sued  out  a  writ  of 
mainprize  ;  though  he  might  have  taken  bail  of  his  own  accord. (7>)  This 
arbitrary  power  produced  great  extortion  and  oppression  of  the  subject : 
to  remedy  which,  it  was  enacted  by  the  above  statute,  that  "  sheriffs,  &c., 
shall  let  out  of  prison  all  manner  of  persons  arrested,  or  being  in  their 
custody,  by  force  of  any  writ,  bill  or  warrant,  in  any  action  personal,  or 
by  cause  of  indictment  of  trespass,  upon  reasonable  sureties  of  sufficient 
persons,  having  sufficient  wuthin  the  counties  where  such  persons  be  so  let 
to  bail  or  mainprize,  to  keep  their  days  in  such  place  as  the  said  writs, 
bills  or  warrants  shall  require ;  persons  being  in  their  ward  by  condemna- 
tion, execution,  capias  utlagatum  or  excommunicatiim,  surety  of  the  peace, 
or  by  special  commandment  of  any  justice,  and  vagabonds  refusing  to 
serve  according  to  the  statute  of  labourers,  only  excepted. 

And  that  "  no  sheriffs,  &c.,  shall  take,  or  cause  to  be  taken,  any  obli- 
gation, for  any  cause  aforesaid,  or  by  colour  of  their  office,  but  only  to 
themselves,  of  any  person,  nor  by  any  person,  which  shall  be  in  their  ward 
by  cause  of  law,  but  by  the  name  of  their  office ;    and  upon  condition 

(r)  2  H.  Blac.  29,  and  see  3  East,  89.     1  Rose,  261,  2. 

(a)  2  Barn.  &  Aid.  743.     1  Cbit.  Rep.  579,  S.  C,  and  see  id.  579,  80,  81,  in  notis. 

{a)  Gilb.  C.  P.  33.  And  for  the  origin,  progress,  and  general  nature  of  the  law  of  bail, 
see  Pctcrsd.  Part  I.  Chap.  I. 

(6)  Gilb.  C.  P.  20,  21.  4  Bac.  Abr.  4G1.  F.  N.  B.  251.  Plowd.  67.  Dalt.  Shcr.  56,  and 
see  1  Vent.  55,  85.     2  Wms.  yaund.  5  Ed.  60,  61,  g.     1  H.  Blac.  233.     15  East,  321. 

[a]  See  1  Archb.  Pract.  Ft.  II.,  p.  632,  8  Ed. 


221  OF  THE  BAIL  BOND. 

written,  that  the  prisoners  shall  appear  at  the  day  and  place  contained  in 
the  writ,  bill  or  warrant.  And  if  any  sheriffs,  &c.,  take  any  obligation  in 
other  form,  by  colour  of  their  office,  it  shall  be  void." 

*This  is  a  public  act,  of  which  the  courts  will  judicially  take 
[  *222  ]  notice,  without  its  being  specially  pleaded. (a«)    And  it  hath  two 

branches:  first,  as  to  the  personslo  be  let  to  bail;  and,  secondly, 
as  to  the  form  of  the  security.(55)  Upon  the  first  branch  of  the  statute, 
it  has  been  determined,  that  the  sheriff  has  no  authority  to  take  a  bond 
for  the  appearance  of  persons  arrested  by  him,  under  process  issuing  upon 
an  indictment  at  the  quarter  sessions,  for  a  misdemeanour  ;  but  can  only 
take  a  recognizance  for  their  appearance  :(c)  And  it  has  been  doubted, 
whether  the  sheriff  can  take  bail  on  an  attachment  for  a  contempt,  issuing 
out  of  a  court  of  law.(c/)  But  it  is  holden,  that  bail  may  be  taken  on 
attachment  out  of  Chancery,  on  mesne  process  :{e)  though  not  after  a 
decree. (/)  The  practice  upon  mesne  process  is,  for  the  sheriff  to  take 
a  bond  in  the  penalty  of  401.  for  the  defendant  to  appear  and  answer  •,{g) 
and  an  action  may  be  brought  on  the  bond,  in  the  name  of  the  sheriff.(/<') 
But  though  the  sheriff  may,  yet  he  is  not  compellable  to  take  bail,  on  an 
attachment  out  of  Chancery ;  it  having  been  determined,  that  an  action 
will  not  lie  against  him  for  refusing  to  take  it  :(i)  and  therefore,  if  he  will 

not  take  bail,  the  defendant  must  remain  in  *custody,  and  can 
[  *223  ]  only  be  relieved  by  applying  to  the  chancellor,  or  a  judge  of  the 

court  out  of  which  the  process  issued.(a)  If  the  sheriff  take  bail, 
it  seems  from  the  case  of  the  King  v.  Dawes,{h)  that  he  may  be  amerced, 

(a«)  2  Durnf.  &  East,  569.     15  East,  323. 

\bb)  For  the  determinations  on  both  these  branches  of  the  statute,  see  2  Wms.  Saund.  5 
Ed.  59,  (3),  &c. 

(c)  4  Durnf.  &  East,  505.     2  H.  Blac.  418. 

((7)  la  an  anonymous  case,  reported  in  1  Str.  479,  the  Chief  Justice,  on  a  motion  for  an 
attachment,  declared,  that  all  the  judges  on  consideration  had  resolved,  that  the  sheriff  could 
not  take  bail  on  an  attachment,  but  a  judge  at  his  chamber  might.  And  accordingly,  in  a 
late  case  oi  Phelps  v.  Barrett,  4  Price,  23,  it  was  determined  by  the  court  of  Exchequer,  that 
the  sheriff  cannot  let  out  of  custody  on  bail,  a  defendant  taken  under  an  attachment,  issuing 
out  of  courts  of  law,  for  non-payment  of  costs  ;  such  process  being  in  nature  of,  and  in  effect 
an  execution  :  and  see  Com.  Rep.  264.  Barnes,  64.  Per  Ld.  Mansfield,  M.  23  Geo.  III.  K. 
B.  accord.:  but  see  1  Ld.  Raym.  722.  2  Salk.  608,  S.  C.  contra.  The  case  of  Morris  v. 
Hayward,  however,  6  Taunt.  569.  2  Marsh.  280,  S.  C,  is  an  authority  to  show,  that  although 
the  sheriff  is  not  bound  to  take  bail  upon  an  attachment,  yet  if  he  do,  he  may  recover  upon 
the  bail  bond  :  and  see  the  case  of  Rex  v.  Bowes,  1  Ld.  Raym.  722.  2  Salk.  608,  S.  C, 
accord.  That  indeed  was  the  case  of  an  attachment  out  of  Chancery,  to  enforce  an  appear- 
ance; but  process  issuing  out  of  courts  of  law  and  equity  is  said  to  stand  on  the  same 
foundation  :  though  it  is  observable,  that  process  out  of  Chancery  is  not  within  the  statute 
23  Hen.  VL  c.  9,  as  appears  by  that  case,  and  Studd  v.  Acton,  1  H.  Blac.  474.  The  case  of 
Morris  v.  Hayward  was  decided  upon  great  consideration,  and  is  at  variance  with  the  sub- 
sequent case  of  Phelps  v.  Barrett;  the  foundation  of  which  was,  that  an  attachment  is  a 
process  in  nature  of  an  execution.  Per  Baijlcy,  J.  in  the  case  of  Lewis  v.  Morland,  2  Barn. 
<Sc  Aid.  63.  And  as  it  was  determined,  in  the  latter  case,  that  an  attachment  issuing  out 
of  the  court  of  King's  Bench,  for  non-payment  of  money,  is  in  nature  of  mesne  process,  the 
principle  on  which  tlie  case  of  Phelps  v.  Barrett  was  decided,  cannot  it  seems  be  supported. 
In  the  case  of  Kex  v.  Aylett,  T.  23  Geo.  IIL  K.  B.  a  distinction  was  taken  by  the  counsel  in 
argument,  which  seems  to  be  reasonable,  between  an  attachment  for  non-payment  of  money, 
and  for  not  delivering  papers,  or  other  cause  ;  and  it  was  said,  that  on  the  former,  the  sheriS" 
might  take  bail,  but  the  latter  was  bailable  only  before  a  judge. 

(e)  Sty.  Rep.  212,  234.     2  Vent.  237.     Com. 'Rep.  264.     Barnes,  64.     2  Blac.  Rep.  955. 
6  Taunt.  569.     2  Marsh.  280,  S.  C,  but  see  3  Leon.  208,  contra. 

if)  Gilb.  Rep.  84.     Free.  Chan.  331,  S.  C. 

{g)  1  Eq.  Cas.  Abr.  351.     4  Bac.  Abr.  tit.  Sherif,  0.  4  V.  463. 

[h)  Taunt.  569.     2  Marsh.  280,  S.  C.  ;  and  see  Price,  224. 

(t)  1  H.  Blac.  468.     6  Taunt.  571,  &c.     2  Marsh.  2S3,  286,  S.  C. 

(a)  1  Str.  479.  (6)  2  Salk.  608.     1  Ld.  Raym.  722,  S.  C. 


OF  THE  BAIL  BOND.  22S 

if  the  party  do  not  appear  and  answer ;  but  in  a  subsequent  case,((')  a 
messenger  was  sent,  upon  the  sheriff's  return  of  ccpi  corpus^  to  bring  him 
in  ;  which  seems  to  be  now  the  practice  in  Chancery,  instead  of  making 
an  order  on  the  sheriff  to  bring  in  the  body.  So,  in  the  Exchequer,  if  the 
condition  of  the  bond  be  broken,  the  course  is  said  to  be,  to  get  an  order, 
on  the  return  by  the  sheriff  of  ccpi  corpus,  for  a  messenger  to  bring  in  the 
defen(hint.((ZtZ)  But  where  a  defendant  had  been  arrested  on  an  attach- 
ment for  contempt,  in  not  appearing  to  a  suhpcena  ad  respondenduniy  the 
court  would  not  grant  a  motion  for  the  messenger  to  bring  up  the  body, 
after  the  defendant  had  given  a  bail  bond  to  the  sheriff,  although  the 
penalty  was  inadequate. (ee) 

When  the  defendant  is  arrested,  and  in  actual  custody,  it  is  the  duty  of  the 
sheriff'  to  take  bail,  if  required  ;[a]  and  therefore  if  a  bail  bond  be  tendered, 
with  sufficient  sureties,  and  the  sheriff  refuse  to  accept  it,  and  liberate  the 
defendant,  ho  is  liable  to  a  special  action  on  the  case.(/)  But  in  order  to 
maintain  such  an  action,  it  must  appear  that  the  parties  who  were  offered 
as  bail,  had  sufficient  within  the  county  where  the  arrest  was  made.(^)  A 
bond,  however,  with  five  sureties,  three  of  whom  are  respectively  worth 
more  than  the  penalty  of  the  bond,  is  sufficient,  though  the  other  two  are 
"worth  less  than  the  penalty.(/t)  The  clause  which  requires  reasonable 
sureties  was  introduced  for  the  benefit  of  the  sheriff;  and  therefore,  though 
he  may  insist  upon  tivo  sureties,  yet  he  may  take  a  bond  with  07ie  only.(/)[B] 
And  for  the  same  reason,  the  plaintiff  cannot  maintain  an  action  against 
him,  for  taking  sureties  that  are  insufficient,  or  do  not  inhabit  within  his 
county,  (/c)  And  though  the  words  of  the  statute  seem  to  be  confined  to 
persons  arrested  and  in  actual  custody,  yet  it  has  been  holden,  that  the 
arrest  need  not  be  stated  in  an  action  upon  the  bail  bond  ;{l)  and  if  stated, 
it  is  not  traversable  :(w)  for  it  would  be  of  mischievous  consequence,  if  a 
bail  bond,  taken  civilly,  without  exposing  the  party  by  an  arrest,  were  not 
as  effectual  as  if  he  had  been  actually  arrested. 

(c)  Prec.  Chan.  331.  ((/c?)  3  Price,  223.  (ee)  6  Price,  32. 

(/)  Gilb.  C.  P.  20.  Cro.  Car.  196.  W.  Jon.  22G,  S.  C.  1  Sid.  22.  2  Mod.  31,  84,  180.  2 
Vent.  9G.    6  Durnf.  &  East,  35.5,  and  see  2  Wms.  Kauud.  5  Ed.  61,  b.  e.  (5.) 

(if)  15  East,  320.  (h)  5  Maule  &  Sel.  223. 

(t)  10  Co.  100,  b.  Cro.  Eliz.  624,  808,  852,  862.  9  Moore,  422.  2  Bing.  227,  S.  C.  So, 
though  a  replevin  bond  be  executed  by  one  of  the  sureties  onlj',  it  is  nevertheless  available 
by  the  sheriff,  against  such  surety.     7  Taunt.  28.    2  Marsh.  352,  S.  C. ;  and  see  7  Taunt.  327. 

1  Moore,  68,  S.  C. 

(k)  Cro.  Eliz.  808,  852,  862.  Noy.  30.  1  Sid.  96.  2  Wms.  Saund.  5  Ed.  59.  1  Mod.  227, 
239.    2  Mod.  83,  177  ;  but  see  1  Ld.  Raym.  425.    1  Salk.  99,  S.  C.    6  Mod.  122,  semb.  contra. 

(l)  1  t<tr.  643. 

(th)  Id.  444  ;  but  see  Noy.  43,  semb.  contra.  See  also  Say.  Rep.  116,  by  which  it  appears, 
that  the  issuing  of  the  process  may  be  traversed. 

[a]  The  bond  should  be  given  to  the  sheriff  and  his  successor.  Loker  v.  Antonio,  M'Cord, 
175.  Jfunter  v.  Gilham,  1  Brcese,  51.  Rahton  v.  Love,  Hardin,  501.  Glczcn  v.  llood,  2 
Metcf.  490.  And  bond  taken  to  the  plaintiff  instead  of  the  sheriff  is  void.  Ilanile;/  v. 
Ewingn,  4  Bibb,  505 ;  or  with  a  blank  condition  ;  I'erry  v.  JJobbins,  2  Bailey,  343  ;  or  with- 
out a  seal ;    Walker  v.  Lewis,  2  Hayw.  16.  I'eijton  v.  Mo.scUj,  3  .Monr.  80.  Smallcyv.  Vanorden, 

2  South.  811  ;  or  if  it  be  not  executed  by  the  principal  as  well  as  the  sureties  ;  Bco'i  v. 
Parker,  17  Mass.  591  ;  or  if  it  specify  no  sum  to  be  paid  by  the  obligors  ;  Ilarri^on  v.  Tier- 
nan.i,  4  Rand.  177;  or  if  it  be  not  delivered.     Harrison  v.  Tiernans,  4  liand.  177. 

[b]  Statutory  directions  as  to  the  number  of  sureties  on  the  bond  are  merely  directory 
and  the  slieritf  may  take  a  smaller  number  without  ntiocting  the  validity  of  the  bond. 
Johnson  v.  Williams,  2  Overt.  178.  liice  v.  Hosmer,  12  Jlass.  129.  Lonj  v.  Hillings,  9  Ih. 
482.  Lane  v.  Smith,  2  Pick.  284.  Arrenton  v.  Jordan,  4t  Hawks,  98.  Glezen  y.  Rood,  2 
Metcf.  490.     Bennett  v.  Brown,  5  Rich.  347. 

Vol.  I.— 15 


2-23 


OF  THE  EAIL  EOND. 


r  *22i  ]  *ThG  second  branch  of  tlie  statute  requires  a  security  by  hond 
or  obligation  :  (a)  and  therefore  an  agreement  in  writing,  made 
by  a  third  person  with  a  sheriff's  oflBcer,  to  put  in  good  bail  for  the  defen- 
dant at  the  return  of  the  writ,  or  surrender  his  body  to  the  officer,  or  pay 
the  debt  and  costs  ]{h)  or  an  attorney's  undertaking  to  the  officer,  for  the 
appearance  of  the  defendant,(c)  or  to  give  a  bail  bond  to  the  sheriff  in  due 
time,(t^)  has  been  holden  to  be  void,  by  the  statute  23  Hen.  VI.  c.  9  ;  and 
an  action  will  not  lie  upon  such  an  agreement  or  undertaking,((?)  In  these 
cases,  if  bail  above  be  not  duly  put  in,  the  sheriff  is  liable  to  an  action  for 
an  escape ;  and  the  court  will  not  relieve  him,  by  permitting  him  after- 
wards to  put  in  and  justify  bail :( /f )  nor,  after  the  plaintiff  has  recovered 
against  the  sheriff  for  the  escape,  will  the  court  proceed  summarily  against 
the  attorney,  to  make  him  pay  the  debt  and  costs,  for  his  breach  of 
faith. ((/</)  It  is  also  settled,  that  the  sheriff  or  his  officer  cannot  maintain 
an  action  against  the  defendant  for  money  paid,  when  he  has  discharged 
him  out  of  custody  on  mesne  process,  without  taking  a  bail  bond,  and  has 
in  consequence  of  his  non-appearance,  been  obliged  to  pay  the  debts  and 
costs.  (7i7i) 

The  bail  bond  is  usually  taken  in  a  penalty,  being  double  the  amount  of 
the  sum  sworn  to  and  indorsed  on  the  writ,  notwithstanding  the  statute  12 
Geo.  I.  c.  29,  which  directs  the  sheriff  to  take  bail  for  that  sum,  and  no 
more  ;(/*')  and  the  sheriff's  bail  are  liable  thereon  to  the  full  extent  of  the 
debt  and  costs,  and  not  exceeding  the  penalty  of  the  bond.(/c)  Respect- 
ing \\\Q  form  of  the  bond,  there  are  three  things  to  be  observed;  first,  that 
it  may  be  made  to  the  sheriff  himself;  secondly,  that  it  be  made  to  him, 
by  his  name  of  office ;  and  thirdly,  that  it  be  conditioned  for  the  defen- 
dant's appearance  at  the  return  of  the  writ,  and  for  that  only.(/)  There- 
fore, if  the  bond  be  not  made  to  the  sheriff,(m)  or  be  not  made  to  him  by 
his  name  of  office,(7M)  or  if  it  be  single,  without  any  condition  at  all,(;?i)  or 
with  an  impossible  condition, (w)  or  the  condition  be  not  for  the  defendant's 
appearance,(m)  or  be  for  that  and  something  else,(m)  it  is  void  by  the 
statute.     So  it  is  void,  if  executed  before  the  condition  is  filled  up.(c')M 

(«)  2  Wms.  Saund.  5  Ed.  59,  a.  b.    Append.  Chap.  XI.  §  1,  2,  3. 

ib)  1  Durnf.  &  East,  418. 

(c)  7  Durnf.  &  East,  109.    Parker  v.  England,  M.  45  Geo.  III.  K.  B.    2  Smith,  R.  52,  S.  0. 

\d)  4  East,  568.  (e)  1  Durnf.  &  East,  418.  (/)  7  Durnf.  &  East,  109. 

{gij)  4  East,  568.   Parker  v.  Enc/land,  M.  45  Geo.  III.  K.  B.    2  Smith  R.  52,  S.  C. 

[hh)  8  East,  171 ;  and  see  Eyles  y.  Faihicy,  E.  32  Geo.  III.  K.  B.  Peake's  Gas.  Ni.  Pri.  3 
Ed.  195,  (a).    1  Esp.  Rep.  383. 

(u)  Gas.  Pr.  C.  P.  43.  Fort,  363.  Prac.  Reg.  G.  P.  67;  but  see  3  Blac.  Gom.  290,  semb. 
contra. 

{k)  2  Blac.  Rep.  816.    1  H.  Blac.  76.  (/)  Cro.  Eliz.  862.    4  Bac.  Abr.  462. 

[m)  Dyer,  119,  20.  10  Go.  100,  a.  b.  Gro.  Eliz.  800.  W.  Jon.  138.  Palm.  378.  2  Lev.  123. 
Fort.  371. 

{n)  3  Lev.  74.  1  Str.  399.  Fort,  363,  S.  C.  2  Durnf.  &  East,  569. 

(o)  3  Gampb.  181. 

[a]  a  bond  varying  slightly  from  the  statute  will  be  good,  if  it  include  all  the  obliga- 
tions imposed,  and  allow  every  defence  given  by  the  statute.  Rhodes  v.  Vawjhan,  2  Hawks. 
167.  Saunder  v.  Hughes,  2  Bailey,  504.  Payne  v.  Britton,  6  Rand.  101.  But  the  condition 
of  the  bond  must  pursue,  and  not  be  contrarj^  to  the  statute.  Basket  v.  Scott,  5  Litt.  208. 
Barnard  v.  Viele,  21  Wend.  89.  Though  a  bail  bond  which  omitted  the  nature  of  the  action 
and  the  amount  of  the  debt,  has  been  held  sufficient  in  Kentucky.  Palmer  v.  JrGinnis, 
Hard.  505.  But  regularly  it  should  show  substantially  at  whose  suit  the  arrest  was  made, 
the  amount  of  damages  demanded,  and  when  and  where  the  process  is  returnable.  Churchill 
V.  Perkins,  5  Mass.  542.  Stevens  v.  Claney,  1  Johns.  521.  JI'Lean  v.  Lillard,  1  Bibb.  146. 
Robeson  v.  Thompson,  4  Halst.  97.  Carter  v.  Cockrill,  2  Munf.  448.  See  note  [a],  p.  223, 
ante. 


OF  THE  BAIL  EOND.  224 

And  in  an  action  on  a  bail  bond,  the  return  of  the  writ,  on  ^vbicU  the 
defendant  in  the  original  action  was  arrested,  must  be  stated  with  cer- 
tainty.(/))  If  the  objection  to  the  bail  bond  appear  on  the  face 
of  the  declaration,  or  upon  oijer^  the  •defendant  may  demur ;  [  *225  ] 
but  otherwise  he  should  plead  it :  and  when,  by  pleading  or 
otherwise,  it  appears  in  any  part  of  the  record,  he  may  move  in  arrest  of 
judgment. (rt) 

If  the  bond  be  substantially  good,  it  cannot  be  avoided  for  any  trilling 
informality,  or  variance  of  the  condition  from  the  writ,  in  the  description 
of  the  plea,  or  of  the  time  or  place  of  appearance. [a]  Thus,  where  the 
writ  was  to  answer  the  plaintiff"  in  a  plea  of  debt  for  tlircc  humlrcd  and 
twenty  pounds,  or  in  a  ploa  of  trespass  within  an  ac  etiam,  and  the  con- 
dition was  to  answer  the  plaintiflf  in  a  plea  of  debt  or  trespass  gencralli/, 
or  without  mentioning  the  plea  at  all,  the  variances  were  holden  to  be 
immaterial  ;(/>)  for  the  statute  only  requires  a  bond  conditioned  for  the 
defendant's  appearance,  and  the  description  of  the  plea  is  merely  sur- 
plusage. And  accordingly,  where  the  sheriff,  upon  an  original  writ  in  a 
plea  of  trespass  on  the  case  on  'pi'omiscs,  took  a  bail  bond  conditioned  for 
the  defendant's  appearance,  to  answer  the  plaintiff  in  a  plea  of  trespass, 
the  court  held  it  to  be  valid. (c)  So,  where  the  writ,  in  trespass,  was  to 
appear  before  the  lord  the  kinrj  at  Westminster,  and  the  condition  was  to 
appear  before  the  justices  of  the  King's  Bench  at  Westminster, (r?)  the 
bond  was  holden  good.  And  where  the  writ,  by  original,  was  returnable 
before  the  lord  the  king,  loheresoever  he  shall  then  be  in  England,  and  the 
condition  was  without  the  words  wheresoever,  &c.,  the  court  gave  judgment 
for  the  plaintiff,  in  an  action  upon  the  bond ;  saying,  they  would  under- 
stand, that  by  appearing  before  the  king  was  meant,  before  the  king  in 
his  court,  and  not  before  the  king  in  pcrson.{e)  So,  where  the  condition 
of  the  bond,  in  an  action  by  original,  was  to  appear  before  the  king 
at  Westminster,  it  was  deemed  sufficient. (/)  And  where  a  declaration 
on  a  bail  bond,  in  setting  out  the  condition,  stated  that  if  the  defendant 
should  appear,  &c.,  to  answer  the  plaintiff  "  according  to  the  custom  of 
his  majesty's  court  of  Common  Bench  here,"  the  obligation  should  be  void  ; 
and  on  the  production  of  the  bond,  the  latter  words  were  omitted ;  the 
court  of  Common  Pleas  held,  that  this  was  no  variance,  as  it  was  only  neces- 
sary to  set  out  the  condition  according  to  its  legal  effect. ((/)     It  has  also 

(p)  2  Chit.  Rep.  624.  (a)  2  Durnf.  &  East,  569. 

(6)  Cro.  Jac.  286.    2  Lev.  123.    2  Show.  51.    T.  Joa.  137,  8.    6  .Mod.  122.    10  Mod.  327. 
Atkinxon  v.  Sattndcrson,  E.  25  Geo.  III.  K.  B. ;  but  see  2  Lev.  177,  .icml>.  contra. 

(c)  6  Durnf.  &  East,  702  ;  and  see  5  Moore,  538.    2  Brod.  &  Bing.  059,  S.  C. 

(d)  2  Lev.  180.    T.  Jon.  4G,  S.  C.    2  Vent.  237,  8.  (e)  2  Str.  1155,  6. 
(/)  9  East,  55  ;  but  see  1  Chit.  Rep.  323.    Ante,  129,  30. 

(ff)  3  Moore,  214;  and  see  3  Stark.  Ni.  Pri.  76. 


[a]  Misnomer  of  the  plaintiff  in  the  recital  will  not  of  itself  render  the  bond  void.  Col- 
hum  V.  J)owne.o,  10  Mass.  20.  Even  where  a  bail  bond  was  executed  by  the  principal  and 
the  bail,  but  tiie  name  of  the  bail  was  not  inserted  in  the  body  of  the  bond,  tiiouj;h  a  blank 
was  left  for  it,  and  tlie  i)laintill'  recovered  a  judgment  upon  it  aj^aiiist  bolii  the  principal 
and  the  bail,  which  judgment  stood  unreversed,  the  court  held  tlie  bond  valid,  and  would 
not  allow  the  plaintiff  to  maintain  an  action  against  the  sheriff  for  returning  a  defective 
bail  bond,  h'ri/nolds  v.  Gore,  4  Leigh.  270.  A  substantial  compliance  with  the  act  is  all 
that  is  required.  Mu.itin  v.  Muxfin,  13  Geo.  357.  Siiyar  v.  D'lves,  A/.  462.  Tlius,  where 
the  names  of  the  sureties  are  inserted  in  the  first  part  of  the  bond  and  signed  by  them,  but 
omitted  iu  the  condition  of  the  bond,  the  legal  effect  of  the  instrument  was  not  altered. 
Davidson  v.  Carter,  9  Geo.  501. 


225 


OF  THE  BAIL  BOND. 


been  holdcn,  that  the  statute  for  preventing  frivolous  and  vexatious  ar- 
rests(//)  is  merely  directory  to  the  sheriff;  and  does  not  avoid  the  bail 
bond,  where  there  is  no  affidavit  of  the  cause  of  action, (i)  or  the  sum  sworn 
to  is  not  indorsed  on  the  writ,(z)  or  even  where  the  bond  is  taken  in  a 

penalty,  being  more  than  double  the  amount  of  the  sum  sworn 
[  *22G  ]  to.(/c)     But  an  allegation,  that  an  action  was  ^depending  in  his 

majesty's  court  of  the  Bench  at  Westminster,  is  not  sustained  by 
proof  of  a  ijluries  bill  of  3Iiddlescx :  for  by  such  allegation  the  Common 
Bench  must  be  intended. (a)  So,  where  a  cajnas  ad  respondendum  was 
made  returnable  before  his  majesty' s  justices  of  the  Bench  dit  Westminster^ 
by  virtue  of  which  the  sheriff  issued  his  mandate  to  the  bailiff  of  a  liberty, 
commanding  him  to  take  the  defenant,  so  that  the  sheriff  might  have  his 
body  before  his  said  majesty  at  Westminster ;  and  the  bailiff  took  a  bail 
bond,  conditioned  for  the  defendant's  appearance  before  his  said  majesty 
at  Westminster  ;  the  court  of  Common  Pleas  held,  that  the  variance  be- 
tween the  bail  bond  and  the  writ  was  fatal,  and  therefore  that  the  bond 
was  void,  by  the  statute  23  Hen.  VI.  c.  9.(^)  And  in  an  action  on  a  bail 
bond,  where  the  condition  set  out  on  the  record  was,  "  to  answer  the 
plaintiff  in  a  plea  of  trespass,  and  also  to  a  bill  to  be  exhibited  against 
the  defendant  for  60/.  upon  promises,''  and  the  bond,  when  produced,  did 
not  contain  the  words  ^' upon  promises,'"  the  variance  was  holden  to  be 
fatal. ((?) 

The  defendant  having  given  a  bail  bond,  could  not  formerly  have  dis- 
charged his  bail  to  the  sheriff,  by  surrendering  himself  before  the  return 
of  the  writ ;  for  it  was  considered  as  a  settled  point,  that  nothing  could 
be  a  performance  of  the  condition  of  the  bail  bond,  but  putting  in  and 
perfecting  bail  above. (cZ)  But  it  has  since  been  determined,  that  if  the 
defendant  surrender  himself  to  the  sheriff,  before  or  on  the  return-day  of 
the  writ,  the  bail  bond  may  be  given  up  to  be  cancelled :  after  which,  the 
plaintiff  cannot  take  an  assignment  of  it  ;(e)  nor  can  he  rule  the  sheriff,  or 
maintain  an  action  against  him,  for  not  assigning  it.(/)  And  where  the 
defendant  surrendered  to  the  gaoler,  at  the  county  gaol,  in  discharge  of 
his  bail  to  the  sheriff,  before  ttvelve  o'clock  on  the  first  day  of  terra,  being 
the  return  day  of  the  writ,  and  the  under-sheriff,  who  lived  at  a  distance, 
signified  his  assent  to  the  surrender  by  return  of  post  the  next  day,  it  was 
held  sufficient  to  discharge  the  bail  bond,  of  which  the  plaintiff  had  taken 
an  assignment  afterwards,  with  notice  of  such  surrender.  (^^)  But  it  is 
optional  in  the  sheriff,  whether  he  will  accept  the  surrender  of  the  party, 
in  discharge  of  the  bail  bond :  and  therefore,  where  notice  of  such  sur- 
render was  given  to  the  sheriff,  and  to  the  gaoler  in  whose  custody  the 
party  then  was,  at  the  suit  of  another,  after  which  the  gaoler  let  the  party 
out  of  custody,  the  court  held  that  the  gaoler  was  not  liable  upon  his 

{h)  12  Geo.  I.  c.  29. 

\i)  1  Bur.  330;  but  see  2  New  Rep.  C.  P.  202,  semb.  contra. 

\k)  2  Wils.  69.    1  Bur.  331.    1  H.  Blac.  76.    2  Bos.  &  Pul.  109. 

(a)  3  Maule  &  Sel.  166  ;  and  see  7  Taunt.  271.    1  Moore,  19,  S.  C. 

(6)  6  Taunt.  551.    2  Marsh.  258,  S.  C. 

(c)  1  Ry.  &  Mo.  93.  And  see  further,  as  to  the  nature  and  form  of  the  bail  bond,  Petersd. 
Part  I.  Chap.  VI. 

{d)  5  Bur.  2683  ;  and  see  Dalt.  Sher.  356.    1  Price,  262. 

(e)  Callaioay  v.  Seymoiir,  E.  42  Geo.  III.  K.  B. 

(/)  6  Durnf.  &  East,  753.  7  Durnf.  &  East,  122.  8  Durnf.  &  East,  456,  505;  and  see  1 
Bos.  &  Pul.  325. 

{gg)  10  East,  100;  and  see  8  Moore,  518.    1  Bing.  423,  S.  C. 


ON  THE  ARREST.  226 

bond  of  indemnity  to  the  sheriif,  as  for  an  escape  in  tlic  former  suit ;  for 
the  party  was  not  legally  in  the  custody  of  the  sheriff  or  his  gaoler,  merely 
by  virtue  of  such  surrender.(/i)     And  it  seems,  that  rendering 
the  ^defendant  to  the  King's  Bench  prison,  before  the  return  of  [  *22T  ] 
the  writ,  will  not  discharge  his  bail  to  the  sheriir.((<) 

The  provisions  of  the  statute  of  Hen.  VI.  are  not  applicable  to  securi- 
ties taken  by,  or  for  the  benefit  of  the  plaiutifr:(/y)  And  hence,  an  attor- 
ney's undertaking  to  appear  for  the  defendant  is  binding,  if  given  to  the 
plaintiff  in  the  cause,  though  it  be  not  exactly  in  the  form  prescribed. 
And  an  undertaking,  by  a  third  person,  to  sign  a  bail  bond  for  the  defen- 
dant, is  not  considered  as  an  undertaking,  within  the  statute  of  frauds, (c) 
to  answer  for  the  debt,  default,  or  miscarriage  of  another. ((^)  By  an  old 
rule  of  court,((?)  "a  prisoner  taken  upon  a  capias  shall  not  be  discharged, 
till  he  hath  given  bond  to  appear ;  unless  the  plaintiff  or  his  attorney 
shall  consent  to  take  an  appearance,  without  bail:"  But  it  is  now  the 
common  practice  to  take  an  attorney's  undertaking  to  the  plaintiff,  whore 
special  bail  is  required;  and  the  courts  will  enforce  it  by  attachment. (/) 

It  sometimes  happens,  that  persons  arrested  upon  mesne  process  may 
not  be  able  to  find  sufficient  sureties  for  their  appearance  at  the  return  of 
the  writ,  and  yet  may  be  able  to  make  a  deposit  of  the  money  for  which 
they  are  so  arrested,  together  with  a  competent  sum  for  costs :  and  there- 
fore, by  the  statute  43  Geo.  III.  c.  46,  §  2,  reciting  that  it  is  expedient 
that  persons  arrested  should,  upon  making  such  deposit,  be  permitted  to 
go  at  large  until  the  return  of  the  writ,  without  finding  bail  to  the  sheriif 
for  their  appearance  at  the  return  thereof;  it  is  enacted,  that  "all  per- 
sons who  shall  be  arrested  upon  mesne  process,  within  those  parts  of  the 
united  kingdom  of  Great  Britain  and  Ireland,  called  England  and  Ire- 
land^ shall  be  allowed,  in  lieu  of  giving  bail  to  the  sheriff,  to  deposit  in 
the  hands  of  the  sheriff,  by  delivering  to  him  or  to  his  under-sheriff,  or 
other  officers  to  be  by  him  appointed  for  that  purpose,  the  sum  indorsed 
upon  the  writ,  by  virtue  of  the  affidavit  for  holding  to  bail  in  that  action, 
together  with  ten  pounds  in  addition  to  such  sum,  to  answer  the  costs 
which  may  accrue  or  be  incurred  in  such  action,  up  to  and  at  the  time  of 
the  return  of  the  writ,  and  also  such  further  sum  of  money,  if  any,  as 
shall  have  been  paid  for  the  king's  fine  upon  any  original  writ;  and  shall 
thereupon  be  discharged  from  such  arrest,  as  to  the  action  in  which  he, 
she,  or  they  shall  so  deposit  the  sum  indorsed  on  the  writ."  And  that 
"  the  sheriff  shall,  in  every  such  case,  at  or  before  the  return  of  the  said 
writ,  pay  into  the  court  in  which  such  writ  shall  be  returnable,  the  sum 
of  money  so  deposited  with  him  as  aforesaid;  and  thereupon,  in  case  the 
defendant  or  defendants  shall  afterwards  duly  put  in  and  perfect  bail  in 
such  action,  according  to  the  course  and  practice  of  such  court, 
the  sum  of  money  so  deposited  and  paid  into  court  *as  aforesaid  [  *228  ] 
shall,  by  order  of  the  court,  upon  motion  to  be  made  for  that 
purpose,  be  repaid  to  such  defendant  or  defendants. (aa)    But  in  case  the 

{h)  1  East,  383. 

(a)  Foifter  v.  Ui/de,  M.  41  Geo.  III.  K.  B. ;  and  see  1  Price,  2GJ  ;  but  see  3  Bos.  &  Pul.  232. 
(6)  Cro.  Eliz.  ioo.    1  Sid.  132.    1  Lev.  98,  S.  C.    2  Mod.  305.    1  Durnf.  &  East,  421.    4 
East,  5G9.    2  Smith  R.  53. 

(c)  29  Car.  II.  c.  3,  g  4.  [d]  1  By.  &  Mo.  348. 

(e)  R.  M.  1654,  ?  6,  K.  B.    R.  M.  1G54,  ^  9,  C.  P. 

(/)  1  Durnf.  &  East,  422.    4  East,  509.    2  Sraitli,  R.  53. 

\aa)  For  the  form  of  an  aflidavit  for  this  purpose,  see  Append.  Chap.  XI.  \  4. 


228  OF  THE  DUTY  OF  SHERIFFS,  ETC. 

defendant  or  defendants  shall  not  duly  put  in  and  perfect  bail  in  such  action, 
then  and  in  such  case  the  said  sum  of  money  so  deposited  and  paid  into 
court  as  aforesaid  shall,  by  order  of  the  court,  upon  a  like  motion  to  be 
made  for  that  purpose,  be  paid  out  to  the  plaintiff  or  plaintiffs  in  such  action, 
who  shall  bo  thereupon  authorized  to  enter  a  common  appearance,  or  file 
common  bail  for  such  defendant  or  defendants,  if  the  said  plaintiff  or  plain- 
tiffs shall  so  think  fit :  such  payment  to  the  plaintiff  or  plaintiffs  to  be  made 
subject  to  such  deductions,  if  any,  from  the  sum  of  ten  pounds  deposited 
and  paid  to  answer  the  costs  as  aforesaid,  as  upon  the  taxation  of  the  plain- 
tiff's costs,  as  well  of  the  suit  as  of  his  application  to  the  court  in  that 
behalf,  may  be  found  reasonable." 

In  the  construction  of  the  above  act  of  parliament,  (which  has  been 
sometimes,  though  erroneously,  called  Lord  Ellenhorougli  8  act,)(i)  it  has 
been  holden,  that  where  money  is  paid  to  the  sheriff  upon  an  arrest,  it  shall 
be  presumed  to  have  been  paid  as  a  deposit  in  lieu  of  bail,  unless  a  discharge 
or  some  acknowledgement  in  writing  be  given  to  the  defendant  for  the  debt 
and  costs. (c)  This  act  was  made  in  ease  of  defendants,  and  not  for  the 
benefit  of  plaintiffs :  And  therefore,  where  the  defendant  puts  in  bail  above, 
who,  on  being  excepted  to,  render  him,  instead  of  justifying,  the  plaintiff  is 
not  entitled  to  receive  the  money  out  of  court ;  but  the  defendant,  if  he 
made  the  deposit,  may  in  such  case  receive  it  back  \{d)  or  if  the  deposit  was 
made  by  any  other  person  than  the  defendant,  the  court  will,  upon  bail  above 
being  put  in  and  perfected,  or  the  defendant  surrendered,  order  it  to  be  re- 
paid in  the  bail,  or  other  person  by  whom  it  was  actually  deposited,  and  not 
to  the  defendant(e)  The  above  act  does  not  controul  the  discretion  of  the 
court,  with  respect  to  the  time  for  putting  in  bail:  therefore,  where  money 
is  paid  into  court  in  lieu  of  bail,  Avhich  is  not  put  in  and  perfected  in  due 
time,  the  court,  on  an  affidavit  of  merits,  will  grant  further  time  to  the  de- 
fendant.(/)  And  where  the  plaintiff  had  made  application  for  the  money 
to  be  paid  out  of  court  to  him,  and  that  rule  was  discharged  on  showing 
cause,  and  it  appeared,  on  fully  discussing  the  merits  of  the  case,  that  the 
defendant  was  entitled  to  the  money,  the  court  of  Common  Pleas  granted  a 
rule,  absolute  in  the  first  instance,  for  the  money  to  be  paid  over  to  him.(^) 
If  a  defendant,  being  arrested  by  a  wrong  name,  pay  the  amount  of  the  sura 
sworn  to,  and  lOZ.  for  costs  to  the  sheriff,  without  prejudice,  the  plaintiff 
will  not  be  permitted  to  take  it  out  of  court,  on  the  defendant's 
[  *229  ]  omitting  to  perfect  bail:(/A)  And  neither  the  *sheriff,  nor  officer 
of  the  court,  is  entitled  to  poundage,  on  the  money  being  taken 
out  of  court.(a) 

When  bail  above  is  not  put  in  and  perfected  in  due  time,  the  plaintiff  is 
entitled,  by  the  express  words  of  the  statute,  to  have  the  money  paid  him, 
by  order  of  the  court,  upon  motion  made  for  that  purpose. (65)  And,  in  the 
King's  Bench,  where  a  defendant  cannot  be  found,  so  as  to  serve  him  per- 
sonally with  a  rule  for  taking  out  the  money  deposited  in  the  hands  of  the 
sheriff,  the  court  will  allow  the  service  to  be  good,  by  leaving  a  copy  of  the 

{h)  1  Smith,  R.  128.  ,  (c)  Id.  127. 

{d)  4  Taunt.  669.  3  Maule  &  Sel.  283.  2  Moore,  610.  8  Taunt.  557,  S.  C.  1  Chit.  Rep. 
145,  S.  P.    2  Chit.  Rep.  71  ;  and  see  7  Moore,  432.    1  Bing.  103,  S.  C. 

(e)  1  gmith,  R.  13  ;  but  see  2  Moore,  610. 

f/)  2  Chit.  Rep.  71.  (^)  4  Taunt.  670.  (A)  5  Taunt.  623. 

(fl)  2  Barn.  &  Aid.  770.    1  Chit.  Rep.  529,  S.  C.    6  Moore,  124. 

{hh)  For  the  form  of  an  affidavit  for  this  purpose,  see  Append.  Chap.  XI.  \  5,  aud  for  the 
rule,  of  court  thereon,  id.  \  6. 


ON  THE  ARREST.  229 

rule  at  the  defcntlant'.s  last  place  of  aLude,  and  sticking  it  up  in  the  oK\cq.{cc) 
In  the  Common  Pleas,  where  the  defendant,  on  being  arrested,  paid  the  debt 
and  ten  pounds  in  addition  for  costs,  -which  sum  was  more  than  sufficient  to 
cover  them,  and  informed  the  plaintifl"s  attornc}',  that  he  should  reclaim 
only  the  surplus  ■which  might  remain  after  paj'ment  of  debt  and  costs,  and 
the  [)laintift"s  attorney,  on  the  slierifT's  omitting  after  request  to  remit  the 
money,  proceeded  in  the  action ;  the  court  held,  that  the  defendant  was  not 
liable  to  pay  the  costs  so  incurred  after  the  arrest.(rZ)  The  cases  in  -which 
the  plaintift'  may  think  fit  to  enter  a  common  appearance,  or  file  common 
bail  for  the  defendant,  are  ■where  he  claims  and  means  to  proceed  for  more 
than  the  sum  indorsed  on  the  writ :  but  in  these  cases,  there  is  no  provision 
made  by  the  act,  with  regard  to  costs,  if  he  should  not  eventually  recover 
more  than  that  sum ;  nor  for  his  refunding  any  part  of  it,  if  he  should 
recover  less.  In  an  action  for  a  malicious  arrest,  an  allegation  that  the 
plaintiff  gave  bail  to  the  sheriff  for  his  appearance  at  the  return  of  the 
writ,  is  not  supported  by  evidence  that  he  paid  the  debt  and  10/.  for  costs 
into  the  hands  of  the  sheriff;  but  he  may  still  maintain  the  action,  although 
he  cannot  recover  for  the  consequential  damages. (c) 

If  the  defendant,  upon  being  arrested,  remain  in  custody,  he  is  either  con- 
fined in  a  private  house,  or  carried  to  the  county  gaol.  And  where  a  per- 
son was  arrested,  by  virtue  of  a  warrant  directed  to  a  sheriff's  officer,  but 
on  account  of  illness  was  permitted  to  remain  a  few  days  in  his  own  house, 
in  the  custody  of  the  officer's  follower,  who  was  not  named  in  the  warrant, 
but  who  kept  the  key  of  the  house  in  his  possession,  and  was  then  removed 
to  gaol,  where  he  continued  for  the  remainder  of  two  months,  the  court  of 
Common  Pleas  held,  that  this  was  a  legal  imprisonment,  so  as  to  constitute 
an  act  of  bankruptcy. (/)  For  preventing  the  oppression  of  inferior  officers, 
in  the  execution  of  process  for  debt,  it  is  enacted  by  the  statute  32  Geo.  II. 
c.  28, (^)  commonly  called  the  Lords'  Act,  that  "no  sheriff,  under-sheriff, 
bailiff,  Serjeant  at  mace,  or  other  officer  or  minister,  shall  conveyor  carry, 
or  cause  to  be  conveyed  or  carried,  any  person  or  persons  by  him 
or  thera  arrested,  or  being  in  his  or  their  custody,  by  *virtue  or  [  *230  ] 
colour  of  any  action,  writ,  process,  or  attachment,  to  any  tavern, 
alehouse,  or  other  public  victualling  or  drinking  house,  or  to  the  private 
house  of  any  such  officer  or  minister,  or  of  any  tenant  or  relation  of  his, 
without  the  free  and  voluntary  consent  of  the  person  or  persons  so  arrested 
or  in  custody ;  nor  charge  any  such  person  or  persons  with  any  sum  of 
money,  for  any  wine,  beer,  ale,  victuals,  tobacco,  or  any  other  liquor  or 
things  whatsoever,  save  what  he,  she,  or  they  shall  call  for,  of  his,  her,  or  their 
own  free  accord  :  nor  shall  cause  or  procure  him,  her,  or  them,  to  call  or 
pay  for  any  such  liquor  or  things,  except  what  he,  she,  or  they  shall  par- 
ticularly and  freely  ask  for ;  nor  shall  demand,  take,  or  receive,  or  cause 
to  be  demanded,  taken,  or  received,  directly  or  indirectly,  any  other  or 
greater  sum  or  sums  of  mone}^  than  is  or  shall  be  by  law  allowed  to  be 
taken  or  demanded  for  any  arrest  or  taking,  or  for  detaining,  or  waiting 
till  the  person  or  persons  so  arrested  or  in  custody  shall  have  given  an 
appearance  or  bail,  as  the  case  shall  require,  or  agreed  with  the  person  or 
persons  at  whose  suit  or  prosecution  he,  she,  or  they  shall  be  taken  or 
arrested,  or  until  he,  she,  or  they  shall  be  sent  to  the  proper  gaol  bclong- 

(cc)  1  Chit.  Rep.  675.       (d)  Brod.  &  Hing.  273.    7  iloore,  S3,  S.  C. ;  but  see  7  Moore,  557, 

(e)  4  Campb.  -213.    1  Stark.  Ni.  I'ri.  48,  S.  (J. 

(/)  6  TauQt.  106.    1  .Marsh.  469,  S.  C.  (y)  2  1. 


230  OF  THE  DUTY  OF  SHERIFFS,  ETC., 

in^i-  to  the  county,  riding,  division,  city,  town,  or  place,  where  such  arrest 
or  taking  shall  be ;  nor  shall  exact  or  take  any  reward,  gratuity  or  money, 
for  keeping  the  person  or  persons  so  arrested  or  in  custody,  out  of  gaol  or 
prison." 

And  that  "  no  sheriff,  &c.  shall  carry  any  such  person  to  any  gaol  or  pri- 
son, within  four  and  twenty  hours  from  the  time  of  such  arrest,  unless 
such  person  or  persons  so  arrested  shall  refuse  to  be  carried  to  some  safe 
and  convenient  dwelling-house,  of  his,  her,  or  their  own  nomination  or 
appointment,  within  a  city,  borough,  corporation,  or  market  town,  in  case 
such  person  or  persons  shall  be  there  arrested,  or  within  three  miles  from 
the  place  where  such  arrest  shall  be  made,  if  the  same  shall  be  made  out 
of  any  city,  borough,  corporation,  or  market  town,  so  as  such  dwelling- 
house  be  not  the  house  of  the  person  arrested,  and  be  within  the  county, 
riding,  division,  or  liberty  in  which  the  person  under  arrest  was  arrested  ; 
and  then  and  in  any  such  case,  it  shall  be  lawful  to  and  for  any  such 
sheriff,  or  other  officer  or  minister,  to  convey  or  carry  the  person  or 
persons  so  arrested,  and  refusing  to  be  carried  to  such  safe  and  conve- 
nient dwelling-house  as  aforesaid,  to  such  gaol  or  prison  as  he,  she,  or 
they  may  be  sent  to,  by  virtue  of  the  action,  writ  or  process  against  him, 
her,  or  them  :  And  that  no  sheriff,  &c.,  shall  take  or  receive  any  other  or 
greater  sum  or  sums,  for  one  or  more  night's  lodging,  or  for  a  clay's  diet, 
or  other  expenses  of  any  person  or  persons  under  arrest,  on  any  writ, 
action,  attachment  or  process,  other  than  what  shall  be  allowed  as  reason- 
able in  such  cases,  by  some  order  or  orders  made  by  justices  of  the  peace, 
in  pursuance  of  the  said  act.  "(a) 

These  provisions  are  not  confined  to  persons  arrested  on  mesne  process ; 
the  intent  of  them  being,  that  such  persons  may  have  an  opportunity  of 
procuring  bail,  or  of  agreeing  with  the  plaintiffs  :  and  it  has  accordingly 
been  determined,  that  a  sheriff's  officer  is  not  liable  to  the  penal- 
[  *231  ]  ties  of  the  ^statute,  for  carrying  a  defendant  taken  in  execution 
to  prison,  within  twenty-four  hours  after  the  arrest,  (aa)  Neither 
is  the  sheriff  liable  to  an  action  of  escape,  for  taking  a  prisoner  in  execu- 
tion to  a  lock-up  house,  and  keeping  him  there  fourteen  days  before  the 
return  of  the  writ.(5)  No  time  is  limited  by  the  above  act,  within  which  a 
defendant,  arrested  on  mesne  process,  should  be  carried  to  the  county 
gaol :  And  where,  to  an  action  for  an  escape  on  mesne  process,  the  sheriff 
pleaded,  that  the  debtor  was  rescued  out  of  his  custody,  as  he  was  carry- 
ing him  to  Newgate,  to  which  the  plaintiff  replied,  that  the  debtor  ought 
to  have  been  carried  to  prison  within  a  convenie7it  time  after  the  arrest, 
and  that  he  was  rescued,  because  the  defendant  neglected,  &c.  the  court 
thought  the  replication  bad,  and  gave  judgment  for  the  defendant.(e)  But 
it  seems  to  be  the  duty  of  the  sheriff,  if  possible,  to  carry  the  defendant  to 
the  county  gaol,  by  the  return  of  the  writ  on  which  he  was  arrested  ;[d) 
and  that  afterwards  the  sheriff  keeps  him  at  his  peril,  in  case  the  creditor 
is  delayed.  Where  the  defendant,  however,  is  arrested  on  the  return  day, 
he  cannot  be  carried  to  the  county  gaol,  till  the  expiration  of  twenty-four 
hours  after  the  arrest,  (e)  And  where  the  sheriff,  having  arrested  a  defend- 
ant on  mesne  process,  keeps  him  in  his  custody,  after  the  return  of  the 

(a)  ?  2.  (ao)  4  Durnf.  &  East,  555. 

(h)  4  Taunt.  608.  (c)  1  Lutw.  128. 

(d)  Per  BuHer,  J.  5  Durnf.  &  East,  41,  and  see  2  Bing.  317. 

(e)  5  Durnf.  &  East,  40. 


ON  THE  ARREST.  231 

•writ,  and  then  carries  him  to  prison,  lie  is  not  liable  to  an  action  on  the 
case,  as  for  an  escape,  if  the  jury  find  that  tlie  plaintiflf  has  not  been 
delayed,  or  prejudiced  in  his  suit.(/) 

For  the  further  protection  of  persons  arrested,  against  the  oppression  of 
inferior  officers,  and  the  exaction  of  gaolers,  to  whose  custody  they  may  be 
committed,  it  is  by  the  same  statute(  (/)  enacted,  that  "  every  sheriff,  under- 
sheriff,  bailiff  of  any  liberty,  gaoler  and  keeper  of  any  prison  or  gaol,  and 
other  person  and  persons,  by  whom,  or  to  whose  custody  or  keeping,  any 
one  shall  be  arrested,  taken,  committed,  or  charged  in  execution,  by  virtue 
of  any  writ,  process,  action,  or  attachment,  shall  at  all  times  permit  and 
suffer  every  such  person  and  persons,  during  his,  her,  and  their  respective 
continuance  under  arrest  or  in  custody,  or  in  execution,  for  any  debt,  dam- 
ages, costs,  or  contempt,  at  his,  her,  and  their  free  will  and  pleasure,  to  send 
for,  and  have  brouglit  to  him,  her,  or  thera,  at  seasonable  times  in  the  day 
time  any  beer,  ale,  victuals,  or  other  necessary  food,  from  what  place  he, 
she,  or  they  shall  think  fit,  or  can  have  the  same ;  and  also  to  have  and  use 
such  bedding,  linen,  or  other  necessary  things,  as  he,  she,  or  they  shall  liave 
occasion  for,  and  think  fit,  or  shall  be  supplied  with,  during  his,  her,  or  their 
continuance  under  any  such  arrest  or  commitment,  without  purloining  or 
detaining  the  same,  or  any  part  thereof,  or  enforcing  or  requiring  him,  her, 
or  them  to  pay  for  the  having  or  using  thereof,  or  putting  any  manner  of 
restraint  or  difficulty  upon  him,  her,  or  them,  in  the  using  thereof, 
or  *relating  thereto ;  and  no  such  prisoner  or  prisoners  shall  pay  [  *232  ] 
any  thing  in  respect  thereof,  to  any  such  sheriff,  &c.  And  that  no 
gaoler  or  keeper  of  any  gaol  or  prison,  or  other  person  thereto  belonging, 
shall  demand,  take,  or  receive,  directly  or  indirectly,  of  any  prisoner  or 
prisoners  for  debt,  damages,  costs,  or  contempt,  any  other  or  greater  fee 
or  fees  whatsoever,  for  his,  her,  or  their  commitment,  or  coming  into  gaol, 
chamber  rent  there,  release  or  discharge,  than  what  shall  be  mentioned  or 
allowed  in  the  list  or  table  of  fees,  settled,  inrolled  and  registered,  accord- 
ing to  the  directions  of  the  said  act."(a) 

And  for  the  more  speedy  punishing  gaolers,  bailiffs,  and  others  employed 
in  the  execution  of  process,  for  extortion,  or  other  abuses  in  their  respective 
offices  and  places,  it  is  further  enacted,  that  "  upon  the  petition  in  term 
time,  of  any  prisoner  or  person  being,  or  having  been  under  arrest  or  in 
custody,  complaining  of  any  exaction  or  extortion  by  any  gaoler,  bailiff,  or 
other  officer  or  person,  in  or  employed  in  the  keeping  or  taking  care  of  any 
goal  or  prison,  or  other  place,  where  any  such  prisoner  or  person  under,  or 
having  been  made  under  arrest  or  in  custody,  by  any  process  or  action,  is  or 
shall  have  been  carried,  or  in  respect  of  the  arresting  or  apprehending  any 
person  or  persons,  by  virtue  of  any  process,  action,  or  warrant,  or  of  any 
other  abuse  whatsoever,  committed  or  done  in  their  respective  offices  or 
places,  unto  any  of  his  majesty's  courts  of  record  at  Westminister,  from 
whence  the  process  issued,  by  which  any  person  who  shall  so  petition  was 
arrested,  or  under  whose  power  or  jurisdiction  any  such  gaol,  prison,  or 
place  is ;  or,  in  vacation  time,  to  any  judge  of  any  such  courts  at  West- 
7ninster,  from  whence  any  such  process  so  issued;  or  to  the  judges  of  assize, 
&c. :  every  such  court,  judges  of  assize,  &c.  are  by  the  said  act  authorized 
and  required  to  hear  and  determine  the  same,  in  a  summary  way,  and  to 
make  such  order  thereupon,  for  redressing  the  abuses  which  shall  by  any 

(/)/(/.  37,  but  see  9  Moore,  584.     2  Bing.  31T,  S.  C.  (y)  §  4.  («)  2  12. 


232  OF  THE  DUTY  OF  SHERIFFS,  ETC., 

such  petition  be  complained  of,  and  for  punishing  such  officer  or  person  com- 
plained against,  and  for  making  reparation  to  the  party  or  parties  injured,  as 
they  shall  think  just,  together  with  the  costs  of  every  such  complaint:  and 
all  orders  and  determinations  which  shall  be  thereupon  made,  by  any  of  the 
said  courts,  &c.  shall  have  the  same  effect,  force  and  virtue,  as  other  orders 
of  the  same  courts,  &c;  and  obedience  thereto  may  be  enforced  in  like 
manner,  by  attachment  or  otherwise. "(?j)  And  that  every  sheriff,  under- 
sheriff,  bailiff  of  any  liberty,  bailiff,  Serjeant  at  mace,  gaoler,  and  other 
officer  and  person  as  aforesaid,  who  shall  in  anywise  offend  against  the 
said  act,  shall,  for  every  such  offence,  (over  and  above  such  other  penal- 
ties and  punishments  as  he  may  be  liable  unto,)  forfeit  and  pay  to  the 
party  thereby  aggrieved,  the  sum  of  fifty  pounds,  to  be  recovered,  with 
treble  costs  of  suit,  by  action  of  deU.,  bill,  plaint,  or  information  in  any  of 
his  majesty's  courts  of  record  diiWest')ninster.{c) 

*At  common  law,  a  sheriff  has  no  right  to  take  fees  for  the 
[  *233  ]  execution  of  process  :(a)  And,  by  the  statute  23  Hen.  VI.  c.  9, 
he  is  only  entitled  to  the  fee  of/o?tr  pence,  for  issuing  his  warrant 
on  mesne  process,  to  arrest  the  defendant  ;(<7)  although,  when  the  plaintiff 
has  paid  the  sum  of  one  guinea  to  the  plaintiff  for  an  arrest,  he  has  been 
allowed  it  by  the  master  or  prothonotary,  in  the  taxation  of  costs. (55)  And 
where  a  sheriff's  officer,  who  had  arrested  a  defendant,  demanded  and  re- 
ceived from  him,  a  larger  sum  than  he  was  liable  to  pay  as  a  caption  fee, 
and  for  the  expense  of  a  bail-bond,  &c.  the  court  of  Exchequer,  on  motion, 
ordered  it  to  be  referred  to  the  master,  to  ascertain  what  the  officer  was 
entitled  to  on  that  account,  and  ordered  him  to  restore  the  surplus  to  the 
defendant,  and  to  pay  the  costs  of  the  application. (ec)  But  if,  by  the  abuse 
of  the  process  of  one  of  the  courts  at  Westminster,  a  sheriff's  officer  extort 
a  promissory  note  from  a  suitor,  and  then  declare  upon  that  note,  in  another 
of  the  courts  Q.iWestminstery  the  latter  court  cannot  interfere  summarily  to 
punish  the  officer,  under  the  statute  32  Geo.  II.  c.  28,  §  12.{d)  And  in 
order  to  recover  a  penalty  on  this  statute,  against  a  sheriff's  officer,  for 
taking  a  larger  fee  than  is  allowed  by  law  upon  arrest,  the  plaintiff  must 
prove  what  sum  is  allowed  by  law,  either  by  a  table  of  fees,  or  some  regu- 
lation respecting  it,  by  the  officers  of  the  court  out  of  which  the  process 
issued. (e)  The  justices  in  sessions  have  no  authority  to  fix  the  bailiff's  fees 
for  an  arrest :(/ )  And  an  action  will  not  lie  against  the  sheriff,  where  more 
than  the  sum  allowed  has  been  taken  for  a  bail-bond,  by  one  of  his  officers, 
to  whom  the  warrant  was  not  directed,  but  to  whose  lock-up  house  the 
defendant  was  brought,  after  being  arrested. (^) 

When  a  defendant  escapes  out  of  legal  custody,  he  may  be  either  retaken 
by  the  sheriff  or  other  officer  on  fresh  pursuit,  or  by  virtue  of  an  escape 

[1)  §  n. 

(c)  §  12.  And  see  stat.  3  Geo.  I.  c.  15,  ?  13,  and  5  Geo.  IV.  c.  106,  §  16,  by  which  latter 
act,  the  judges  of  the  courts  of  Great  Sessions  in  Wales  are  authorized  to  remove  any  officer 
of  the  said  courts,  (not  nominated  and  appointed  by  the  crown,)  or  his  deputy,  for  pecula- 
tion, extortion,  or  other  misconduct,  and  appoint  a  new  officer  or  deputy,  in  the  room  of  the 
person  so  removed. 

[a]  2  Barn.  &  Aid.  562.  1  Chit.  Rep.  295,  S.  C. ;  and  see  2  Barn.  &  Aid.  TYO.  1  Chit.  Rep. 
529,  S.  C.     5  Barn.  &  Cres.  328.     8  Dowl.  &  Ryl.  48,  S.  C.     6  Moore,  124. 

(bh)  1  Chit.  Rep.  2,02,  per  Holroyd,  J. ;  and  see  2  Blac.  Rep.  1101.  3  Durnf.  &  East,  417. 
2  New  Rep.  C.  P.  59.     1  Stark.  Ni.  Pri.  417.     1  Ry.  &  Mo.  314. 

{cc)  4  Price,  309.  {d)  2  Bos.  &  Pul.  88. 

(e)  1  E.sp.  Rep.  361.     2  New  Rep.  C.  P.  59.  (/)  3  Durnf.  &  East,  417. 

[g)  4  Esp.  Rep.  63. 


ON  THE  ARREST.  233 

warrant,  (if  he  escaped  out  of  the  custody  of  the  marslial  of  the  King's 
Bench,  or  Avarden  of  the  Fleet  prison,)  on  the  statute  1  Ann.  stat.  2,  c.  6. 
And  tliough  in  general  a  defendant  cannot  be  retaken  on  fresh  pursuit,  after 
a  voluntanj  cscape,(//)  yet  it  has  been  determined,  tliat  a  bailiff  vho  has 
arrested  a  prisoner  on  mesne  process,  may  retake  him  before  the  return  of 
the  writ,  though  he  voluntarily  permitted  tlie  prisoner  to  escape  immediately 
after  the  arrest.(e)  By  the  above  statute(/")  it  is  enacted,  that  "  if  any  per- 
son or  persons  committed  or  rendered  to,  or  charged  in  custody  of  the  mar- 
shal of  the  King's  Bench,  or  prison  of  the  Fleet,  either  in  execution  or 
upon  mesne  process,  or  upon  any  contempt  in  not  performing  the 
order  or  decree  of  a  Court  of  Equity,  by  any  of  'his  majesty's  [  *234  ] 
courts  at  WcistminHter,  shall  escape  from  the  custody  of  the  mar- 
shal or  prison  of  the  King's  Bench,  or  from  the  prison  of  the  Fleets  or  shall 
go  at  large,  it  shall  and  may  be  lawful,  upon  oath  thereof  in  writing,  to  be 
made  by  one  or  more  credible  person  or  persons,  before  any  one  of  the 
judges  of  that  court  where  such  action  was  entered,  or  judgment  and  exe- 
cution were  obtained,  or  where  the  party  Avere  so  committed  or  charged  as 
aforesaid,  to  and  for  such  judge,  before  whom  such  oath  shall  be  made  as 
abovesaid,  and  such  judge  is  thereby  authorized  and  required,  from  time  to 
time,  to  grant  unto  any  person  whatsoever,  who  shall  demand  the  same,  one 
or  more  warrant  or  warrants  under  his  hand  and  seal,  therein  reciting  the 
action  or  actions,  execution  or  executions,  contempt  or  contempts,  with 
which  such  person  or  persons,  so  escaping  or  going  at  large,  stood  charged, 
or  were  committed,  at  the  suit  of  any  person  or  persons,  on  whose  behalf 
such  warrant  or  warrants  shall  be  demanded,  at  the  time  of  such  escape  or 
going  at  large,  (which  said  warrant  or  warrants  shall  be  in  force  in  all  places 
whatsoever,  within  the  kingdom  of  England.,  dominion  of  Wales,  and 
town  of  Berwick  upon  Tweed,)  directed  to  all  sheriffs,  mayors,  bailiffs,  con- 
stables, head-boroughs,  and  tithing  men,  therein  and  thereby  commanding 
them,  and  every  of  them,  in  their  respective  counties,  cities,  towns,  and 
precincts,  to  seize  and  retake  such  person  or  persons,  so  escaped  or  going  at 
large;  and  such  person  or  persons,  so  retaken  upon  such  warrant,  forthwith 
to  convey  and  commit  to  the  common  gaol  of  such  county,  where  such  per- 
son or  persons,  so  escaped  or  going  at  large,  shall  be  retaken,  there  to 
remain  without  bail  or  mainprize,  or  being  thence  upon  any  account  what- 
soever delivered  or  removed,  until  he,  she,  or  they  shall  have  made  full  pay- 
ment or  satisfaction  to  the  respective  plaintiff  or  plaintiffs,  creditor  or  credi- 
tors, in  such  action  or  actions,  execution  or  executions  named,  or  until  the 
iudcment  or  iudfrments,  on  which  such  execution  or  executions  was  or  were 
sued  out  against  such  person  or  persons,  shall  be  reversed  or  discharged  by 
due  course  of  law,  or  until  judgment  in  such  action  or  actions  be  given  for 
such  person  or  persons  so  committed  as  aforesaid,  or  until  the  said  contempt 
or  contempts,  for  which  such  person  or  persons  were  or  shall  be  committed, 
be  cleared  and  discharged ;  except  such  person  or  persons  be  charged  with 
treason  or  felony,  or  any  other  crime,  matter,  or  cause,  for  and  on  the  behalf 
of  the  queen's  majesty,  her  heirs  and  successors  ;  and  if  he  or  she,  for  any 
such  cause  be  removed  to  any  other  gaol  or  prison,  he  or  she  shall  be,  in 
the  custody  of  such  gaol,  charged  with  all  the  causes  with  which  he  or  she 
is  or  shall  be  charged,  in  the  gaol  from  whence  he  or  she  shall  be  removed." 
Upon  this  statute  it  has  been  determined,  that  if  a  person  charged  in  execu- 

(A)  Carter.  212.     2  Bac.  Abr.  tit.  Escape,  C. 

(i)  2  Durnf.  &  East,  172.  {h)  §  1. 


234  OF  THE  DUTY  OF  SHERIFFS,  ETC., 

tion  in  tlie  King's  Bench,  he  turned  over  to  the  Fleet  and  escape,  either  a 
judge  of  the  King's  Bench  or  Common  Pleas  may  grant  an  escape  war- 
rant.(a)    And  after  a  negligent  escape,  the  defendant,  we  have  seen(5)  may 

bo  retaken  on  a  Sunday,  by  virtue  of  such  warrant.  But  if  one 
[  *235  ]  who  is  no  officer,  by  virtue  of  the  warrant,  seize  a  person  *escaping, 

and  bring  him  before  the  sheriiF,  he  cannot  detain  him ;  for,  being 
illegally  executed,  it  is  the  same  thing  as  if  there  had  been  no  warrant  at 
all.(c?«)  It  has  also  been  determined,  that  a  person  who  has  a  day  rule, 
cannot  be  taken  by  virtue  of  an  escape  warrant  :{hh)  and  if  a  person  be 
taken  thereon  at  eight  in  the  morning,  and  the  same  day  obtain  a  day  rule, 
pursuant  to  a  petition  which  was  not  read  in  court  till  after  eight,  yet  he 
shall  be  discharged ;  for  as  to  this  purpose,  there  shall  be  no  fraction  of  a 
day.(c) 

The  plaintiff's  remedies,  when  the  defendant  escapes,  are  first,  by  taking 
out  fresh  process  against  him ;  secondly,  by  obtaining  an  escape  warrant 
for  retaking  him,  if  the  escape  was  from  the  custody  of  the  marshal  of  the 
King's  Bench,  or  warden  of  the  fleet ;  and  thirdly,  by  action  or  attach- 
ment against  the  sheriff  or  officer,  for  an  escape:  which  remedies  may  be 
pursued,  as  well  where  the  escape  was  voluntary,  as  where  it  was  only 
negligent. {d)\^A\  But  where  the  sheriff,  having  arrested  the  defendant,  suf- 
fers him  to  go  at  large,  upon  giving  bail  for  his  appearance  at  the  return 
of  the  writ,  he  is  not  liable  to  an  action  of  escape :  for  he  was  obliged  to 
take  bail,  by  the  statute  23  Hen.  VI.  c.  9.(e)  And  even  where  he  suffers 
him  to  go  at  large  without  bail,  he  is  not,  it  seems,  liable  to  an  action, 
provided  he  have  him  at  the  return  of  the  writ.(/)  But  if  he  have  him 
not  then,  or  afterwards  suffer  him  to  go  at  large,  without  lawful  authority, 
he  is,  in  either  case,  liable  to  an  action. ((/)  And  where  an  action  is 
brought  against  the  sheriff,  after  he  has  taken  bail,  he  must  plead  the 
statute;  and  cannot  take  advantage  of  it  on  demurrer  to  the  declaration, 
or  in  arrest  of  judgment. (7i) 

(a)  8  Mod.  240.  {b)  Ante,  21B. 

(aa)  6  Mod.  154,  and  see  1  Str.  99,  100.  {bb)  8  Mod.  80. 

(c)  Id.  ibid.,  and  see  2  Bac.  Abr.  tit.  Escape,  E.  3. 

{d)  2  Bac.  Abr.  tit.  Escape,  C.  E.  3,  and  see  stat.  8  &  9  W.  III.  c.  26.  7  Moore,  552.  1 
Bing.  156,  S.  0. 

(e)  Cro.  Eliz.  624,  852.  Nov,  39,  S.  C.  1  Sid.  23.  1  Vent.  55.  3  Salk.  314,  15.  Gilb. 
C.  P.  22.     2  Wms.  Saund.  5  Ed.  61,  c.  (6.) 

(/)  2  Durnf.  &  East,  172.  2  Bos.  &  Pul.  35,  and  see  2  Wms.  Saund.  5  Ed.  61,  a.  b.  (4.) 
2  Barn.  &  Aid.  56. 

(^)Noy,  39.  1  Mod.  228,  9.  2  Mod.  178,  S.  C.  Gilb.  C.  P.  22.  2  Durnf.  &  East,  174, 
&c.  7Durnf.&  East,  109.  1  Bos.  &  Pul.  225.  9  Moore,  584.  2  Bing.  317,  S.  C.  3  Anstr. 
675,  and  see  2  Wms.  Saund.  5  Ed.  61,  a.  b.  (4.) 

{h)  Cro.  Eliz.  460,  Moor,  428,  S.  C.  1  Sid.  22,  439.  1  Vent.  85.  1  Mod.  33,  57,  S.  C. 
2  Wms.  Saund.  5  Ed.  154,  5. 

[a]  Nothing  but  the  act  of  God  or  the  publie  enemies  will  excuse  the  sheriff  for  an  escape. 
Fairchild  v.  Case,  24  Wend.  381.  Rainey  v.  Dunning,  2  Murph.  386.  Call  v.  Haggar,  8 
Mass.  423.  Patten  y.  Halsted,  Goxq,  211.  Colby  v.  Sampson,  5  lla.ss.  310.  Lowry  v.  Barney, 
2  Chip.  11.  Adams  v.  Turrcntine,  8  Ired.  147.  Mabry  v.  Id.,  Id.  201.  State  v.  Halford,  6 
Kich.  58.  But  unless  the  process  under  which  the  arrest  is  made  is  judicial  process,  the 
sheriff  is  not  guilty  of  an  escape  in  letting  the  prisoner  go  at  large.  Ellis  v.  Gee,  1  Murph. 
445.  Although  no  informality  in  the  process  will  justify  the  prisoner  in  effecting  an 
escape.  The  State  v.  3Iurphy,  3  Shep.  100.  It  is  otherwise  'if  the  process  be  void.  Neither 
will  the  insecure  state  of  the  jail  excuse  the  sheriff  for  an  escape.  Smilh  v.  Hart,  1  Brevard, 
146.  Parsons  v.  Lee,  Jefferson,  50 ;  or  even  if  there  be  no  jail.  Gurnn  v.  Hubbard,  3  Blackf. 
14.  Nor  will  the  death  of  the  prisoner  before  recapture,  although  there  has  been  a  fresh  pur- 
suit, purge  the  escape.      ^Yhicker  v.  Roberts,  10  Ired.  485. 


ON  THE  ARREST.  235 

An  action  against  the  sheriff  for  an  escape  may  it  seems  be  defeated, 
by  putting  in  bail  in  the  original  action,  of  the  term  in  which  the  vrrit  was 
returnable,  though  after  the  expiration  of  the  time  allowed  for  putting  it 
in ;  and  even  after  the  action  for  an  escape  is  brought.(/)  To  prevent  this, 
the  plaintiff  should  oppose  the  justification  of  bail  if  put  in  :  and  in  a  late 
case,(/c)  where  bail  had  been  permitted  to  justify  without  opposition,  the 
court  of  King's  Bench  set  aside  the  rule  for  the  allowance  of  bail,  on  pay- 
ment of  the  costs  of  justification.  And,  in  that  court,  bail  put  in  after  the 
term  in  which  the  writ  is  returnable,  is  not  an  answer  to  an  ac- 
tion against  *the  sheriff  for  an  escape,  brought  before  it  was  put  [  *23G  ] 
in. ((/a)  So,  in  the  Common  Pleas,  if  the  sheriff  omit  to  take  a 
bail-bond  upon  the  arrest,  and  afterwards,  upon  an  action  being  commenced 
against  him  for  an  escape,  he  causes  bail  to  be  perfected,  the  court  will 
order  the  allowance  of  bail  to  be  set  aside,  that  the  action  may  proceed. (W) 
But  the  court  of  Exchequer  would  not  set  aside  an  order  for  the  allow- 
ance of  bail,  obtained  after  an  action  commenced  against  the  sheriff  for  an 
escape,  though  no  bail  bond  had  been  taken,  nor  bail  above  put  in  in  due 
time,  where  the  defendant  had  been  rendered  on  the  day  of  the  expiration 
of  the  rule  to  bring  in  the  hodj.{ee)  And  in  an  action  against  the  sheriff, 
for  not  assigning  a  bail  bond,  that  court  would  not  grant  a  motion,  to  enter 
tlie  recognizance  of  bail  on  the  record,  as  taken  on  the  true  day,  (it  being 
always  entered  generally  as  of  the  term,)  to  enable  the  plaintiff  to  proceed 
with  his  action. (c?)  If  a  bail  bond  has  been  taken  by  the  sheriff,  thouf^h 
his  clerk,  on  inquiry  at  the  office,  deny  that  he  has  taken  one,  the  plain- 
tiff cannot  maintain  an  action  against  him  for  an  escape  :{e)  It  is  there- 
fore usual,  in  declaring  against  the  sheriff,  to  insert  three  counts  ;  First,  for 
an  escape  ;  2dly,  for  not  taking  the  defendant  when  he  had  an  opportunity ; 
and  3dly,  for  not  assigning  the  bail  bond,  on  request.  And,  in  an  action 
for  an  escape  upon  mesne  process,  it  is  enough,  Avithout  producing  the  war- 
rant, or  giving  direct  evidence  of  the  arrest  or  escape,  to  prove  the  sheriff's 
return  of  cejn  corpus^  and  to  show  that  the  party  did  not  put  in  bail,  and 
was  not  in  the  sheriff's  custody  at  the  return  of  the  writ.(/) 

"When  the  defendant  is  rescued  upon  mesne  process,  as  he  is  going  to 
prison,  the  sheriff  may  return  the  rescue  ',{g)  but  not,  where  the  defendant 
is  rescued  after  he  is  put  in  prison,  except  by  the  king's  enemies. (/<)  And  it 
seems  that  a  return  by  the  sheriff  to  a  bill  of  Middlesex,  stating  that  he  took 
and  detained  the  defendant,  until  he  rescued  himself,  and  that  he  was  not 
afterwards  found,  &c.  is  sufficient,  without  naming  the  rescuers,  or  stating 

(t)  1  Esp.Rep.  87.  2  Bos.  &  Pul.  35,  246.  1  Taunt.  25.  1  Chit.  Rep.  575,  (a).  5  Barn. 
k  Cres.  244. 

{k)  Bomnquct  v.  Simpson,  E.  42  Geo.  III.  K.  B. 

(aa)  4  Maulo  &  Sel.  397  ;  and  see  2  Chit.  Rep.  93. 

(bh)  1  Taunt.  119 ;  and  see  id.  23.     6  Taunt.  167.     1  Marsh.  520,  S.  C. 

(cc)  1  Price,  103  ;  and  see  5  Barn.  &  Cres.  244. 

(d)  3  Price,  36  ;  but  see  9  Price,  406. 

(f)  5  Taunt.  325. 

(  f)  3  Canipb.  397.  And  for  the  evidence  necessary  to  charge  the  defendant  with  the  act 
of  liis  bailiff,  see  7  Durnf.  &  East,  113.  1  Canipb.  389.  Holt,  Ni.  Pri.  217.  1  Stark.  Ni.  Pri. 
413.  2  Stark.  Ni.  Pri.  189,  202,  314.  7  Taunt.  8.  5  Moore,  183.  3  Brod.  &  Bing.  26,  S. 
C.  Holt  Ni.  Pri.  537.  5  Moore,  184,  (b).  3  Brod.  &  Bing.  27,  (a),  S.  C.  6  .Moore,  120.  1 
Car.  &  P.  7,  (a).     3  Bing.  164,  492. 

iff)  Cro.  Jac.  419.  3  Bulst.  198.  1  Rol.  Rep.  383,  440,  S.  C.  3  Lev.  46.  1  Str.  435. 
Giib.  C.  P.  23 ;  but  see  Cro.  Eliz.  868.     Moor,  852,  contra. 

(//)  Cro.  Jac.  419.     1  Rol.  Rep.  441.     1  Str.  435.     5  Bur.  2814. 


ooQ  OF  APPEARANCE  AND  BAIL. 

them  to  be  people  of  the  county ;(«)  but  the  return  not  stating  the  arrest  to 
have  been  made  in  the  proper  county,  was  holden  to  be  bad.(i)  And  if  the 
defendant  escape,  owing  to  the  negligence  of  the  officer,  this  will  not  justify 

the  return  of  a  rescue. (A;)  Upon  the  sheriff's  return  of  a  rescue,  the 
[  *237  ]  plaintiff  has  a  triple  remedy  against  the  rescuers;  by  *attachment, 

action  on  the  case,  or  indictment. («)  The  return  of  a  rescue  is  of 
itself  a  conviction  ;(6)  and  the  courts  will  grant  an  attachment  upon  it  in 
the  first  instance, (c)  which  should  be  made  returnable  on  a  general  return, 
though  the  original  process  was  at  a  da>j  certain. {dd)  But,  without  the  she- 
riff's  return,  the  courts  will  not  grant  an  attachment  upon  a  mere  affidavit  of 
the  fact.(cc)  It  was  formerly  the  constant  course,  upon  the  return  of  a  res- 
cue, to  set  a  certain  fine  of  four  nobles  on  each  offender  :{ff)  but  of  late  years, 
the  courts  have  fined  according  to  their  discretion,  upon  considering  the  cir- 
cumstances of  the  case. ((/(/)  And  as  the  sheriff 's  return  of  a  rescue  is  not  tra- 
versable, the  court  of  King's  Bench  will  proceed  to  punish  the  rescuers, 
without  going  through  the  ordinary  course  of  examining  them  upon  interro- 
gatories. (A/i)  But  where  a  defendant  in  that  court,  was  brought  up  on  an 
attachment,  for  rescuing  a  person  arrested  on  a  warrant  for  obstructing 
excise  officers,  it  was  said  to  be  the  invariable  practice  of  the  court,  in 
such  a  case,  to  put  the  defendant  to  answer  interrogatories,  though  he  did 
not  deny  the  charge  in  the  affidavits,  unless  the  prosecutor  waived  putting 
them.(^) 


[*238]  *CHAPTER    XII. 

Of  Appearance  and  Bail  to  the  Action. 

HEPtETOFORE,  when  a  writ  issued  out  of  the  King's  Bench,  it  was  entered 
upon  a  roll ;  so  that  though  the  officer  had  not  returned  the  writ,  yet  the 
defendant  might  have  appeared  at  the  day  given  by  the  roll ;  and  that 
either  to  save  himself  from  corporal  pain  by  imprisonment,  or  to  prevent 
the  loss  of  issues,  or  to  save  his  freehold  or  inheritance. («a)  And  so  it 
was  in  the  Common  Pleas ;  where  they  entered  the  writ  upon  a  roll,  by 
way  of  recital,  viz.  Dominus  rex  misit  breve  swum  clausum,  in  hseo 
verba,  kc.{aa) 

Appearance  is  the  first  act  of  the  defendant  in  court  ;[bb)  and  differs  from 
putting  in  bail,  which  is  the  act  of  the  court  itself, (ec)  as  is  evident  from 

{i)  1  Barn.  &  Aid.  190.    Holt,  Ni.  Pri.  539,  n.  S.  C. 

(k)  Holt,  Ni.  Pri.  537.  5  Moore,  184,  [b).  3  Brod.  &  Bing.  27,  (a),  S.  C. ;  and  see  2  Stark. 
Ni.  Pri.  189. 

(a)  Com.  Dig.  tit.  Eescous.  D.  An  indictment  for  preventing  an  arrest,  on  process  issuing 
out  of  an  inferior  court,  must  state  that  the  process  was  directed  to  the  officer  of  the  court. 
5  East,  304. 

{b)  Cas. /em;?.  Hard.  112. 

(c)  2  Salk.  586.     Say.  Rep.  121.     4  Bur.  2129.  (rW)  1  Str.  624. 

(ee)  2  Salk.  586.     6  Mod.  141.     1  Str.  531 ;  and  see  1  Ken.  138.     Say.  Rep.  253. 

if]  T.  Jon.  198.-   2  Salk.  586.  (fft/)  1  Str.  642. 

(M)  4  Bur.  2129;  but  see  2  Salk.  586.  (i)  5  Durnf.  &  East,  362. 

(aa)  Co.  Lit.  135,  a.     1  Salk.  64.  (hb)  Com.  Dig.  tit.  Pleader,  B.  1. 

\cc)  1  Salk.  8. 


OF  APPEARANCE  AND  BAIL.  238 

tlie  language  of  the  bail-piece  in  the  King's  Bench,  wherein  tlie  defendant 
is  stated  to  be  delivered  to  bail,((Z)  &c. :  and  it  is  either  voluntary  or  com- 
2ndsive.\_s'C\  A  voluntary  appearance  is  of  no  eft'ect,  in  the  King's  Bench, 
unless  the  plaintiff's  attorney,  'wiih.m  fourteen  days  after  such  appearance, 
sue  out  a  writ  of  latitat,  or  bill  of  Middlesex,  where  the  defen<lant  abides 
in  that  county.(c)  But  this  rule  cannot  be  taken  advantage  of  by  any  but 
the  defendant,  unless  some  particular  fraud  be  alleged. (/)  In  the  Com- 
mon Pleas  it  is  a  rule,  that  no  bail  be  put  in  for  any  party  against  whom 
no  writ  or  process  is  sued  out,  without  leave  of  the  court. (//)  And  no 
bail  is  required  in  that  court,  but  a  common  appearance  only,  if  the 
defendant  appear  upon  a  summons,  attachment  or  distress,  or  by  superse- 
deas quia  iinprovidc,  &c.(/t) 

In  actions  by  oriyinal,  in  the  King's  Bench,  the  appearance  is  entered 
with  the  filacer  of  the  county  where  the  action  is  brouglit ;(«/)  and  upon  a 
summons,  attachment  or  distringas,  it  should  be  entered  on  or  before  the 
quarto  die  post  of  the  return  of  the  writ.(A;)  So,  in  the  Common  Pleas, 
the  appearance  by  original  is  entered  with  the  proper  filacer  :{l)  and  the 
defendant  in  that  court,  must  appear  upon  a  summons,  attachment  or  dis- 
tringas, within  four  days  after  the  return,  which  are  reckoned  inclusive 
both  of  the  return  day  and  quarto  die  p}ost.{m) 

*The  appearance  of  the  defendant  is  triable  by  the  record  :{aa)  [  *239  ] 
and  in  the  Common  Pleas  it  is  a  rule,(5)  that  "  all  appearances 
for  defendants,  upon  writs  of  capias,  alias  and  pluries,  issuing  out  of  that 
court,  ought  to  be  entered  of  record,  or  otherwise  they  are  not  warranted 
by  the  course  of  the  court ;  neither  can  the  defendant,  if  he  have  been 
arrested,  plead  comperuit  ad  diem,  in  discharge  of  the  sherifl["'s  bond  taken 
for  his  appearance."  By  that  rule,  the  appearance  is  required  to  be 
entered  with  the  proper  filacers ;  but  there  does  not  seem  to  be  any 
apjyearance  roll,  or  entry  of  the  defendant's  appearance,  except  the  state- 
ment of  it  on  the  recognizance  roll,  or  on  the  imparlance,  pica,  or  issue  roll, 
and  the  entries  in  the  filacer's  books ;  which  entries  however  cannot  be 
considered  as  records. 

Bail  to  the  action  are  common  or  special\jf\  In  the  King's  Bench  by 
hill,  common  bail  must  be  filed  in  all  cases  where  special  bail  is  not  neces- 
sary, or  has  been  dispensed  with  by  the  court ;  and  they  are  particularly 

(<f)  1  Atk.  239. 

(e)  R.  T.  4  W.  &  M.  reg.  1  K.  B.  (/")  1  Maule  &  Sel.  408,  (a). 

[g)  R.  H.  14  Jac.  l.reg.  2,  §  4.  (h)  R.  M.  1G54,  ^  12,  C.  P. 

(h)  Trye,  in  pref.  and  see  Append.  Chap.  XII.  ?  1,  2.  (/r)  Trye,  67,  8. 

(l)  R.  M.  14  Jac.  I.  reg.  1,  2.     R.  M.  1654,  g  13.     R.  E.  24  Car.  II.  rcg.  2,  U.  P. 

(m)  1  H.  Blac.  9. 

(aa)  Cro.  Eliz.  466,  1.  (i)  R.  M.  14  Jac.  I.  reg.  2,  C.  P. 

[a]  Entry  of  appearance,  or  plea  to  the  merits,  cures  defective  service.  Smith  v.  Itobin.wn, 
IS.Metcf.  165.  Breiver  v.  Sibley,  Id.  175.  Barker  v.  Norton,  5  Shep.  416.  Harrison  v.  The 
Bank,  2  Sm.  &  Marsh.  307.  liannj  v.  M'Rar,  14  Geo.  589.  Amcr  v.  Wc.oton,  4  Shep.  266  ; 
or  irregularity  in  seal  or  signature,  Lowell  v.  Labine,  15  New  Hainp.  29.  Garland  v.  Bretton, 
12  111.  232  ;  or  in  return  day.  Graves  v.  Cole,  2  (jlreene,  Iowa,  467.  An  appearance  by  a  defen- 
dant after  an  amended  declaration  has  been  filed,  and  consentinjif  to  a  continuance  and  enter- 
ing into  an  agreement  of  record  recognizing  the  amended  declaration,  is  a  waiver  of  the  irre- 
gularity in  filing  such  amended  declaration,  after  the  time  allowed  by  the  court  for  filing  it. 
BriiihliU  V.  Duncan,  5  Eng.  252. 

[li]  A  liail  bond  to  the  sheriff  must  be  conditioned  for  the  appear.ance  of  the  party  only, 
otherwise  it  will  be  void.  Blanding  v.  Rodgers,  2  Brevard,  294.  Lane  v.  Tnwnycud,  Ware, 
286.  llnicland  v.  Seymour,  2  Metcf.  590.  Stewart  v.  M-Clurc,  1  Brevard,  407.  Embree  v. 
Norris,  2  Ala.  271. 


239 


OF  COMMON  BAIL. 


required  in  ejectment,  for  the  casual  ejector,(6')  and  to  authorize  judgments 
by  warrant  of  attorney,  default,  or  non  sum  informatus.{d)  These  bail 
are  merely  noniinal.{e)  In  the  Common  Pleas,  there  is  no  common  bail ; 
but  in  that  court,  and  also  in  the  King's  Bench  by  original,  a  common 
appearance  is  entered  for  the  defendant,  in  cases  where  special  bail  is  not 
necessary. 

Before  the  making  of  the  statute  12  Geo.  I.  c.  29,  the  defendant  being 
always  arrested  upon  process  against  his  person,  it  was  discretionary  in 
the  courts  to  discharge  him  upon  common  bail,  or  a  common  appearance, 
or  hold  him  to  special  bail.(/)  Anciently,  if  the  cause  of  action  were 
for  a  sum  under  ttventy  pounds,  or  for  uncertain  damages,(^)  the  courts 
let  the  defendant  out  of  custody  upon  common  bail ;  but  if  it  Avere  for  a 
sum  certain  above  twenty  pounds,  they  made  him  find  special  bail.(/j) 
Afterwards,  the  sum  was  reduced  to  ten  pounds  :(i)  And  now,  by  the  sta- 
tute 7  &  8  Geo.  IV.  c.  ll,{k)  "no  person  shall  be  held  to  special  bail, 
upon  any  process  issuing  out  of  any  court,  where  the  cause  of  action  shall 
not  have  originally  amounted  to  the  sum  of  tweiity  pounds  or  upwards, 
over  and  above  and  exclusive  of  any  costs,  charges  and  expenses,  that 
may  have  been  incurred,  recovered,  or  become  chargeable,  in  or  about  the 
suing  for  or  recovering  the  same,  or  any  part  thereof."  So  that  special 
or  common  bail  is  no  longer  discretionary  in  the  court,  but  is  governed  by 
the  arrest ;  it  being  a  general  rule,  that  whenever  the  defendant 
[  *240  ]  may  be  *arrested,  he  may  be  holden  to  special  bail ;  and  e  con- 
verso,  that  whenever  the  defendant  cannot  be  arrested,  common 
bail  is  sujfficient. 

Common  bail  may  be  filed,  or  a  common  appearance  entered  by  the  de- 
fendant or  his  attorney,  or  by  the  plaintiff  according  to  the  statute  ;(a)  and 
it  may  be  filed  or  entered  by  the  defendant  originally,  or  in  consequence  of 
a  rule  of  court,(?>)  or  judge's  order,  for  discharging  him  out  of  custody,  on 
filing  or  entering  it, [a]  In  the  King's  Bench,  where  the  defendant  has  been 
served  with  the  copy  of  a  bill  of  Middlesex,  or  other  process  thereon,  he 
should  file  common  bail  at  the  return  of  it,  or  within  eight  days  after  such 
return,(cc)  which  are  reckoned  exclusively  ;  and  Sunday  is  not  accounted  as 

(c)  R.  T.  14  Car.  II.  reg.  1.     R.  M.  33  Car.  II.  K.  B. 

[d)  R.  H.  1  W.  &  M.     R.  T.  4  W.  &  M.  reg.  II.  K.  B. 

\e)  For  the  origin  o{  coinvwii  bail,  see  Gilb.  K.  B.  309;  for  the  difference  between  common 
and  special  bail,  see  Gilb.  C.  P.  34,  5.  Cromp.  Introd.  3  Ed.  Ix. ;  and  for  the  manner  in  which 
the  courts  formerly  exercised  their  discretion  of  allowing  common,  or  requiring  special  bail, 
see  Gilb.  C.  P.  35,  6.     Cromp.  Introd.  3  Ed.  Ixxxi. 

(/)  R.  M.  1654,  I  9,  K.  B.     Gilb.  K.  B.  309.     2  Keb.  101. 

[g)  Gilb.  C.  P.  36,  1. 

[h)  Id.  35.     R.  T.  24  Eliz.  ^  1.     R.  M.  1654,  g  12,  C.  P. 

{i)  Gilb.  C.  P.  36  ;  and  see  the  statutes  12  Geo.  I.  c.  29.     19  Geo.  III.  c.  YO,  ?  1,  2. 

[k]  ll\  and  see  stat.  51  Geo.  III.  c  124,  §  1 ;  continued  by  57  Geo.  III.  c.  loi. 

{a)  12  Geo.  I.  c.  29.  {b)  1  Chit.  Rep.  282. 

[cc)  Stat.  5  Geo.  II.  27,  §  1.  This  is  the  same  time  as  was  allowed  to  file  common  bail  upon 
an  arrest,  before  the  statute  1 2  Geo.  I.  c.  29.  And  if  the  defendant  did  not  file  it  within  that 
time,  he  was  liable  to  the  penalty  of  ^ye  pounds,  to  be  paid  to  the  plaintiff.  Stat.  5  W.  &  M. 
c.  21,^3,  9  &  10  W.  III.  c.  25,  g  33.  5  Mod.  392.  iCl.lnst.bl.  The  rule  for  payment  of 
this  penalty  was  absolute  in  the  first  instance  ;  the  words  of  the  statute,  being  that  the  court 
shall  immediatelg  award  judgment,  whereupon  the  plaintiff  may  take  out  execution.  2  Str. 
737.     Gilb.  K.  B.  369. 

[a]  See  Laney.  Cook,  8  Johns.  359.  Bgrnev.  Morris,  2  Cow.  472.  Pardee  v.  Read,  4  Cow. 
51.  And  the  court  will  permit  the  filing  of  common  bail  on  motion  nunc  pro  time,  where 
judgment  has  been  inadvertently  taken  without  it.  Phelps  v.  Bronson,  4  Cow.  61.  Colden 
V.  Knickerbocker,  2  Cow.  31. 


OR  APPEATwYXCE.  240 

one  of  them,  if  it  happen  to  be  the  last. (J)  These  bail  are  entered  on  a 
piece  of  parchment  called  a  bail-piece,(6')  which  is  filed  with  the  clerk  of  the 
common  bails  ;  who  is  required  to  mark  the  bail-pieces  numerically^  as  the}' 
are  received. (/)  The  defendant,  having  been  served  with  a  copy  of  a 
capias,  or  other  process  by  ori(/inal,  in  the  King's  Bench,  should  enter  a 
common  appearance  with  the //Vat'tv  of  tiie  county  where  the  action  is  laid, 
within  eight  days  after  the  appearance  day,  or  quarto  die  2J08t  of  the  return 
of  the  process. (^)  In  the  Common  Pleas,  the  eight  days  are  reckoned  from 
the  return  day,  and  not  from  the  quarto  die  post  of  the  return  of  the  writ  ;{h) 
and  the  appearance  is  entered  with  the  filacer  of  the  county  to  which  the 
writ  is  directed,  upon  a  jjrwcipe  or  note  of  appearance  being  made  out  and 
delivered  to  him,  on  unstamped  paper,  which  he  enters  in  a  book  kept  for 
that  purpose. (<")  In  an  action  against  husband  and  wife,  when  the  husband 
alone  has  been  arrested,  special  bail  may  justify  for  him  only,  on  his  filing 
common  bail  for  his  wife  ;(/c)  but  when  the  husband  alone  has  been  served 
with  process,  he  ought  regularly  to  file  common  bail,  or  enter  an  appearance, 
for  himself  and  his  wife.(/)  Yet,  where  he  entered  an  appearance  for  him- 
self only  the  court  of  Common  Pleas  held  it  to  be  so  far  regular,  as  that  the- 
plaintiff  could  notsign  judgment,  without  demanding  a  plea,  (m)  And  where., 
in  a  similar  case,  an  appearance  was  entered  for  the  husband  only,  by  his 
attorney,  who  expressly  disclaimed  any  interference  for  the  wife,  and  the 
latter  not  appearing,  an  appearance  was  entered  for  her  by  the  plaintiff' 
according  to  the  statute,  upon  which  the  plaintiff  declared 
against  the  husband  and  wife  jointly,  and  the  *former  pleaded  [  *241  ] 
for  himself  only ;  the  court  of  Exchequer  held,  that  an  inter- 
locutory judgment  signed  against  both,  for  want  of  a  joint  plea,  was 
regular, (a) 

When  an  attorney  of  either  court  has  accepted  a  warrant,  or  subscribed  a 
process,  declaration,  or  warrant  to  appear,  the  rule  in  the  King's  Bench  is. 
that  "he  shall  be  compelled  to  cause  an  appearance,  or  liable  to  an  attach- 
ment, or  put  out  of  the  roll,  as  the  case  requires ;  and  the  party  is  not  to  be 
received  to  countermand  such  appearance  after  his  retainer."(i)  And  in 
the  Common  Pleas  it  is  a  rule,  that "  every  attorney  accepting  or  subscribing 
any  warrant  to  appear  for  any  defendant,  to  any  writ  issuing  out  of  that 
court,  shall  within  four  days  after  the  appearance  day  to  the  return  of 
every  such  Avrit  in  London  or  3Iiddlescx,  and  within  eight  days  after  the 
appearance  day  in  any  other  county,  enter  the  appearance  of  such  defend- 
ant with  the  proper  officer;  and  if  he  do  not,  he  shall  be  liable  to  an 
attachment,  and  not  discharged  therefrom  till  he  hath  paid  full  costs  to 
the  plaintiff;  and  the  defendant,  when  he  appears,  shall  be  compelled  to 
plead  as  of  the  time  when  he  should  have  pleaded,  if  his  appearance  had 
been  duly  entered."(c)  The  usual  mode  of  proceeding  against  an  attorney, 
for  not  filing  common  bail,  or  entering  an  appearance,  pursuant  to  his 

(d)  1  Bur.  5G.  (c)  Append.  Chap.  XII.  ?  3. 

(/)  R.  E.  30  Geo.  III.  K.  B.     3  Dnrnf.  &  East,  6G0. 

(^)Imp.  K.  B.  lOEd.  527.     2  Chit.  Rep.  35.    3  Barn.  &  Crcs.  110.    4  Dowl.  &R3I.  713,  S.  C. 

(h)  Imp.  C.  P.  7  Ed.  IGl,  2.     Fr.  Reg.  32.     Barnes,  245,6. 

(i)  Imp.  C.  P.  7  Ed.  IGl.  (A-)  1  Chit.  Rep.  75. 

(/)  Barnes,  412.  (?;0  1  II.  Bine.  235;  and  see  1  Salic.  1 14. 

(a)  Jiu.i.ie/l  V.  Buchanan  ^-  tcife,  Man.  Ex.  Addend.  625,  &c.     G  Price,  139,  S.  C. 

(b)  R.  M.  1G54, 1  10,  K.  i3.  R.  M.  1G54,  g  13,  C.  P. ;  and  see  LoITt,  192,  3,  hy  which  it  appears 
thai  the  undertalcing  must  be  signed:  but  see  2  Chit.  Rep.  36. 

(c)  R.  H.  GGeo.I.rci?.  2,  C.  P. 

Vol.  I.— 1G 


241 


OF  COMMON  BAIL, 


undcvtakin"',  is  by  attachment  ;{d)  and  if  an  attorney  undertake  to  appear, 
the  courts  will  oblige  him  to  do  it  in  a  proper  manner :  therefore,  if  he 
undertake  to  appear  for  an  infant,  he  must  appear  by  guardian.{e)  And 
thouirh  he  may  have  been  imposed  upon  by  the  sheriff 's  officer,  yet  they 
will  oblige  him  to  fulfil  his  undertaking. (/)  But  a  general  undertaking 
by  an  attorney  to  appear  to  process,  does  not  oblige  him  to  put  in  special 
bail  to  bailable  process.(//)  And  where  the  attorney  for  the  defendants, 
on  their  being  sued  by  the  plaintiff,  undertook  by  letter,  to  procure  their 
signature  to  a  cognovit  for  payment  of  the  debt  and  costs,  which  he  failed 
to  do,  but  the  plaintiff  afterwards  said  that  he  would  proceed  with  the 
action ;  the  court  of  Common  Pleas  held,  that  this  was  virtually  a  waiver 
of  the  attorney's  undertaking,  and  that  he  could  not  be  called  on  by  the 
court  to  perform  it.  (A) 

Before  the  statute  12  Geo.  I.  c.  29,  common  bail  could  only  have  been 
filed,  or  a  common  appearance  entered,  by  the  defendant  or  his  attorney. 
But  now,  by  that  statute,(^)  as  altered  by  the  5  Geo.  11.  c.  27,  "  if  the 
defendant,  having  been  served  with  process,  shall  not  appear  at  the  return 
thereof,  or  within  eight  days  after  such  return,  the  plaintiff,  upon  affidavit 

of  the  service  of  such  process,(^)  made  before  a  judge,  or  com- 
[  ^42  ]    missioner  of  the  court  for  taking  affidavits,  or  before  the  proper 

officer  *for  entering  common  appearances,  or  his  deputy,  (and 
which  affidavit  shall  be  filed  gratis,)  may  enter  a  common  appearance,  or 
file  common  bail  for  the  defendant,  and  proceed  thereon,  as  if  such  defend- 
ant had  entered  his  appearance,  or  filed  common  bail."  The  affidavit 
required  by  these  statutes  cannot  be  dispensed  with  ;(a)  nor  can  it  be 
taken  in  the  King's  Bench,  before  a  commissioner  who  is  concerned  as 
attorney  for  the  plaintiff;  but  in  the  Common  Pleas  it  is  otherwise. (5) 
And  common  bail  cannot  be  filed,  or  common  appearance  entered,  by  the 
plaintiff",  till  the  nirith  day  after  the  return  of  the  writ;  the  defendant 
having  all  the  eighth  to  file  or  enter  it. (cc)  Common  bail  however  should 
be  filed,  or  a  common  appearance  entered,  by  the  plaintiff  for  the  defend- 
ant, of  the  term  in  which  the  writ  is  returnable  :((^c^)  but  it  may  be  filed 
or  entered  as  of  that  terra,  in  the  term  next  after  the  return  of  the 
writ,(ee)  or  before  the  quarto  die  post  of  the  first  return  of  the  following 
term ;  it  being  holden  that  till  then,  common  bail  may  be  filed,  or  an 
appearance  entered,  as  of  the  preceding  term.(^)  In  practice  it  is  usual 
for  the  plaintiff  to  file  common  bail,  or  enter  a  common  appearance,  for  the 
defendant,  according  to  the  statute  at  any  time  before  judgment  is  signed ; 
though  if  filed  or  entered  in  a  subsequent  term,  it  must  be  filed  or  entered 
as  of  the  term  in  which  the  writ  was  returnable.  And  though  judgment 
has  been  irregularly  signed,  without  filing  common  bail  for  the  defendant 
according  to  the  statute,  till  after  the  term  succeeding  that  in  which  the 
writ  was  returnable,  and  after  the  judgment  itself  has  been  entered  up, 

(d)  6  Mod.  42,  86.     4  Dowl.  &  Ryl.  719.  (e)  1  Str.  114,  445. 

(  f)  Id.  G93;  and  seel  Chit.  Rep.  129,  (a).     4  Dowl.  &  Ryl.  719. 
{ff)  2  Chit.  Rep.  415.  (h)  8  Moore,  208. 

(t)  ?  1.  (k)  Append.  Chap.  XTI.  ?  4. 

(a)  2  Moore,  462.     8  Taunt.  410,  S.  C.  (6)  R.E.  13  Geo.  ILrcy.  1,  C.  P. 

(cc)Imp.  K.  B.  lOEd.  167.     Pr.  Reg.  32.     Imp.  C.  P.  7  Ed.  163. 

(dd)  Cas.  temp.  Hardw.  138.     Ilolmcsx.  White,  Imp.  K.  B.  10  Ed.  165,  6.     6  East,  314.     2 
Chit.  Rep.  37.     3  Barn.  &  Cres.  555.     5  Dowl.  &  Ryl.  352,  S.  C.     9  Id.  18. 
[ce)  2  Diirnf.  &  East,  719,  20.     7  Durnf.  &  East,  206. 
[jf)  5  Durnf.  &  East,  65  ;  and  see  6  East,  314.     2  Chit.  Rep.  37. 


OR  APPEARANCE.  242 

yet  the  defendant,  havinf^  <:^iven  a  eof/novif,  is  estopped  from  objecting  to 
the  irregularity,  if  the  plaiiitifF  has  tiled  common  bail  nimc  pro  tunc,  be- 
fore the  time  of  making  the  objection. (//)  If  the  defendant  be  sued  by  a 
wrong  name,  and  do  not  appear,  the  plaintifl'  cannot  rectify  the  mistake, 
by  appearing  for  him  in  his  right  name,  according  to  the  statute  :{h)  nor 
can  he  appear  for  him  in  the  name  by  which  he  is  sued,  and  afterwards 
declare  against  him  in  his  right  name.(/)  But,  in  the  Common  Pleas,  if 
the  writ  and  declaration  be  against  the  defendant  in  his  right  name,  an 
appearance  entered  for  him  by  tbe  plaintiff  according  to  the  statute,  in  a 
wrong  name,  may  be  amended. (/c)  Where  the  plaintiff,  having  sued  out  a 
writ  against /o?<r  defendants,  for  separate  causes  of  action,  and  tiled  sep- 
arate declarations  against  three  of  them  conditionally,  and  given  three 
separate  rules  to  plead,  afterwards  entered  a  common  appearance,  accord- 
ing to  the  statute,  for  all  the  tliree  defendants,  and  signed  three  separate 
interlocutor  yjudgments  for  want  of  a  plea,  the  court  of  King's 
Bench  held  Vhis  to  be  irregular:  For,  by  declaring  *separately  [  *243  ] 
against  the  three  defendants,  the  phiintiff  had  made  there  sepa- 
rate causes,  and  had  thereby  elected  to  proceed  separately;  and  by  the 
practice  of  the  court,  he  ought  to  have  entered  a  separate  appearance  for 
each  of  them. (a) 

For  preventing  inconveniences  which  happened  to  plaintiffs,  by  the  de- 
fendant's omitting  to  file  common  bail,  according  to  the  ancient  usage  and 
course  of  the  court,  there  is  an  old  rule  in  the  King's  Bench,  that  "  all 
clerks,  &c.  do  within  ten  days  after  the  end  of  every  term,  deliver  to  the 
secondary  a  note  of  all  such  appearances  as  have  been  made  unto  them  the 
term  before,  and  by  whom  they  were  made,  so  that  the  person  appointed 
to  enter  the  bails  may  see  whether  they  are  filed  for  every  such  appear- 
ance or  not. "(6)  And  for  the  better  distinguishing  by  whom  common  bail 
shall  have  been  filed,  it  is  ordered,  that  "  in  all  cases  where  common  bail 
shall  be  filed  by  the  plaintiff  for  the  defendant,  by  virtue  of  the  act,  these 
words  shall  be  written  on  the  bail-piece,  viz.  '•filed  according  to  the  statute,' 
or  words  to  the  like  effect."(t')  And  where  the  plaintiff'  files  common  bail 
for  the  defendant,  on  any  day  between  the  second  and  sixth  of  November, 
and  he  is  in  other  respects  entitled  to  sign  judgment,  it  is  signed  as  on  the 
day  preceding  the  essoin  day  of  dlichaelmas  term,(cZ) 

It  should  also  be  remembered,  that  by  the  statute  45  Geo.  III.  c.  124, 
§  3,  a  common  appearance  may  be  entered  by  the  plaintiff,  in  actions 
against  members  of  the  house  of  commons,  if  the  defendants  do  not  appear 
at  the  return  of  the  summons,  or  within  eight  days  after  such  return. (c) 
And  by  the  annual  mutiny  and  marine  acts,(/)  a  common  appearane  may 
be  entered  by  the  plaintiff,  in  actions  against  volunteer  soldiers,  or  marines. 
Also,  by  the  statutes  48  Geo.  III.  c.  4G,  §  2,  &  7  &  8  Geo.  IV.  c.  71,  §  2, 
the  plaintiff  is  authorized  to  enter  a  common  appearance,  or  file  common 
bail,  for  the  defendant,  after  money  has  been  deposited  in  the  sheriff's 

(^f)  7  Durnf.  &  East,  206. 

{h)  3  Duruf.  &  East,  611,     2  New  Rep.  C.  P.  132.     11  East,  225,  accord.     1  Bos.  &  Piil. 
105,  contra. 

(j)  10  East,  328.     11  East,  225  ;  and  see  3  Maule  k  Sel.  450.  {!:)  3  Wils.  40. 

(a)  5  Barn.  &  Aid.  802.     1  Dowl.  &  Ryl.  545,  S.  C. 
(6)R.  E.  \Qbl,rcg.  2  K.  B. 

(c)  R.  M.  10  Geo.  II.  r<><7.  1,  K.  B.     2  Str.  1027.     Cas.  /eni;>.  Hardw.  207,  S.  C. 

(d)  5  Durnf.  &  East,  65  ;  and  !<ee  6  East,  314.  (e)  Ante,  120,  21. 
(/)  7  &  8  Geo.  IV.  c.  4,  I  130,  c.  5,  ^  71  ;  nnd  see  &  Geo.  IV.  c.  3,  g  71  ;  and  see  4,  I  130. 


243 


OF  SPECIAL  BAIL. 


han(ls,(^)  or  paid  into  couvt,{Jt)  on  those  statutes,  in  case  the  defendant 
shall  not  duly  put  in  and  perfect  bail  in  the  action.  And,  by  the  statutes 
51  Geo.  III.  c.  124,  §  2,  &  7  cSt  8  Geo  IV.  c.  71,  §  5,  if  the  defendant,  on 
being  personally  sei'ved  with  the  summons  or  attachment  by  original,  do 
not  appear  at  the  return  of  such  writ,  or  of  the  distringas,  as  the  case  may 
be,  or  within  eight  days  after  the  return  thereof,  the  plaintiff",  upon  affida- 
vit being  made  and  filed  in  the  proper  court,  of  the  personal  service  of 
such  summons  or  attachment,  or  of  the  due  execution  of  such  distringas, 
&c.  may  enter  a  common  appearance  for  the  defendant,  and  proceed  there- 
on, as  if  he  had  himself  entered  his  appearance. (z) 


[  *244  ]  *When  the  defendant  has  been  arrested,  and  discharged  out  of 
custody,  upon  giving  bail  to  the  sheriff"  for  his  appearance  at  the 
return  of  the  writ,  or  upon  depositing  with  the  sheriff"  the  sum  for  which  he 
was  arrested,  together  with  10/.  in  addition  for  costs,  he  should  regularly 
appear,  if  not  surrendered  to  and  in  custody  of  the  sheriff",(a)  and  put  in  and 
perfect  special  bail  to  the  action,  or  bail  above :  so  called,  in  contradistinc- 
tion to  sheriff" 's  bail,  or  bail  beloio.  Or,  instead  of  putting  in  and  perfect- 
ing special  bail,  the  defendant  may,  under  the  statute  7  &  8  Geo.  IV.  c. , 
71,  deposit  and  pay  into  court  the  sum  indorsed  upon  the  writ,  together 
with  an  additional  sum,  as  a  security  for  costs,  to  abide  the  event  of  the 
suit.  By  the  above  statute, (^)  reciting  that  by  an  act  passed  in  the  43d 
year  of  the  reign  of  his  late  majesty,(c)  persons  arrested  upon  mesne  pro- 
cess were  enabled,  in  lieu  of  giving  bail  to  the  sheriff,  to  deposit  in  his 
hands  the  sum  indorsed  upon  the  writ,  together  with  teii  pounds  in  addi- 
tion, to  answer  the  costs  which  might  accrue  up  to  the  time  of  the  return 
of  the  writ,  and  also  so  much  further  sum,  if  any,  as  should  have  been 
paid  for  the  king's  fine  upon  any  original  writ,  and  should  thereupon  be 
discharged  from  such  arrest;  and  that  it  was  expedient  to  extend  the  pro- 
visions of  the  said  act,  and  to  enable  persons  who  have  been  arrested,  to 
deposit  or  pay  into  the  court  in  which  the  writ  shall  be  returnable,  the 
sum  indorsed  upon  the  writ,  together  with  an  additional  sum  as  a  security 
for  costs,  to  abide  the  event  of  the  suit,  instead  of  putting  in  and  perfect- 
ing bail  in  the  said  action,  it  was  enacted,  that  "in  all  cases  in  which 
any  defendant  shall  have  been  discharged  from  arrest,  upon  making  such 
deposit  as  was  required  by  the  said  recited  act,  and  the  sum  so  deposited 
shall  have  been  paid  into  court,  it  shall  be  lawful  for  such  defendant,  in- 
stead of  putting  in  and  perfecting  special  bail  in  the  action,  according  to 
the  course  and  practice  of  the  court,  to  allow  the  sum  so  deposited  with 
the  sheriff",  and  by  him  paid  into  court  as  aforesaid,  together  with  the  addi- 
tional sum  of  ten  pounds,  to  be  paid  into  court  by  such  defendant,  as  a  fur- 
ther security  for  the  costs  of  the  action,  to  remain  in  the  court,  to  abide  the 
event  of  the  suit:  And  in  all  cases  where  any  defendant  shall  have  been  ar- 
rested and  given  bail  to  the  sheriff",  or  shall  have  been  arrested  and  remain  in 
custody,  it  shall  be  lawful  for  such  last  mentioned  defendant,  instead  of  put- 
ting in  and  perfecting  special  bail,  to  deposit  and  pay  into  the  said  court,  the 
sum  indorsed  on  the  writ,  together  with  the  amount  of  the  king's  fine,  if  any, 

{g)  Ante,  22%.  {h)  Post,  2U.  (i)  Ante,  lU. 

(a)  6  Durnf.  &  East,  753.     1  Durnf.  &  East,  122,     Ante,  226,  &c.  (6)  ^  2. 

(c)  43  Geo.  III.  c.  46,  §  2.     Ante,  227,  &c. 


OF  SPECIAL  BAIL.  244 

upon  the  original  writ,  and  the  further  sura  of  tivcntjj  pounds  as  a  aecurity 
for  the  costs  of  the  action,  there  to  remain,  to  abide  the  event  of  the  suit; 
and  thereupon  the  said  defendant  may,  and  he  is  thereby  required,  to  enter 
a  common  appearance,  or  file  common  bail  in  the  action,  within  such  time 
as  he  would  have  been  required  to  have  put  in  and  perfected  special  bail 
in  the  action,  according  to  the  course  of  the  said  court ;  or  in  default 
thereof,  the  plaintiff  in  tlio  action  is  tlicreby  empowered  to  enter  such 
common  appearance,  or  file  common  bail,  for  the  said  defendant ;  and  the 
cause  may  proceed,  as  if  the  defendant  had  put  in  and  *perfectcd 
special  bail :  And  in  case  judgment  in  the  said  action  shall  be  [  *245  ] 
given  for  the  plaintiff,  he  shall  be  entitled  by  order  of  the  court, 
upon  motion  made  for  that  purpose,  to  receive  the  said  money  so  remain- 
ing in,  or  so  deposited  or  paid  into  the  court  as  aforesaid,  or  so  much 
thereof  as  will  be  sufficient  to  satisfy  the  sum  recovered  by  the  judgment, 
and  the  costs  of  the  application:  and  if  judgment  bo  given  in  the  said 
action  for  the  defendant,  or  the  plaintiff  discontinue  his  suit,  or  be  other- 
wise barred,  or  in  case  the  sum  deposited  and  paid  into  court  be  more 
than  sufficient  to  satisfy  the  plaintiff,  the  said  money  so  deposited  or  paid 
into  court,  or  so  much  thereof  as  shall  remain,  shall,  by  order  of  the 
court,  upon  motion  to  be  made  for  that  purpose,  be  repaid  to  such  de- 
fendant. 

"  Provided  always,  that  it  shall  and  may  be  lawful  for  the  said  defend- 
ant, who  hath  made  his  election  to  make  such  deposit  and  payment  as 
aforesaid,  at  any  time  in  the  progress  of  the  cause,  before  issue  joined  in 
law  or  fact,  or  final  or  interlocutory  judgment  signed,  to  receive  the  same 
out  of  court,  by  order  of  the  said  court,  upon  putting  in  and  perfecting 
special  bail  in  the  cause,  and  payment  of  such  costs  to  the  plaintiff  as  the 
said  court  shall  direct.  Provided  also,  that  it  shall  and  may  be  lawful  for 
any  defendant  who  shall  have  put  in  and  perfected  special  bail  in  any 
cause,  upon  motion  to  the  court  in  which  the  action  is  brought,  if  the 
court  shall  so  think  fit,  to  deposit  and  pay  into  court,  the  sum  which  would 
have  been  deposited  and  paid,  in  case  the  defendant  had  originally  elected 
so  to  do,  together  with  such  further  sum,  to  answer  the  costs,  as  the  court 
may  direct,  to  abide  the  event  of  the  said  suit,  and  to  be  disposed  of  in 
manner  aforesaid ;  and  thereupon  it  shall  be  lawful  for  the  said  court  to 
direct  a  common  appearance  to  be  entered,  or  common  bail  to  be  filed  for 
the  defendant,  and  an  exoneretur  to  be  entered  upon  the  bail  piece  in  the 
said  cause."  It  is  remarkable,  that  in  a  case  long  prior  to  the  above  sta- 
tute, the  Court  of  Common  Pleas  permitted  a  defendant  instead  of  giving 
bail,  to  pay  into  court  a  sum  sufficient  to  cover  the  debt  and  costs,  in  order 
to  abide  the  event  of  the  cause. (a) 

Special  bail  are  tivo  or  more  real  and  responsible  persons,  who  undertake 
generally,  or  in  a  sum  certain,  that  if  the  defendant  be  convicted,  he  sliall 
satisfy  the  plaintiff,  or  render  himself  to  the  custody  of  the  marshal  of  the 
King's  Bench,  or  warden  of  the  Fleet  prison.  One  bail  is  not  deemed 
sufficient,  even  for  the  purpose  of  rendering  the  defendant  ;(^>)  but  there 
must  be  ttvo  bail  at  least,  and  in  general  there  are  two  only :  though,  in 
the  King's  Bench,(c)  and  Exchequer, (t^)  where  the  debt  is  large,  the  court 

(a)  1  Taunt.  425.  (f>)  Barnes,  60.     1  Chit.  Rep.  602,  in  notis. 

(c)  Lofft,  26,  252.     S'm///i  v.  TV/VifA-r,  II.  7  Geo.  III.  K.  B.     1  Sel.  Pr.  1  Ed.  169.     Per  Cur. 
M.  29  Geo.  III.  K.  B.     Mtllnr  v.  Jcnkin,  cited  ia  Forrest,  138.     1  Chit.  Rep.  601. 
{d)  Forrest,  138.     Wightw.  110. 


245  OF  SPECIAL  BAIL. 

will  ivllow  three  ov  four  persons  to  become  bail,  in  different  sums,  amount- 
inty  altogether  to  the  requisite  sum.  In  the  Common  Pleas,  however,  it  is 
said  that  notice  given  to  justify  tJiree  bail  is  irregular  :(e)  And,  in  the 
Exchequer,  if  more  than  two  persons  are  meant  to  be  bail  to  a  large 
[  *246  ]  amount,  leave  *should  be  first  asked  of  the  court  to  permit  them 
to  justify;  for  they  will  not  be  allowed  to  do  so,  on  motion  merely 
in  the  ordinary  course. (a)  In  cases  of  felony,  it  is  said  to  be  an  invaria- 
ble rule  to  require  four  bail,  in  order  to  discharge  a  prisoner  on  a  habeas 
corpus. {b) 

Special  bail  may  be  put  in  by  the  defendant,  or  by  his  attorney,  in  pur- 
suance of  his  undertaking;  or  by  the  sheriff,((?)  or  his  bail,(f?)  for  their 
own  indemnity:  And  the  sheriff,  or  his  bail,  may  put  in  or  justify  bail 
above,  by  their  own  attorney  :{ee)  In  practice  however  it  is  usual  for  the 
attorney,  employed  by  the  sheriff  or  his  bail  to  put  in  and  justify  bail 
above,  to  describe  himself  as  the  defendanV s  attorney  in  the  notice, 
though  he  be  not  actually  employed  by  the  defendant. (/)  It  is  no  objec- 
tion to  bail,  that  they  were  put  in  by  an  uncertificated  attorney  :(^)  Nor 
does  it  seem  to  be  a  ground  for  an  attachment  against  the  sheriff,  that  bail 
had  been  put  in  by  a  new  attorney,  without  an  order  for  the  former  attor- 
ney being  changed. (7i)  But  where  two  notices  are  given  by  different 
attorneys,  one  on  behalf  of  the  defendant,  and  the  other  for  the  sheriff,  of 
two  different  sets  of  bail,  and  the  bail  put  in  for  the  sheriff  have  already 
justified,  the  defendant  is  entitled  to  have  his  bail  justified,  and  allowed. (/) 
If  a  defendant  be  arrested  by  process  of  the  King's  Bench,  and  removed 
by  habeas  corjyus  to  the  Common  Pleas,  he  may  put  in  and  justify  bail  in 
either  court. (Z;) 

The  general  qualification  of  bail  above  is,  that  they  should  be  house- 
keepers, or  freeholders  ;{l)  and,  except  where  there  are  more  than  twohaW, 
that  they  are  respectively  worth  double  the  amount  of  the  sum  sworn  to, 
or  one  thousand  pounds  beyond  that  sum,  if  it  exceed  one  thousand 
pounds, (?»)  after  payment  of  all  their  debts.  A  person  resident  in  Eng- 
land has  been  admitted  to  be  bail,  in  respect  of  mortgage  money  secured 
on  an  estate  in  Ireland  :[n)  and,  in  the  Common  Pleas,  it  seems  that  the 
court  will  permit  the  bail  to  justify  as  tenant  by  the  curtesy  of  lands  in 
the  Isle  of  3Ian,  without  an  afiidavit  or  other  evidence  that  the  law  of 
tenancy  by  the  curtesy  prevails  there.(o)  But  a  copyhold  estate  of  the 
bail,   in   right  of  his  wife  is    not   sufficient   to   qualify  him  to   become 

(e)  2  Blac.  Rep.  1123  ;  and  see  1  Chit.  Rep.  601 ,  2,  [a). 

(a)  13  Price,  448.  And  see  further,  as  to  special  bail  to  the  action,  and  the  mode  of 
putting  in,  excepting  to,  and  justifying  the  same,  Petersd.  Part  I.  Chap.  VII.  VIII.  IX. 

(b)  6  Dowl.  &  Ryl.  154. 

(c)  Peake's  Cas.  Ni.  Pri.  3  Ed.  226.  1  Chit.  Rep.  81,  329.  5  Price,  558  ;  but  see  8  Moore, 
398.     1  Bing.  367,  S.  C. 

(d)  2  Str.  876.  7  Taunt.  47.  2  Marsh.  365,  S.  C.  1  Chit.  Rep.  81.  2  Barn.  &  Aid.  604. 
1  Chit.  Rep.  329,  S.  C.  And  see  1  Stark.  Ni.  Pri.  190,  as  to  the  liability  of  the  bail  in  such 
case,  to  the  defendant's  attorney,  for  the  general  expenses  of  the  suit. 

(ee)  7  Taunt.  48.  2  Marsh.  365,  6,  S.  C.  1  Chit.  Rep.  81.  2  Barn.  &  Aid.  604.  1  Chit. 
Rep.  329,  S.  C.     5  Price,  558  ;  and  see  1  Ken.  376.     7  Dowl.  &  Ryl.  259. 

(/)  Per  Bar/leij,  J.  after  consulting  the  Master,  7  Dowl.  &  Ryl.  261. 

iff)  2  Chit.  Rep.  98,  ante,  77.  (A)  Jd.  76 ;  but  see  id.  87,  93. 

(i)  I  Chit.  Rep.  81  ;  and  see  7  Dowl.  &  Ryl.  259.  (k)  1  Bos.  &  Pul.  311. 

(l)  8  Taunt.  148.  (;«)  Post,  251. 

(n)  Per  Cur.M.  42  Geo.  III.  K.  B. ;  but  see  1  Sel.  Pr.  2  Ed.  161,  where  it  is  said,  that  pro- 
perty in  Scotland  is  not  sufficient,  because  it  is  not  liable  to  the  process  of  our  courts. 

(o)  8  Taunt.  148. 


OF  SPECIAL  BAIL.  246 

bail.(|?)     And  tliougli  It  has  been  *i'ulcd  in  the  bail  court,  that    [*247] 
long  beneficial  leases,  at  small  rents,  are  sufficient  to  entitle  bail 
to  justify,(aa)  yet  this  point  does  not  seem  to  be  settled. (//^) 

A  peer  of  the  realm, (c)  or  member  of  the  house  of  commons,(cZ)  is  not 
allowed  to  be  bail,  as  not  being  liable  to  the  ordinary  process  of  the  court. 
And  a  servant  in  the  King's  household,  liable  to  be  called  upon  to  attend 
the  person  of  his  majesty,  cannot  justify  as  bail;  for  his  person  cannot  be 
taken  in  execution. (c)  It  is  also  a  rule  in  both  courts,  that  "  no  attorney 
shall  be  bail,  in  any  action  or  suit  depending  therein. "(/)  This  rule,  which 
was  calculated  for  the  benefit  of  attorneys,  and  intended  to  protect  them 
against  the  importunity  of  their  clients,  has  been  extended  to  their  clerks. (^) 
And,  in  the  King's  Bench,  a  conveyancer,  engaged  in  partnership  with  an 
attorney  of  this  court,  and  sharing  the  general  profits  of  the  business  of  the 
office,  though  he  did  not  himself  practise  as  an  attorney,  was  not  allowed  to 
justify  as  bail.(/i)  But  the  sixty  sworn  clerks,  of  the  six  clerks  in  Chan- 
cery^ do  not  come  within  the  operation  of  the  rule  which  prohibits  attor- 
neys from  being  bail.(^)  And  an  attorney,  or  his  clerk,  may  be  put  in  as 
bail,  though  he  cannot  justify  \{lt)  and  if  not  excepted  to,  he  is  liable  to  be 
sued  on  his  recognizance.(?)  So,  he  has  be^n  allowed  to  become  bail,  in 
order  to  surrender  the  defendant  immediately,  without  justification. (w)  It 
is  also  a  rule,  founded  on  principles  of  prudent  jealousy,  that  "  no  sheriff's 
officer,  bailiff,  or  other  person  concerned  in  the  execution  of  process,  shall, 
in  either  court,  be  permitted  to  be  bail,  in  any  action  or  suit  depending 
therein  :"(w)  which  latter  rule  has  been  applied  to  the  keeper  of  the  Poul- 
try compter,(o)  a  turnkey  of  the  King's  Bench  prison, (j!?)  and  marshalsea 
court  officers. (5')  BanhruiJts,  who  have  not  obtained  their  certificates, 
are  not  allowed  to  be  bail,  for  want  of  property  ;(r)  or  such  as  have  been 
twice  bankrupts,  and  not  ^dXOi  fifteen  shillings  in  the  pound  under  the 
second  commission  ;(s)  And  for  the  same  reason,  insolvent  debtors,  dis- 
charged under  any  of  the  general  insolvent  acts,(^)  are  disqualified  from 
being  bail :  as  their  future  effects  are  liable  under  these  acts. 
Though  if  a  person  who,  by  the  *rules  of  the  court,  is  not  per-  [  *248  ] 
mitted  to  become  bail,  be  put  into  the  bail-piece,  and  not  excepted 
to,  the  plaintiff,  in  the  King's  Bench,  cannot  take  an  assignment  of  the 

[p)  2  Chit.  Rep.  97. 

{aa)  2  Cbit.  Rep.  QQ,per  Bayhij,  J.  {bh)  Id.  ibid. 

(c)  2  Marsh.  232;  and  see  f  Dowl.  &  RyL  126. 

{d)  4  Taunt.  249.     1  Dowl.  &  Rvl.  126.  {c)  1  Dowl.  &  Ryl.  127,  n. 

(/•)  R.  M.  1654,  I  1.  R.  M.  14  Geo.  II.  reg.  1,  K.  B.  R.  T.  24  Eliz.  ^  8.  R.  M.  1G54,  I  1. 
R.  M.  G  Geo.  II.  reg.  5,  C.  P.     1  Chit.  Rep.  8. 

{g)  Cowp.  828.  Doug.  466.  Mmon  v.  Caswell,  T.  26  Geo.  III.  K.  B.  2  East,  182  ;  and 
see  1  H.  Blac.  76.  2  II.  Blac.  349.  1  Bos.  &  PuL  356.  2  Boa.  &  Pul.  49,  564.  1  Taunt. 
162,  164,  C.  P.     3  Price,  263,  in  Scac. 

(A)  1  Dowl.  Si  Ryl.  9.  {{)  2  Chit.  Rep.  IT. 

(k)  1  Chit.  Rep.  714,  (a).  (/)  Id.  714,  15. 

{m)  Per  Cur.  M.  42  Geo.  III.  K.  B.  2  Blac.  Rep.  1180.  7  Moore,  403,  C.  P.;  and  see  1 
Chit.  Rep.  714,  (a),  where  an  attorney  who  had  not  practised  for  6ix  years,  was  allowed  to 
justify  as  baiL 

(n)  R.  M.  14  Geo.  II.  rcg.  2,  K.  B.  2  Str.  890.  1  Barnard,  K.  B.  417.  Lofft,  153.  R.  M. 
6  Geo.  II.  reg.  7,  C.  P.     2  Blac.  ^ep.  799.     2  Bos.  &  Pul.  150.     /(/.  ((/). 

(oj  Doug.  466.  (p)  5  Moore,  72.     2  Brod.  &  Bing.  359,  S.  C. 

{q)  Per  Cur.  T.  18  Geo.  III.  K.  B.  {r)  1  Chit.  Rep.  9. 

(«)  3Iounlainv.  Wilki/is,  M.  21  Geo.  III.  K.  B.     1  Chit.  Rep.  293. 

(i)  53  Geo.  III.  c.  102.  (1  Chit.  Rep.  9;  and  see  id.  143.)  1  Geo.  IV.  c.  119.  7  Geo.  IV. 
c.  57. 


248 


OF  SPECIAL  BAIL. 


bail-bond,  and  proceed  upon  it,  as  if  no  bail  had  been  put  in. (a)  But,  in 
the  Common  Pleas,  if  an  attorney  be  put  in  as  bail,  even  though  another 
person  be  afterwards  added  in  his  stead,(5)  the  plaintiff  may  treat  the  bail 
as  a  nullity,  and  take  an  assignment  of  the  bail-bond,  or  proceed  against 
the  sheriff' :(c6')  If  the  plaintiff",  however,  except  to  the  added  bail,  who 
thereupon  justifies  without  opposition,  the  court  will  not  set  aside  the 
rule  of  allowance. (c^)  And  if  added  bail  be  excepted  to  on  the  ground 
that  the  original  bail  were  attorneys'  clerks,  the  court  will  give  time  to 
put  in  and  justify  fresh  bail.(e) 

Bail  above  are  in  general  put  in,  at  or  within  a  certain  number  of  days 
after  the  return  of  the  writ  ;[a]  but  they  may  be  put  in  before,  for  the 
purpose  of  surrendering  the  defendant :(/)  and,  after  the  return  of  the 
writ,  they  may  be  put  in  at  any  time  pending  the  action,  and  even  after 
verdict(^)  or  final  judgment,  and  before  the  defendant  is  charged  in  execu- 
tion.(A)  Where  a  verdict  has  been  found  for  the  plaintiff",  in  a  larger  sura 
than  in  the  judge's  order  to  hold  to  bail,  the  defendant,  in  order  to  obtain 
his  discharge  out  of  custody,  must  justify  bail  in  such  larger  sum ;  unless 
a  rule  has  been  made  absolute  for  a  new  trial,  in  which  case  it  is  suflScient 
for  the  bail  to  justify  in  the  ^mailer  sum.(z')     And,  after  a  final  judgment 

(a)  Thomson  v.  Roubell,  E.  22  Geo.  III.  K.  B.  cited  in  Doug.  466.  2  East,  181.  1  Chit. 
Rep.  713,  accord. ;  and  see  id.  714,  (a). 

[b)  Jackso?iy.  Ilillas,  E.  45  Geo.  III.  C.  P.     1  Taunt.  162. 

{cc)  I  Bos.  &  Pul.  356.     2  Bos.  &  Pul.  564.     1  Taunt.  162,  164. 
[d)  1  Taunt.  162.  [e)  3  Moore,  240. 

(/)  8  Durnf.  &  East,  456.     Barnes,  81,  83.     9  Moore,  556.     2  Bing.  271,  S.  C. 
Iff)  2  Chit.  Rep.  72. 

(h)  Hill  V.  Stanton,  H.  55  Geo.  III.  K.  B.  2  Chit.  Rep.  73.  2  Marsh.  374;  but  see 
Barnes,  92. 

{i)  2  Chit.  Rep.  72. 

[a]  In  Maine,  New  Hampshire,  and  Massachusetts,  on  the  arrest  of  the  defendant,  he 
gives  bail  by  bond  to  the  sheriff,  with  condition  that  he  shall  appear  and  answer  the  plain- 
tiff, and  abide  the  order  and  judgment  of  the  court  in  the  action,  and  shall  not  avoid; 
and  the  effect  of  this  condition  is,  that  the  principal  shall  satisfy  the  plaintiff's  judgment,  or 
surrender  himself  to  be  taken  in  execution,  or  that  the  bail  shall  pay  the  debt,  &c.  Bail 
thus  given  answers  the  purposes  of  bail  below  and  bail  above  at  common  law.  Hamilton 
V.  Bunldee,  1  N.  Hamp.  172.  Jfale  v.  Euss,  I  Greenl.  336.  Fierce  v.  Eeed,  2  N.  Hamp.  360. 
Champion  v.  Noijes,  2  Mass.  484.  Harrington  v.  Hennie,  13  Mass.  94.  Broaders  v.  Welsh,  2 
N.  &  M.  569.  In  Georgia,  appearance  bail  entered  to  the  sheriff,  is  equivalent  to  special 
bail.  Low ther  Y.  Lawrence,  Wright,  180.  In  South  Carolina,  bail  to  the  sheriff  is  bail  to 
the  action  by  statute.  Harwood  v.  Robertson,  2  Hill,  336.  Fletcher  v.  Weatherby,  3  Strobh. 
56.  So,  also,  in  North  Carolina.  West  v.  Ratledge,  4  Dev.  40.  In  New  Hampshire,  bail 
generally  put  their  names  on  the  back  of  the  writ,  and  thereby  take  upon  themselves  the 
liability  of  bail.  This  rests  upon  uninterrupted  usage.  Fierce  v.  Read,  2  New  Hamp.  362. 
In  Virginia,  if  the  principal  does  not  appear  according  to  the  condition  of  the  bail  bond, 
judgment  is  taken  against  him,  and  also  against  his  bail,  by  default,  unless  they  appear, 
&c.  Lee  V.  Carter,  3  Munf.  121.  Garter  v.  Cockrill,  2  Munf.  448.  Keerle  v.  Norris,  2  Virg. 
Cas.  217.  But  if  special  bail  be  afterwards  put  in,  this  judgment  will  be  set  aside.  Ibid. 
Bail  to  the  sheriff  in  New  York  will  be  relieved  in  all  cases  on  the  usual  terms,  upon  the 
return  of  the  writ  against  them.  Ilaswell  v.  Bates,  9  Johns.  80.  Bulkley  v.  Collin,  1  lb.  515. 
Berry  v.  Elles,  Coleman,  57.  In  Pennsylvania,  where  bail  to  the  sheriff'  entered  special  bail, 
which  he  refused  to  justify,  and  was  thereupon  sued  on  the  bail  bond,  but  surrendered  the 
principal  before  the  writ  was  returned,  the  surrender  was  held  to  be  good,  and  the  bail  was 
relieved  on  the  usual  terms.  Stockton  v.  Throgmorton,  1  Baldw.  148.  In  Ohio,  if  special 
bail  be  not  put  in  and  perfected  in  due  time,  the  plaintiff  tnay  elect  to  proceed  against  the 
appearance  bail,  or  rule  the  sheriff  to  bring  in  the  defendant;  but  he  cannot  do  both  ;  and 
the  entry  of  the  rule,  although  not  served,  is  an  election  to  proceed  against  the  defendant. 
Valentine  v.  Smith,  8  Ham.  26.  In  Connecticut,  the  officer  indorses  on  the  writ  that  he  has 
taken  special  bail,  if  he  would  preserve  a  hold  on  the  defendant's  body.  The  condition  of 
the  bond  is  performed  by  the  defendant's  appearance.  Hubbard  v.  Shaler,  2  Day,  199.  Hal- 
sey  V.  Fanning,  2  Root,  101.    Gallup  v.  Denison,  Kirby,  434. 


OF  SPECIAL  BAIL.  248 

has  been  signed,  the  defendant's  bail  may  put  in  fresh  bail ;  for  the  pur- 
pose of  rendering  him.(Ar) 

In  the  King's  Bench,  if  the  defendant  be  arrested  in  London  or  Middle- 
sex, special  bail  should  be  put  in  witiiin/our  days  exclusive,  or,  if  in  any 
other  county,  within  six  days  after  the  return  of  the  process, (/)  or  quarto 
die  jjost  by  original  :(?w)  And  if  either  the  fourth  or  sixth  day  fall  on  a 
Sunday,  the  defendant  has  all  the  Monday  following  to  put  in  bail.(w) 
But,  excepting  Sunday,  bail  above  may  be  put  in  on  a  dies  non  juridicus, 
as  on  the  second  of  February,  which  is  considered  as  a  day  for  such  busi- 
ness as  is  transacted  at  the  judge's  chambers. (o)  In  the  Common  Pleas,  on 
process  returnable  i\iQ  first  return  of  the  term,  special  bail  should  be  put  in 
within /our  days,  in  London  or  Middlesex,  or,  in  any  other  city 
or  county,  *within  eight  days  after  the  appearance  day,  or  quarto  [  *249  ] 
die  i^ost  of  the  return  of  the  process,(a)  exclusive  of  the  day  on 
which  it  is  returnable  :  but  on  process  returnable  the  second  or  any  other 
subsequent  return  of  the  term,  special  bail  should  be  put  in  within /owr 
days,  in  London  or  3fiddlesex,{b)  or,  in  any  other  city  or  county,  within 
eiyht  days  exclusive  after  the  return  of  the  process,  or  day  on  which  it 
is  actually  made  returnable.((?)  And  in  either  court,  if  any  further  time 
be  required  for  putting  in  bail,  it  may  be  obtained  by  taking  out  a  sum- 
mons for  that  purpose ;  and  the  judge  will  make  an  order,  upon  the  terms 
of  putting  the  plaintiff  in  the  same  state  as  he  would  have  been  in,  if 
bail  has  been  put  in  in  due  time.  In  the  Exchequer,  it  seems,  the  defend- 
ant is  allowed  only  three  days  after  the  return  day  of  the  writ,  to  put  in 
\>dJi\.{dd) 

Before  the  statute  4  &  5  W.  &  M.  c.  4,  special  bail  could  only  have  been 
put  in  before  a  judge  in  town.  But  this  practice  being  found  productive  of 
great  expense  and  inconvenience,  it  was  enacted  by  the  above  statute,(£?c)  that 
"the  chief  justice,  and  other  the  justices  of  the  court  of  King's  Bench  for 
the  time  being,  or  any  two  of  them,  whereof  the  chief  justice  for  the  time 
being  to  be  one,  and  the  chief  justice  of  the  court  of  Common  Pleas,  and 
other  the  justices  there  for  the  time  being,  or  any  two  of  them,  w^iereof 
the  chief  justice  of  the  same  court  to  be  one,  and  also  the  chief  baron  and 
barons  of  the  degree  of  the  quoif,  of  the  court  of  Exchequer  for  the  time 
being,  or  any  two  of  them,  whereof  the  chief  baron  for  the  time  being  to 
be  one,  shall  or  may,  by  one  or  more  commission(/)  or  commissions,  under 
the  several  seals  of  the  said  respective  courts,  from  time  to  time,  as  need 
shall  require,  empower  such  and  so  many  persons,  other  than  common 
attorneys  and  solicitors,  as  they  shall  think  fit  and  necessary,  in  all  and 
every  the  several  shires  and  counties  within  the  kingdom  of  England, 
dominion  of  Wales,  and  town  of  Berwick  upon  Tweed,  to  take  and  receive 
all  and  every  such  recognizance  or  recognizances  of  bail  or  bails,  as  any 

[k)  2  Chit.  Rep.  74. 

(l)  R.  M.  8  Ann.  reg.  1  K.  B.     Former  rule,  E.  11  "W.  III.  retj.  2  K.  B. 

(m)  4  Durnf.  &  East,  377  ;  but  see  2  Barn.  &  Cres.  626.  4  Dowl.  &  Ryl.  160,  S.  C,  wherein 
the  court  were  of  opinion,  that  the  bail  bond  was  forfeited,  by  not  putting  in  bail  on  the 
quarto  die  post ;  and  that  the  other  four  or  fix  days  were  allowed  merely  ex  gratia. 

(n)  R.  M.  8  Ann.  1,  (6),  K.  B.     2"Str.  782,  914.  (o)  5  Durnf.  &  East,  170. 

(a)  2  H.  Blac.  276. 

(6)   White  V.  Girdler,  T.  26  Geo.  III.  Imp.  C.  P.  4  Ed.  196,  7. 

(c.)  R.  T.  30Geo.  III.  C.  P.     Imp.  C.  P.  7  Ed.  110,  11,  129,30,  137,8. 

{dd)  1  Price,  104,  (a).  (ee)  §  1. 

( /■)  This  commission  is  subject  to  the  stamp  duty  of  10.?.  by  stat.  55  Geo.  III.  c.  184. 
Schcd.  Part  II.  g  III, 


249  OF  SPECIAL  BAIL. 

person  or  persons  shall  be  willing  or  desirous  to  acknowledge  or  nialce 
before  any  of  the  persons  so  empowered,  in  any  action  or  suit  depending 
in  the  said  respective  courts,  in  such  manner  and  form,  and  by  such  recog- 
nizance or  bail-piece,  as  the  justices  or  barons  of  the  said  respective  courts 
have  used  to  take  the  same :  which  said  recognizance  or  recognizances  of 
bail  or  bail-piece,  so  taken  as  aforesaid,  shall  be  transmitted  to  some  or 
one  of  the  justices  or  barons  of  the  said  respective  courts  ;  who,  upon 
affidavit  made  of  the  due  taking  of  the  recognizance  of  such  bail  or  bail- 
piece,  by  some  credible  person  present  at  the  taking  thereof,  shall  receive 
the  same,  upon  payment  of  the  usual  fees;  which  recognizance  of  bail  or 
bail-piece,  so  taken  and  transmitted,  shall  be  of  the  like  effect,  as 
[  *250  ]  if  the  same  were  taken  de  bene  esse,  before  any  of  the  *said  jus- 
tices and  barons:  for  the  taking  of  which  recognizance,  the  per- 
son empowered  shall  receive  only  the  sum  or  fee  of  two  shillings,  and  no 
more."  But,  in  the  Exchequer,  it  has  been  holden,  that  a  commissioner 
is  not  confined  to  that  sum,  if  he  have  been  put  to  expense  by  travelling, 
or  have  taken  extraordinary  trouble,  at  the  instance  of  the  parties,  to 
effect  the  taking  of  the  recognizance,  or  where  there  are  other  circum- 
stances in  the  case,  which  afford  reasonable  ground  for  a  further  charge.(a) 
And  any  judge  of  assize,  in  his  circuit,  shall  and  may  take  and  receive  all 
and  every  such  recognizance  and  recognizances  of  bail  or  bails,  as  any 
person  shall  be  willing  and  desirous  to  make  and  acknowledge  before  him ; 
which  being  transmitted  in  like  manner,  shall,  without  oath,  be  received 
in  manner  as  aforesaid,  upon  payment  of  the  usual  fees. (5)  Since  the 
making  of  the  above  statute,  special  bail  may  be  put  in  before  a  judge  in 
town,  a  commissioner  in  the  country,  or  a  judge  of  assize  in  his  circuit. 
And  one  of  the  bail  may  be  taken  by  affidavit,  before  a  commissioner  in 
the  country,  and  the  other  before  a  judge  in  town.(c) 

In  the  King's  Bench,  special  bail  are  put  in,  before  a  judge  in  town,  at 
his  chambers  ;  and,  in  actions  by  bill,  their  recognizance  is  taken  by  the 
judge's  clerk,  on  a  bail-2nece,{d)  made  out  by  the  defendant's  attorney ; 
stating  the  term,  the  county  into  which  the  writ  issued, (e)  and  the  names 
of  the  parties  together  with  the  names  and  additions  of  the  bail,  and  the 
sum  sworn  to. [a]  In  actions  by  original,  in  the  King's  Bench,  special 
bail  are  put  in  before  a  judge  in  town,  with  a  filacer  or  his  clerk,  who 
enters  it  of  the  county  into  which  the  capias  issued ;(/)  the  defendant's 
attorney  first  making  out  and  delivering  to  him  a  note  in  writing,  answer- 
ing to  the  bail-piece  by  bill  :(^)  and  bail  must  likewise  be  put  in  that 
county,  on  a  testatum  ca])ias.{Ji)  But  where  the  defendant  had  been 
arrested  on  a  testatum  capias  from  Middlesex  to  Kent,  and  bail  was  put 
in  in  the  latter  county,  Kent  being  inserted  in  the  bail-piece,  but  in  the 

(a)  5  Price,  2.  {b)  ?  3.  (c)  2  Chit.  Rep.  90. 

{d)  Append.  Chap.  XII.  I  5,  6.         (e)  7  Durnf.  &  East,  96. 

(/)  1  Chit.  Rep.  237. 

[g)  Trye,  67,  8.  Append.  Chap.  XII.  ^  7.  And  for  the  filacer's  entry  of  special  bail  by 
original,  in  K.  B.  see  id.  §  8. 

{h)  1  East,  603.  2  Bos.  &  Pul.  516.  3  Moore,  76;  and  see  Barnes,  63.  R.  H.  22  Geo. 
III.  C.  P. 

[a]  Bail  may  justify  at  the  time  and  place  specified  in  the  notice  before  a  different  ofiBcer 
from  him  who  is  named  in  the  notice,  but  the  plaintiff  must  not  be  misled.  Southerland  v. 
Sheffield,  2  Wend.  293.  And  before  officers  authorized  to  talie  recognizances,  or  in  open 
court,  see  Rule  of  Court,  13  Johns.  422  ;  or  in  vacation  before  a  judge  at  chambers.  Fe?m 
V.  Smith,  6  Id.  124.     The  matter  is  generally  regulated  by  rules  of  court. 


OF  SPECIAL  BAIL.  250 

margin  tliese  words,  "  Testatum  from  Middlesex,'"  the  court  held,  that  the 
notice  in  the  margin  made  it  regular. («)  And  where  the  defendant,  by 
mistake,  put  in  bail  in  the  Common  Pleas,  to  an  action  in  the  King's 
Bench,  and  thereby  misled  the  plaint  ill",  who  declared  without  discovering 
the  mistake,  the  court  ordered  the  defendant  to  rectify  the  same,  by  put- 
ting in  and  perfecting  bail  in  the  King's  ]>ench,  of  the  proper  terra. (^) 
The  recognizance  of  bail  by  hill,  in  the  King's  Bench,  if  taken  before 
judgment,  is  general, (?)  that  if  the  defendant  be  condemned  in  the  action, 
he  shall  satisfy  the  costs  and  condemnation  money,  or  render  himself  to 
the  custody  of  the  marshal ;  or  that  the  bail  will  pay  the  costs 
and  condemnation  money  for  him  -.[in)  And  *the  bail  piece  is  left  [  *251  ] 
at  the  judge's  chambers,  until  the  bail  are  perfected.  Vyy  origi- 
nal, the  recognizance  is  taken  in  a  penalty  or  sum  certain,  being  double 
the  amount  of  the  sum  sworn  to,(a)  or  one  thousand  pounds  beyond  that 
sum,  if  it  exceed  one  thousand  pounds  :{b)  And  where  bail  is  put  in  after 
judgment,  the  recognizance  is  taken  in  double  the  amount  of  the  sum 
recovered.  (6-) 

In  the  Common  Pleas,  bail  should  be  put  in  with  the  filacer  of  the 
county  into  which  the  capias  issued, ((Z)  who  attends  to  take  them  at  the 
judge's  chambers ;  and,  on  being  furnished  with  an  abstract  of  the  writ, 
and  the  names  and  additions  of  the  bail,(e)  he  will  make  an  entry 
thereof  in  a  book  kept  for  that  purpose  '-{ff)  or  bail  may  be  taken  in 
the  absence  of  the  filacer,  upon  bringing  a  true  abstract  of  the  writ  on 
parchment, ((/(/)  in  form  of  a  bail-piece. (/iA)  The  entry  of  bail  in  the 
filacer's  book  is  of  the  term  generally,  which  of  course  relates  to  the 
first  day  of  it;  and  therefore,  in  an  action  on  a  bail  bond,  if  the  issue 
depend  on  the  date  of  the  appearance,  the  court,  upon  an  application  by 
the  plaintiff,  will  order  the  day  of  appearance  to  be  entered  in  the  filacer's 
book;  although  issue  has  been  already  joined  on  the  plea  oi  cowperuit 
ad  diem.^ii)  Formerly,  the  defendant,  in  the  Common  Pleas,  might  have 
entered  into  the  recognizance  of  bail  himself;  and  in  that  case  he  was 
bound  in  double  the  sum  sworn  to,  and  each  of  the  bail  in  the  single  sum 
only;(^Z:)  but  now,  by  a  late  rule,(/?)  "in  all  actions  requiring  bail,  the 
defendant  shall  not  be  permitted  to  enter  into  the  recognizance ;  but  the  bail 
shall  each  of  them  enter  into  a  recognizance,  in  double  the  sum  sworn  to, 
or,  by  a  subsequent  rule,(??rm)  one  thousand  pounds  beyond  that  sum  if  it  ex- 
ceed one  thousand  pounds.  In  the  Exchequer,  there  is  a  similar  rule:(M) 
And,  in  that  court,  the  form  of  a  recognizance  of  bail  after  judgment,  and 
before  the  defendant  has  been  charged  in  execution,  is  to  render  him  to 

((■)  3  Maule  &  Sel.  532. 

(/•)  Boi/ce  V.  Ruxt,  T.  22  Geo.  III.  K.  B. 

(Z)  2  Bulst.  232.  Cro.  Jac.  449,  G45.  Cro.  Car.  481.  2  Salk.  564. 

(m)  Append.  Chap.  XII.  §  12. 

{a)  Trye,  121,  2.  (!,)  R.  M.  51  Geo.  III.  K.  B.  13  East,  62. 

(c)  Jim  V.  S/'i>ito/i,  H.  55  Geo.  III.  K.  B.    2  Chit.  Rep.  73.     Ai)pend.  Chap.  XII.  §  46. 

(d)  R.  T.  1  W.  &  M.  rcif.  2,  C.  P.  2  Blac.  Rep.  lOGl.  2  Bos.  &  Pul.  516.  3  Moore,  76.  3 
Bwg.  603. 

{e)  Append.  Chap.  XII.  ?  7. 

(/)  Jd.  §  9,  1 1.  (ffff)  Notice,  U.  8  Geo.  II.  g  3,  C.  P. 

(hh)  Append.  Chap.  XII.  ?  10.  (ii)  1  Taunt.  23. 

(kk)  R.  10  Mar.  5  W.  &  M.  p,  C.  P.    1  Bos.  &  Pul.  206,  7. 

{U)'R.  E.  36  Geo.  III.  C.  P.    1  Bos.  &  Pul.  530.    1  Brod.  &  Bing.  490. 

{mm)  R.  M.  51  Geo.  III.  C.  P.    3  Taunt.  341.    2  Chit.  Rep.  378. 

(n)  Wightw.  115.    Man.  Ex.  Append.  226.    3  Price,  508. 


251  OF  SPECIAL  BAIL. 

the  prison  of  the  Fleet,  on  or  before  the  fourth  day  of  the  next  following 
term.(o) 

Before  a  commissioner  in  the  country,  a  bail-piece  is  made  out  in  the 
King's  Bench,(|))  whether  the  action  be  by  hill  or  original,  and  the  recog- 
nizance taken  thereon,  in  the  same  manner  as  in  town,  where  the  action  is 
by  bill.{q)  In  the  Common  Pleas,  the  recognizance  is  taken  on  a  bail- 
piece,(r)  in  a  sum  certain  :{s)  And  where  the  defendant  had  been  arrested 
in  the  county  palatine  of  Lancaster,  upon  a  testatum  capias 
[  *252  ]  from  *London,  and  it  appeared  on  the  face  of  the  bail-piece,  that 
they  had  been  put  in  at  Lancaster,  the  court  held  that  the  bail- 
piece  was  wrong,  and  that  it  should  have  been  taken  as  upon  a  testatum 
from  London  into  the  county  palatine. (a)  In  both  courts,  an  ajfidavit  of 
the  due  taking  of  the  bail  should  be  made,  either  before  the  judge  to  whom 
the  bail-piece  is  transmitted,  or  before  a  commissioner  for  taking  affida- 
vits •,{b)  which  affidavit  is  in  general  made  before  a  commissioner,  (not  being 
the  person  who  took  the  bail,)  and  annexed  to  the  bail-piece  :(c)  but  no  such 
affidavit  is  necessary  upon  the  transmission,  when  the  bail  is  taken  by  a  judge 
of  assize  in  his  circuit.  The  rules  of  court  require  the  bail-piece  to  be  trans- 
mitted to  the  chief-justice,  or  other  judge  of  the  court  of  King's  Bench,  in 
eight  days,  if  taken  within  forty  miles  of  London  or  Westminster,  or,  if 
taken  above  that  distance,  in  fifteen  days  after  the  taking  thereof;  and  in  the 
Common  Pleas,  the  bail,  if  taken  within  forty  miles  of  London,  should  be 
transmitted  within  ten  days,  or,  if  taken  above  that  distance,  within  twenty 
days  after  the  taking  thereof  ;(t7)  unless  all  the  judges  are  on  their  cir- 
cuits, and  then  as  soon  as  any  one  of  them  is  returned.(e)  But  it  is  said 
that,  notwithstanding  these  rules,  the  bail-piece  must  actually  be  filed  with 
one  of  the  judges,  on  the  sixth  day  after  the  return  of  the  writ  in  the  King's 
Bench,  or  eighth  day  in  the  Common  Pleas,  or  the  bail-bond  may  be 
assigned. (/)  And  where  the  action  is  by  original,  in  the  King's  Bench 
or  Common  Pleas,  the  bail-piece  being  transmitted  and  allowed  by  the  judge, 
should  be  filed  with  the  filacer  of  the  county  where  the  action  is  laid.(^) 

In  putting  in  special  bail,  the  parties  to  the  suit  should  be  named  as  in 
the  process,  unless  the  defendant  be  called  therein  by  a  wrong  name,  and 
mean  to  avail  himself  of  the  misnomer;  in  which  case  he  should  put  in  bail 
in  his  right  name,  stating  that  he  was  arrested  or  sued  by  the  name  in  the 
writ :  For  if  a  defendant,  sued  by  a  Avrong  name,  appear  and  perfect  bail  by 
his  right  name,  without  identifying  himself  as  the  person  sued  by  the  other 
name,  the  plaintiff  may  treat  the  bail  as  a  nullity,  and  attach  the  sheriff.(7i) 
And  if  the  defendant,  after  being  arrested,  were  to  put  in  bail  above  in  a 
wrong  name,  it  would  estop  him  from  pleading  the  misnomer  in  abate- 
ment ;(^)  even  though  he  were  himself  no  party  to  the  recognizance.(A;)   But 

(o)  M'CleL  310.    13  Price,  589,  S.  C.  [p)  Append.  Chap.  XII.  |  16. 

Iq)  R.  T.  8  W.  III.  reg.  3,  ^  1,  K.  B. 

(r)  R.  10  March,  5  W.  &  M.  §  1,  C.  P.    Append.  Chap.  XII.  ?  17. 

(.s)  Append.  Chap.  XII.  §  19.  (a)  3  Moore,  76. 

(b)  R.  T.  8  W.  III.  reg.  3,  §  2,  K.  B.  R.  10  March,  5  W.  &  M.  |  2,  C.  P. ;  and  see  Append. 
Chap.  XII.  I  20.  (c)  R.  T.  8  W.  III.  reg.  2,  (a),  K.  B. 

{d)  R.  10  Mar.  5  W.  &  M.  §  3,  C.  P.  (e)  R.  T.  8  W.  III.  reg.  3,  §  3,  K.  B. 

(/)  Imp.  K.  B.  10  Ed.  137.'   Imp.  C.  P.  7  Ed.  129,  30. 

(g)  1  East,  603.  Imp.  K.  B.  10  Ed.  528.  1  Cromp.  3  Ed.  51,  2.  R.H.  6  Geo.  L  reg.  2,  R.  M. 
13  Geo.  I.  R.  M.  6  Geo.  II.  reg.  1,  C.  P. 

(Ji)  4  Taunt.  818. 

{i)  Willes,  461.  Barnes,  94,  S.  C. ;  and  see  1  Salk.  8.    3  Durnf.  &  East,  611. 

{k)  2  New  Rep.  C.  P.  453. 


OF  SPECIAL  BAIL.  052 

where  the  plaintiff  sued  out  an  orUjinal  writ  against  the  defendant  in  his 

■wrong  name,  the  j^rsccipe  being  right,  and  the  defendant  put  in  hail  in  his 

right  name,  the  court  set  aside  an  attachment  obtained  against  the  sheriff,  fur 

not  bringing  in  the  body,  but  without  costs  on  eitlier  side.(/)     And  where 

the  defendant  was  named  in  the  notice  of  bail  by  his  right  name, 

as  *having  been  sued  by  a  wrong  one,  but  in  the  bail-piece  he  was  [  *2o3  ] 

called  by  the  wrong  name  only,  this  was  deemed  sufficient. (a)    If 

the  parties  be  rightly  named  in  the  recognizance  of  bail,  it  is  sufficient, 

where  there  is  no  exception,  though  they  are  misnamed  in  the  aflidavits  of 

sufficiency,  and  acknowledgment  of  the  bail. (6) 

Special  bail  are  ahsolutc  or  de  bene  esse.{c)  In  criminal  cases  no  justifi- 
cation being  requisite,  the  bail  are  absolute  in  the  first  instance  \{d}  but  in 
civil  cases,  they  cannot  be  taken  absolutely,  without  the  consent  of  the 
plaintiff,  or  his  attorney  :(e)  And  when  they  are  taken  de  bene  esse,  the  de- 
fendant's attorney  should  give  notice  thereof  in  writing  without  delay,  to 
the  plaintiff's  attorney. (/)  Formerly,  the  defendant's  attorney  was  re- 
quired to  give  notice  of  bail,  in  the  King's  Bench,  to  the  plaintiff's  attor- 
ney, before  it  was  put  in;(g)  and  the  plaintiff's  attorney,  on  such  notice 
being  given  to  him,  was  obliged  to  attend  before  a  judge,  to  accept  of,  or 
except  to  the  bail  :{hh)  But  notice  of  bail  is  not  now  given,  until  after  it  is 
put  in  :  and  though  it  should  regularly  be  given  before  the  time  for  putting 
in  bail  is  expired,  yet  if  it  be  not  given  in  time,  the  plaintiff  cannot,  after 
notice,  regularly  take  an  assignment  of  the  bail  bond.(»)  In  the  Common 
Pleas,  where  bail  was  put  in  in  due  time,  the  defendant  was  not  formerly 
bound  to  give  notice  thereof,  but  the  plaintiff  must  have  searched  in  the 
filacer's  book  ;{Ick)  though  it  was  otherwise,  if  they  had  not  been  put  in  in 
due  time  :{ll)  But  now,  by  a  late  rule  of  court,(wi)  "  when  special  bail  is 
put  in  for  the  defendant,  a  notice  in  writing  of  such  bail  being  so  put  in, 
must  be  forthwith  given  to  the  plaintiff's  attorney  or  agent;  and  special 
bail  shall  not  be  considered  as  put  in,  until  such  notice  shall  be  given." 

The  notice  of  bail  in  town  is,  that  they  are  put  in  ;(?i)  or,  if  taken  before 
a  commissioner,  that  the  bail-piece  is  Jiled,{o)  with  an  affidavit  of  the  due 
taking  thereof,  at  a  judge's  chambers ;  or,  in  actions  by  original,  in  the 
King's  Bench  or  Common  Pleas,  that  the  bail  has  been  allowed  by  a  judge, 
and  the  bail-piece  and  affidavit  are  filed  Avith  the  filacer.  The  notice,  in 
either  case,  should  be  properly  eyititled ;{p)  and,  where  it  is  of 
bail  put  in,  'should  set  forth  with  truth  and  certainty,  their  [  "'^.Vi  ] 

(/)  2  Chit.  Rep.  56. 

(a)  2  Chit.  Rep.  81.  (6)  5  Taunt.  603  ;  nnd  ?ee  1  rricc.  '^^^b. 

((•)  The  origin  of  bail  de  bene  esse  is  thu3  related  by  67y«,  Ch.  J.  "  A  bishop,  (says  he,) 
having  arrested  a  man  for  a  large  debt,  he  tendered  bail  to  chief  justice  Jiic/iiir<i.ion,  who 
took  it  in  his  chamber  ;  and  the  Ijail  being  insufficient,  the  bisliop  represented  tlie  matter 
to  parliament,  and  prayed  their  remedy  for  it:  upon  which  it  was  enacted,  tliat  no  bail, 
taken  belbic  a  judge  in  his  chamber,  should  bind  the  plaintiff,  without  his  assent  thereto, 
or  the  confirmation  of  such  bail  taken  by  all  the  court."  2  Sid.  91.  For  the  proceedings  in 
tliis  case,  see  Man.  Ex.  Append.  243. 

{d)  2  Blac.  Rep.  1110.  And  for  the  rules  respecting  bailing  prisoners,  on  the  return  of  a 
habeas  corpus,  in  criminal  ca.ies,  see  1  Chit.  Cr.  L.  129.  2  Chit.  Rep.  109,  10.  C  Dowl.  k  Ryl. 
154.    Petersd.  Part  III.  Chap.  III. 

(<•)  R.  M.  1C54,  §  8,  K.  B.    R.  M.  1654,  ?  II,  C.  P. 

(/)  R.  M.  IG  Car.  II.  K.  B.    Append.  Chap.  XII.  g  13,  15. 

(ff)  R.  M.  7  Jac.  I.  K.  B.  (hh)  R.  M.  21  Car.  I.  K.  B. 

(ji)  Per  Cur.  M.  44  Geo.  III.  K.  B.  (kk)  2  Ken.  467. 

(U)  1  H.  Blac.  529.  (m)  R.  E.  49  Geo.  III.  C.  P.  1  Taunt.  616. 

(n)  Append.  Chap.  XII.  ?  13,  15.  (o)  Id.  I  21,  22. 

(/>)  Lofft,  237  I  and  see  2  Chit.  Rep.  77,  81. 


254  OF  srEciAL  bail. 

namcs,((/)  places  of  abode, (?>)  and  degrees  or  mysteries, (<?)  in  order 
that  tlie  plaintiif  may  have  an  opportunity  of  inquiring  after  them:(£Z) 
And  if  the  bail  above  are  the  same  persons  as  were  bail  to  the  sheriff,  it  is 
usually  so  expressed  in  the  notice. 

In  setting  out  the  places  of  abode  of  the  bail,  it  seems  sufficient  to 
describe  them  in  the  notice,  by  their  place  of  business  :(e)  But  the  'parish 
wherein  they  live,  without  the  street,  or  other  certain  place  of  their  resi- 
dence, is  too  A^ague  a  description :(/)  And  a  mistake  in  the  number  of  the 
house  in  which  the  bail  resides,  is  a  ground  of  rejection. (£/)  So,  it  is  not 
sufficient  to  describe  the  bail  generally,  as  of  a  large  town,  such  as  Liver- 
pool,{Ji)  Lancaster ^{i)  Leeds,{k)  Leicester, [k)  Birmingham,{l)  or  the  town 
and  county  of  the  town  of  Notting]ia7n,{m)  without  any  further  descrip- 
tion, to  direct  the  plaintiff  in  his  inquiries  as  to  their  sufficiency :  In  all 
large  towns,  the  street  ought  to  be  mentioned  in  the  notice.(w)  And  a  de- 
scription of  bail  as  of  one  of  the  large  villages  near  London,  such  as  Clap- 
ham,{p)  ovWalworth,{pp)  or  Battle  Bridge,{q)  is  too  general,  if  there  be 
a  known  and  particular  designation  of  the  place  where  the  bail  resides.  But 
when  the  plaintiff  has  had  a  long  time  to  inquire  after  the  bail,(r)  or  has  in 
fact  found  them, (5)  the  court  will  not  reject  the  bail,  on  account  of  a  gene- 
rality of  description,  which  would  otherwise  have  been  fatal :  And,  in  thje 
Common  Pleas  the  court  will  not  take  judicial  notice  of  the  size  of  the 
place,  where  the  bail  are  described  as  residing ;  and  if  it  be  too  large,  that 
fact  must  be  shown  by  affidavit. (<)  As  to  the  degree  or  mystery  of  the  bail, 
a  schoobnaster,{u)  or  clei'k  in  the  custom-house, (.r)  is  holden  to  be  well  de- 
scribed as  a  gentleman:  but  the  description  of  bail  as  o,  gentleman,  when 
it  appears  he  is  a  servant,[x)  or  clerk  in  a  mercantile  house,(2/)  or  has 
recently  been  a  butcher,  and  is  about  to  set  up  again  in  that  trade,(2:)  is 
insufficient ;  and  though  the  bail  has  been  found,  yet  the  objection  is  not 
aUded.^z)  So,  where  a  baker  was  described  in  the  notice  as  a  gentleman, 
the  court  of  Common  Pleas  rejected  him  ;  and  desired  that  it  might  be 
understood  in  future,  as  a  general  rule,  that  a  false  addition  to  the  name 
of  the  bail,  should  be  considered  as  a  ground  of  rejection. (*)     But  it  is 

not  a  sufficient  ground  for  rejecting  a  *person  as  bail,  in  that 
[  *255  ]   court,  that  he  is  described  in  the  notice,  to  be  of  A.    in  the 

county  of  B.  gaol-keeper. (aa)  It  seems  that  shopkeeper  is  in 
general  a  sufficient  description  of  bail  ;{bb)  though  bail  so  described  have, 
under  particular  circumstances,  been  rejected. (?)§)  The  notice  of  bail 
should  regularly  be  served,  either  upon  the  plaintiff's  ixttorney  personally, 

[a)  Lofft,  187.   5  Taunt.  854.  1  Marsh.  386,  S.  C.  1  Moore,  126  ;  but  see  4  Dowl.  &  Ryl.  30. 
(6)  Lofft,  72,  194.   1  Bos.  &  Pul.  325,  335.    5  Taunt.  173,  554. 
(c)  Lofft,  187,  281.  2  Taunt.  173.  5  Taunt.  554.  (d)  6  Mod.  24. 

[e)  I  Price,  400.  (/)  Lofft,  72,  194. 

((/}  Per  Cur.  H.  55  Geo.  IIL  K.  B.    1  Chit.  Rep.  493,  in  notis. 
[h)  1  Chit.  Rep.  492.  Id.  492,  3,  [a).  {i)  Id.  492,  (a), 

(k)  Id.  ibid.  6  Moore,  44.  \l)  Per  Cur.  E.  22  Geo.  IIL  K.B. 

(m)  Per  Cur.  E.  59  Geo.  IIL  C.  P.  (n)  Per  Cur.  E.  22  Geo.  IIL  K.  B.  Ante,  31. 

(o)  5  Taunt.  173;  but  see  6  Moore,  332,  where  a  notice  of  bail,  as  residing  at  Clapham, 
was  deemed  sufficient,  it  appearing  that  he  resided  in  the  Clapham  road. 

(pp)  1  Chit.  Rep.  493,  in  notis.  (q)  2  Chit.  Rep.  81. 

(r)  1  Chit.  Rep.  493,  in  notis.  (s)  Id.  503. 

(0  5  Taunt.  554.  (m)  Id.  759. 

{x}  1  Chit.  Rep.  494,  in  notis.  (y)  7  Dowl.  &  Ryl.  772. 

(z)  1  Chit.  Rep.  76,  [a), per  Abbott,  J.  (*)  2  Taunt.  173,  4. 

(aa)  2  Bos.  &  PuL  150. 

[bb)  1  Chit.  Rep.  494,  in  nods. 


OF  SPECIAL  BAIL.  255 

or  upon  some  clerk  or  servant  in  his  office :  but  wlicn  the  attorney  cannot 
be  met  with,  and  his  office  is  not  open,  it  is  suificient  to  stick  up  a  copy  of 
the  notice  in  the  King's  Bench  office,  and  put  another  under  tlie  attor- 
ney's door.(6')  And  service  of  notice  of  bail,  by  leaving  the  same  at  a  sta- 
tioner's, where  the  plaintiff's  attorney's  papers  are  usually  left  for  him, 
has  been  deemed  sufficient. ((Z) 

The  plaintift'  or  his  attorney,  upon  being  served  with  this  notice,  either 
accepts  of,  or  excepts  to  the  bail.  If  he  accept  of  them,  the  defendant's  at- 
torney, in  the  King's  Bench,  should  cause  the  bail-piece  to  be  filed  with  the 
master,  within  twenty  days  after  such  acceptance  :(t')  or  if  the  plaintiff  do 
not  except  to  the  bail  for  insufficiency,  within  ttventij  days  next  after  notice 
thereof  given  to  him  or  his  attorney,  then,  upon  an  affidavit  in  writing  of 
such  notice  on  the  back  of  the  bail-piece,  for  which  affidavit  no  fee  shall  be 
taken,  the  bail-piece  shall  be  filed  by  the  defendant's  attorney,  witliin/owr 
days  next  after  the  end  of  the  tioenty  days.(/)  But  if  the  plaintiff  be  not 
satisfied  with  the  bail,  he  may  except  to  them  in  either  court,  and  thereby 
compel  a  justification.  If  the  bail  to  the  sherift' become  bail  above,  theplain- 
tifl',  in  the  King's  Bench,  is  not  at  liberty  to  accept  of  them,  after  he  has 
taken  an  assignment  of  the  bail  bond  •,{g)  for  by  so  doing,  he  has  admitted 
them  to  be  sufficient :  but  if  exception  be  taken  to  the  bail  before  the  bond 
is  assigned,  they  are  bound  to  justify,  notwithstanding  such  assignment  :{A) 
and  in  the  Common  Pleas  it  is  a  rule,  that  "  in  all  cases  wherein  bail  bonds 
shall  be  taken,  and  the  same  bail  is  put  in  above,  the  plaintiff"  may  except 
against  such  bail."(t)  The  delivery  of  a  declaration  in  chief  before  spe- 
cial bail  put  in,  is  holden  in  both  courts,  to  be  a  waiver  of  the  bail ;  and, 
before  justification,  it  is  an  acceptance  of  them  :(^;)[a]  But  the  plaintiff 
may  declare  de  bene  esse,  or  conditionally,  provided  good  bail  be  put  in, 
or  the  bail  already  put  in  do  justify ;(/)  though  the  demand  or  acceptance 
of  a  plea  will  even  then,  in  general,  be  deemed  a  waiver  of  the  bail,  or 
justification. (m)  When  bail  above  is  put  in  in  due  time,  and  notice  thereof 
given  to  the  plaintiff's  attorney,  the  bail  should  be  excepted  to, 
and  notice  of  the  exception  given  to  the  defendant's  attorney,  [  *256  ] 
before  the  *sheriff  is  ruled  :(a)  And  there  is  no  difference  in 
this  respect,  between  the  original  and  added  bail ;  it  being  holden,  that 
the  adding  bail  afterwards,  does  not  supersede  the  necessity  of  such 
exception,  before  an  attachment  can  issue  against  the  sheriff,  on  account 

(c)  2  Chit.  Rep.  81.  (d)  Id.  82. 

(e)  R.  T.  13  Car.  II.  K.  B.     Former  rule,  II.  23  Car.  I.  K.  B. 
(/)  R.  M.  16  Car.  II.  K.  B. 

{</)  1  Salk.  97.  7  Mod.  62,  117.  6  Mod.  122.  R.  M.  8  Ann.  re;/.  1,  (c).  R.  E.  5  Geo.  II. 
reff.  l,{a),  K.  B.  [h]  11  East,  321. 

(i)  R.  M.  6  Geo.  II.  rej.  2,  C.  P.   Barnes,  63.    2  Wils.  6. 

(A-)  R.  M.  8  Ana.  rej.  1,  (<•),  K.  B.  R.  E.  5  Geo.  II.  rcj.  1,  (a),  K.  B.    Cas.  Pr.  C.P.  81,  155. 
{I)  R.  M.  8  Ann.  rey.  1,  (c),  K.  B.  Cas.  Pr.  C.  P.  81. 
(m)  Barnes,  92;  but  see  1  Dowl.  &  Ryl.  163.    4  Dowl.  &  Ryl.  834. 
(a)  Loflft,  159.  8  Durnf.  &  East,  258.    1  New  Rep.  C.  P.  139.    7  Dowl.  k  Ryl.  264. 

[a]  By  filinp  a  declaration,  exceptions  to  the  bail  are  waived,  but  the  bail  is  not  discharged. 
Filler  V.  linjs'in,  6  W.  &  S.  566.  Caton  v.  M'Carti/,  2  Dall.  141.  Jiobi/s/uill  v.  Oppenheimer,  4 
Wash.  C.  C.  317.  Cnndee  v.  Kehn/,  7  Ham.  (Part  2,)  210.  People  v.  Slrrenx,  9  Johns.  72.  lin'ffgs 
V.  Howe,  7  Cow.  503.  Com.  v.  Ileilmon,  4  Barr,  455.  Culpepper  Socieh/  v.  Di^jges,  6  Rand. 
165.  The  riglit  to  special  bail  may  always  be  waived,  and  the  trial  proceed.  Paul  v.  Pur- 
rrll,  2  Browne,  20.  Thus,  a  rule  to  arbitrate  before  special  bail  is  entered,  is  a  waiver. 
Moithon  V.  Rees,  6  Binn.  32.  Nonen  v.  Gelhaud,  II  S.  &  R.  9.  l'hiUip.f  v.  Oliver,  5  Id.  410. 
Maus  V.  Scilzinffcr,  2  Id.  421  ;  or  a  judgment  for  want  of  an  affidavit  of  defence.  Barbe  v. 
Bavin,  1  Miles,  120. 


256 


OF  SPECIAL  BAIL. 


of  the  added  bail  not  having  justified  in  time.(M)  But  when  bail  above 
is  not  put  in  at  the  time  of  ruling  the  sherifi'  to  return  the  writ,  or 
brinf  in  the  body,  he  must  put  in  and  perfect  bail  at  his  peril,  or  render 
the  defendant,  yfith'm  four  days  in  a  town  cause,  or  six  days  in  a  country 
cause,  without  any  exception ;  for  otherwise,  if  the  plaintiif  excepted,  the 
sheriff  would  have  four  days  after  exception  to  perfect  bail,  and  by  that 
means  would  have  more  than  the  time  allowed  him,  by  the  practice  of  the 
court,  to  return  the  writ,  and  bring  in  the  body.(c) 

In  the  King's  Bench,  the  exception  to  bail,  if  put  in  in  due  time,  should 
be  put  in  the  bail  book  at  the  judge's  chambers  by  biU,{d)  or  in  the  filacer's 
book  by  original,{e)  within  twenty  days  after  notice  of  bail  put  in  or  filed, (/) 
and  not  afterwards. (^)  If  it  be  not  entered  within  that  time,  the  bail  be- 
comes absolute  ;(7i)  and  the  bail-piece  should  be  filed  by  the  defendant's 
attorney,  ysiihin  four  days  after  the  end  of  the  twenty  days.(z)  But  if  bail 
above  be  not  put  in  in  due  time,  they  must  be  justified,  though  not  excepted 
to  by  the  plaintiff.(A:)  The  exception  being  entered,  notice  thereof  should 
be  given  in  writing,  without  delay,  to  the  defendant's  attorney  :(?)[a]  and 
"  if  the  notice  be  given  in  term-time,  the  defendant  shall  procure  his  bail  to 
justify  in  four  days  exclusive  after  such  notice:  or  shall  add  other  bail, 
who  shall  justify  within  the  said  four  days:  but  if  such  exception  be  en- 
tered in  vacation,  and  notice  thereof  given  in  like  manner,  the  bail  put  in 
or  other  additional  bail,  shall  justify  upon  the  j^rs^  day  of  the  subsequent 
term."(??i)  The  notice  of  exception  to  bail  should  be  entitled  in  the  cause; 
and  if  not  so  entitled,  it  is  a  nullity,  although  served  upon  the  defendant's 
attorney  at  the  same  time  as  the  declaration. (?i)  And  notice  of  exception 
to  bail,  entitled  by  mistake  "In  the  Lord  Mayor's  court,"  instead  of  "In 
the  King's  Bench,"  is  a  nullity  ;  and  an  attachment  against  the  sheriff  was 

in  consequence  set  aside. (o) 
[  *257  ]       *In  the  Common  Pleas  it  is  a  rule,  that  in  all  cases  of  excep- 
tion to  bail,  such  exception  should  be  made,  either  in  the  filacer's 
book,  or  on  the  bail-piece,  if  taken  by  a  commissioner,  before  it  is  trans- 
mitted, and  afterwards  above  in  the  filacer's  book,  or  the  bail-piece  ;(a) 

[bb)  8  Durnf.  &  East,  258.    T  Durnf.  &  East,  109.    7  East,  607. 

(c)  Per  Cur.  E.  24  Geo.  III.  K  .B.  2  Black.  Rep.  1206,  C.  P. ;  and  see  2  Chit.  Rep.  82,  108,  9. 

(d)  R.  M.  8  Ann.  reg.  2,  (o),  K.  B.  1  Chit.  Rep.  174.  4  Dowl.  &  Ryl.  365.  5  Barn.  & 
Cres.  389.     8  Dowl.  &  Ryl.  149,  S.  C,  and  see  Append.  Chap.  XIL  §  23. 

(e)  R.  E.  2  Geo.  II.  K.  B. 

(/)  R.  M.  16  Car.  IL  K.  B.     1  Salk.  98.     6  Mod.  24.     2  East,  406,  7. 

{g)  R.  M.  8  Ann.  reg.  2,  K.  B. 

(A)  1  Chit.  Rep.  174.     4  Dowl.  &  Ryl.  365.  (?")  R.  M.  16  Car.  II.  K.  B. 

{k)  7  Durnf.  &  East,  109.     7  East,  607.     2  Chit.  Rep.  108,  9. 

\l)  R.  M.  8  Ann.  reg.  2,  (a).  R.  E.  2  Geo.  II.  R.  B.  5  Geo.  II.  reg.  1.  7  Durnf.  &  East, 
26.  5  Barn.  &  Cres.  389,  K.  B.  1  H.  Blac.  80,  106,  C.  P.,  and  see  Append.  Chap.  XII., 
I  24. 

[m)  R.  E.  5  Geo.  II.  reg.  1,  K.  B.  R.  T.  3  &  4  Geo.  IL,  C.  P.,  and  see  4  Barn.  &  Cres.  864. 
7  Dowl.  &  Ryl.  374,  S.  C. 

(nj  1  Chit.  Rep.  741.  (o)  Id.  374. 

{a)  Cas.  Pr.  C.  P.  33,  55.     Barnes,  101. 

[a]  If  bail  do  not  justify  within  the  time  allowed  by  the  rules  of  the  court,  they  cease  to 
be  bail,  and  cannot  be  held  by  the  plaintiff's  giving  notice  that  he  waives  the  exception. 
People  V.  The  Judges,  ^'c.,  1  Cow.  54.  Waterman  v.  Allen,  lb.  60.  Trotter  v.  Ilawle;/,  lb. 
226.  Thorp  v.  Faulkner,  2  Cow.  514.  Cooper  v.  Spicer,  lb.  619  ;  but  the  plaintiif  may 
waive  the  exception  without  requiring  the  justification,  provided  the  waiver  be  before  the 
expiration  of  the  time  of  justification.  The  People  v.  The  Supreme  Court,  20  Wend.  607. 
Boyd  v.  Weeks,  6  Hill,  71.  And  special  bail,  if  excepted  to,  must  justify  in  at  least  double 
the  amount  each.     Louis  v.  Mitchell,  2  Hill,  379. 


OF  SPECIAL  BAIL.  257 

and  notice  of  the  exception  must  also  be  given  in  ^vriting  to  the  defend- 
ant's attorney.(J)  But  notice  of  justification  of  bail  is  in  that  court  a 
waiver,  as  between  the  parties,  of  a  neglect  to  give  notice  of  exception ; 
though  it  is  not  a  waiver,  with  respect  to  the  sheriff,  so  as  to  support  a 
rule  to  bring  in  the  body.f/'c)  If  special  bail  put  in  by  the  defendant  be 
excepted  to,  the  defendant  in  that  court  shall  perfect  his  bail,  •within  four 
days  after  exception  taken  ;  in  default  whereof  the  plaintiff  shall  be  at  lib- 
erty to  proceed  upon  the  bail  bond  :{dd)  and  of  these  four  days,  the  first 
is  reckoned  exclusively,  and  the  last  inclusively  ;  so  that  where  the  excep- 
tion is  on  Wednesday,  an  attachment  cannot  regularly  issue  against  the 
sheriff  till  the  Tuesday  following,  Sunday  being  considered  as  a  dies 
non  ;[dd)  and  if  an  attachment  issue  on  the  fourth  day,  the  court  will  set 
it  aside,  without  first  calling  on  the  defendant  to  justify  bail.(6') 

In  the  exchequer,  it  is  a  rule,(/)  that  "in  every  action  where  special 
bail  is  put  in  before  the  barons  of  this  court,  the  plaintiff  may  except  there- 
to within  twenty  days  next  after  the  putting  in  of  such  bail,  and  notice 
thereof  given  in  writing  to  the  plaintiff,  his  attorney  or  clerk  in  court ;  but 
no  exception  to  bail  shall  be  admitted,  after  the  time  hereinbefore  limited: 
And  in  case  exception  shall  be  taken  to  the  bail,  within  the  time  aforesaid, 
and  notice  of  such  exception  given  in  writing  to  the  defendant's  attorney 
or  clerk  in  court,  the  defendant  shall  perfect  his  bail,  and  justify  the  same, 
(if  the  notice  be  given  in  term-time,)  within  four  days  after  such  notice; 
but  if  exception  be  taken  in  vacation  time,  and  notice  thereof  given  in  like 
manner,  the  defendant  shall  perfect  his  bail,  and  justify  the  same,  upon 
the  first  day  of  the  subsequent  term,  unless  the  plaintiff,  his  attorney  or 
clerk  in  court,  shall  consent  to  a  justification  before  one  of  the  barons  of 
this  court,  in  which  case  the  bail  shall  justify  themselves  before  one  of  the 
barons,  mth'm  four  days  after  notice  of  such  exception  in  writing  given  to 
the  defendant,  his  attorney  or  clerk  in  court :  and  in  default  of  the  de- 
fendant's justifying  his  bail,  in  either  of  the  said  cases,  the  plaintiff  shall 
be  at  liberty  to  proceed  on  the  bail  bond."  Notice  of  exception  is  not  en- 
tered, in  this  court,  on  the  bail-piece,  but  is  given  on  a  separate  paper,  to 
the  defendant's  attorney  or  clerk  in  court,  within  the  twenty  days;  except 
when  the  twentieth  day  falls  on  Sunday,  in  which  case  the  exception  may 
be  made  on  the  following  dsij.{f/) 

By  the  statute  4  &  5  W.  &  M.  c.  4,  §  2,  "  the  justices  of  the  courts  of 
King's  Bench,  &c.  shall  make  such  rules  and  orders,  for  the 
*justifying  of  such  bails  as  are  taken  by  a  commissioner  in  the  [  *258  ] 
country,  and  making  of  the  same  absolute,  as  to  them  shall  seem 
meet ;  so  as  the  cognizor  or  cognizors  of  such  bail  or  bails  be  not  com- 
pelled to  appear  in  person  in  the  said  courts,  to  justify  him  or  themselves  ; 
but  the  same  may,  and  is  thereby  directed  to  be  determined  by  afiidavit 
or  affidavits,  duly  taken  before  the  said  commissioners,  who  are  thereby 
empowered  and  required  to  take  the  same,  and  also  to  examine  the  sure- 
ties upon  oath,  touching  the  value  of  their  respective  estates ;  unless  the 
cognizor  or  cognizors  of  such  bail  do  live  Avithin  the  cities  of  London  and 
Westminster,  or  within  ten  miles  thereof."     And  by  the  rules  of  all  the 

(6)  Barnes,  88.  (cc)  1  II.  Blac.  80,  106.     1  Chit.  Rep.  174,  (a). 

[dd)  2  H.  Blac.  35. 

(e)  1  New  Rep.  C.  P.  139.     2  H.  Blac.  35,  semb.  contra. 

(/)  R.  T.  26  &  27  Geo.  11.  ^  1,  in  Scac.     Man.  Ex.  Appcn<l.  209. 

{</)  7  Durnf.  &  East,  20. 

Vol.  I.— 17 


258 


OF  SPECIAL  BAIL. 


courts,  "  every  commissioner  is  required  to  have  a  book,  kept  purposely 
for  entering  exactly  the  names  of  the  defendant  and  his  bail,  and  of  the 
plaintiff,  as  it  is  in  the  bail-piece,  and  the  time  of  the  taking  thereof,  and 
the  name  of  him  by  whom  such  bail  shall  be  transmitted;"  and  also,  in 
the  King's  ]iench  and  Exchequer,  the  name  of  the  attorney  for  the  de- 
fendant: and  the  plaintiff's  attorney  shall  be  at  liberty  to  repair  to  the 
commissioner's  book,  for  the  names  of  the  bail,  to  the  end  that  he  may  in- 
quire of  the  sufficiency  of  them  ;  and  if  they  are  found  insufficient,  he  may 
except  against  them,  within  twenty  days  after  the  said  bail  is  transmitted, 
and  notice  to  the  plaintiff  or  his  attorney  of  the  taking  thereof:  and  in 
that  case  the  defendant  must  either  put  in  better  bail,  or  the  cognizors  of 
such  bail  must  justify  themselves  in  open  court,  either  by  affidavit  taken 
before  such  commissioner  that  took  the  said  bail,  or  by  oath  made  in  court, 
or  before  one  of  the  judges  of  the  said  courts  respectively.(a) 

When  the  bail  already  put  in  do  not  mean  to  justify,  others  should  be 
added,  before  a  judge,  on  the  bail-piece  by  hill,  or  in  the  filacer's  book  by 
original,  in  the  King's  Bench ;  or,  in  the  Common  Pleas,  with  the  filacer 
or  his  clerk,  within  the  time  allowed  for  their  justification :  and  if  there 
be  not  time  enough,  the  defendant's  attorney  may  take  out  a  summons, 
and  obtain  an  order  for  further  time. (6)  The  summons  in  such  case,  if 
made  returnable  before  the  time  allowed  for  justifying  bail  has  expired, 
will  operate  as  a  stay  of  proceedings. (c)  It  seems  that,  generally  speak- 
ing, bail  are  not  in  a  condition  to  make  any  motion  to  the  court,  until 
they  have  justified. (c?)  And  when  bail  are  excepted  to,  they  are  consi- 
dered as  no  bail,  unless  they  justify  ;(e)  and  if  they  do  not  justify,  the 
court  will  order  their  names  to  be  struck  out  of  the  bail-piece :(/)  But 
until  this  be  done,  they  are  liable  to  be  proceeded  against  :[g)  and  if  it  be 
not  done  until  after  proceedings  have  been  had  against  them,  they  must 
pay  the  costs  of  such  proceedings. (A)  It  should  also  be  observed,  that 
one  who  is  bail,  being  interested,  cannot  be  a  witness  in  the  cause  for  his 
principal ;  nor  is  the  wife  of  bail  competent  to  give  evidence  for 
[  *259  ]  the  defendant,  on  *whose  behalf  her  husband  became  bound  •.{aa) 
and  therefore,  if  the  defendant  be  likely  to  have  occasion  to 
examine  one  of  his  bail  as  a  witness,  he  must  make  an  affidavit  that  such 
bail  will  be  a  material  witness  for  him  in  the  cause  ;{hh)  and  thereupon 
move  the  court  for  a  rule  to  show  cause,  why  his  name  should  not  be 
struck  out  of  the  bail-piece,  on  adding  and  justifying  another  in  his  stead; 
which  the  courts  will  order,  on  an  affidavit  of  service,  if  no  sufficient  cause 
be  shown  to  the  contrary.  (<?(?)  And  where  one  of  the  sureties  in  a  replevin 
bond  was  a  material  witness  in  the  cause,  the  court  granted  a  rule  for  sub- 
stituting another  surety  in  his  place,  upon  giving  the  defendant's  attorney 
notice  of  such  xv\Q.{dd) 

Previous  to  the  justification  of  bail,  there  should  be  a  notice,  setting 

(a)  R.  T.  8  W.  in.  reg.  3,  §  4,  5,  K.  B.  R.  10  March.  5  W.  &  M.  |  4,  5,  C.  P.  1  Burt. 
128,  9.     Man.  Ex.  Pr.  106,  7,  in  Scac. 

{b)  1  Cromp.  3  Ed.  62,  84,  &c.  (c)  6  Taunt.  240. 

{d)  n  Durnf.  &  East,  226.  (e)  7  East,  580. 

(/)  Say.  Rep.  58.     1  Wils.  337,  S.  C.     1  Ken.  382. 

lo)  1  Ken.  382.     Say.  Rep.  308,  9,  S.  C.     1  Taunt.  427. 

(A)  1  Blac.  Rep.  462.     4  Bur.  2107.     7  East,  581. 

\aa)  8  Dowl.  &  Ryl.  65.  (bb)  Barnes,  69. 

{cc)  2  Chit.  Rep.  103.  Whatley  v.  Fearnlcij,  E.  33  Geo.  III.  C.  P.  Imp.  C.  P.  7  Ed.  128  ; 
and  see  1  Phil.  Evid.  6  Ed.  127,  8. 

(^dd)  1  Bing.  92.     7  Moore,  439,  S.  C. 


OF  SPECIAL  BAIL.  250 

forth  that  the  bail  ah'cady  put  in  will,  on  a  certain  day,  justify  themselves 
in  open  court  ;{ee)  or  that  one  or  more  persons  will  l)o  added,  and  justify 
themselves  as  good  bail  for  the  defendant. (/f'  )[a]  This  notice  should  be 
l)YO'pcr\j  eiititled ;  and  therefore  in  an  action  at  the  suit  of  Uvo,  if  the 
notice  of  justification  and  reco;:^nizance  of  bail  are  at  the  suit  of  one  only, 
the  bail  may  be  treated  as  a  nullity  :(///y)  But  it  is  no  objection  to  the 
notice  of  justification,  that  it  states  that  two  were  added  bail,  when  in 
point  of  fact  one  only  was  added, (ZiZ!)  In  the  King's  Bench,  the  notice 
of  justification  should  regularly  contain  the  christian  and  surnames  of 
the  bail,(«)  and  also,  in  the  case  of  added  bail,  their  additions ;(/(:)  but  this 
does  not  seem  to  be  necessary,  in  the  case  of  justifying  bail  already  put 
in,  mIioso  additions  must  have  been  before  inserted  in  the  notice  of  bail.(?) 
The  same  distinction  was  formerly  observed  in  the  Common  Pleas  :(m) 
But  by  a  late  rule  of  that  court,(n)  "in  every  case  wherein  the  same  bail 
have  been  already  put  in,  or  wherein  other  bail  are  intended  to  be  added 
to  the  original  bail  put  in,  the  names  and  descriptions,  or  name  and 
description,  of  such  same  original  bail  intended  to  justify,  or  added  bail 
to  be  put  in  and  justify,  shall  be  inserted  in  every  ncftice  of  such  same  or 
added  bail  to  be  justified,  or  to  be  put  in  and  justified,  pursuant  to  such 
notice ;  and  that  m  default  thereof,  in  either  of  the  cases  aforesaid,  no 
rule  for  the  allowance  of  such  same  or  added  bail  shall  be  drawn  up."  If 
the  bail  were  put  in  before  a  commissioner,  the  notice  should  express  that 
they  will  justify  themselves  hy  affidavit  :{o)  And,  except  where  the  defend- 
ant is  a  prisoner,(  j;)  it  cannot  be  given  by  a  new  attorney,  without  an 
order  for  changing  the  attorney  before  employed. (^)  In  the 
King's  Bench,  Avhen  *thc  bail  already  put  in  intend  to  justify,  [  *2G0  ] 
one  day's  previous  notice  of  justification,  or  notice  for  the  next 
day,  is  deemed  sufficient  ;{a)  unless  iSimdrn/  intervene,  and  then  notife 
must  be  given  on  Saturdaij  for  Monday.  But  where  other  bail  are  added 
to  those  already  put  in,  there  must  be  tu'o  days'  previous  notice  of  justi- 
fication, one  inclusive  and  the  other  exclusive,  as  Monday  for  Wedncs- 
day,{b)  or,  if  Sunday  intervene,  Saturday  for  Tuesday^  &c.  In  the  Com- 
mon Pleas,  tivo  days'  notice  of  justification  must  be  given,  as  well  where 
the  bail  already  put  in  intend  to  justify,  as  in  the  case  of  added  bail.(c) 
And  Sunday  is  not  reckoned  a  day  for  this  purpose  :  therefore,  notice  of 
added  bail  on  Saturday  for  Monday  is  not  sufficient. (tZ)     If  the  time 

{ce)  Append.  Chap.  XII.  |  25. 

(/)  Id.  I  26,  7.  {uo)  2  Chit.  Rep.  77.  (hh)  Id.  86. 

(;)  T(i>/lorv.  Halliburion,  M.  55  Geo.  III.  K.  B.  1  Chit.  Rep.  351,  (a),  494,  in  noils.  9 
Moore,  579,  80. 

(k)  1  Chit.  Rep.  351,  (a). 

(I)  Imp.  K.  15.  10  Ed.  127.     Archb.  Forms,  50. 

(vi)  1  Bos.  &  Pul.  335.     9  Moore,  579,  80. 

(fl)  R.  M.  7  Geo.  IV.  C.  P.     4  Bing.  51,  2.  (o)  Append.  Chnp.  XII.  ^  25. 

(p)  1  Chit.  Rep.  291  ;  and  see  id.  88,  329.     2  Chit.  Rep.  93. 

(q)  Per  Cur.  M.  24  Geo.  III.  K.  B. 

(a)  Wriffht  v.  Let/,  II.  15  Geo.  III.  K.  B. 

{b)  Per  Cur.  M.  21  Geo.  III.  K.  B.     9  East,  435.     1  Chit.  Rep.  308. 

(c)  Barnes,  82,  88.     2  Bos.  &  Pul.  30.     1  Marsh.  322. 

\d)  Case  of  Overton's  bail,  M.  2G  Geo.  III.  K.  B.     Imp.  K.  B.  10  Ed.  129.     Barnes,  303. 

[a]  In  bail  to  the  action,  the  plaintilTis  entitled  to  two  persons  if  he  rciiuiro  it.  Lang  v. 
Billing^,  0  Mass.  480.  Kicc  v.  Ilosmcr,  12  lb.  130.  Wendozer  v.  Ball,  Coleman,  44.  But  if  one 
real  and  one  fictitious  person  be  given,  or  two  who  are  insufiicicnt,  the  bail  piece  does  not 
become  thereby  a  nullity.    Caincs  v.  Hunt,  8  Johns.  358.     Ferris  v.  P/iclps,  1  Johns.  Cas.  249. 


260 


OF  SPECIAL  BAIL. 


allowed  for  justifying  expire  on  a  day  in  term,  which  happens  to  be  31{d- 
suinnier  day,  or  any  other  hol3Mlay  when  the  court  does  not  sit,  the  notice 
of  justification,  in  the  King's  Bench,  should  be  for  the  day  they  ought  to 
justify,  to  prevent  an  assignment  of  the  bail  bond ;  and  the  bail  may  jus- 
tify the  next  day  as  a  matter  of  course  :{e)  but,  in  the  Common  Pleas,  the 
notice  ought  to  be  given  for  the  bail  to  justify  on  the  following  day.(/) 
In  the  Exchequer,  the  clerk  in  court  must  sign  all  the  proceedings  :  It  is 
not  sufBcient  that  it  be  done  by  the  attorney  or  agent  :(^)  Therefore,  bail 
in  that  court  were  not  allowed  to  justify,  when  the  notice  of  justification 
was  signed  by  a  person  describing  himself  as  the  defendant's  agent,  not 
being  an  attorney  of  the  Exchequer,  or  clerk  in  court. (7t)  And  a  notice 
to  justify  bail  on  a  day  on  which  the  court  sits  in  equity,  is  holden  to  be 
a  bad  notice. (t) 

When  bail  above  is  put  in,  and  exception  entered  in  vacation,  the  defend- 
ant's attorney,  in  the  King's  Bench,  must,  mth'm  four  days  after  the  excep- 
tion, give  notice  of  justification  of  the  same  bail  for  the  first  day  of  the  next 
term  ;  or  the  plaintiff  may  take  an  assignment  of  the  bail  bond  ;[k)  It  is  not 
necessary,  however,  that  the  sa^ne  bail  should  justify;  the  rule  of  court(Z) 
requiring,  that  if  the  exception  be  entered  in  vacation,  and  notice  thereof 
given,  the  bail  put  in,  or  other  additional  bail  shall  justify  on  the  first  day 
of  the  subsequent  term  :  and  therefore,  where  bail  were  excepted  to  in  vaca- 
tion, and  the  defendant  gave  four  days  notice  of  justication  for  the  first 
day  of  the  next  term,  but  ttvo  days  before  that  time  gave  notice  of  added 
bail,  the  court  of  King's  Bench  held,  that  the  latter  bail  were  entitled  to 
justify.(m)  In  the  Common  Pleas,  notice  of  justification  may  be  given  at 
any  time  in  vacation,  so  as  there  be  tivo  days  notice  before  the 
[  *2G1  ]  first  day  of  the  next  term  :(?i)  And,  in  that  court,  two  days  no- 
tice of  bail  is  *not  required  on  an  attachment,  but  reasonable 
notice  is  sufficient. (a)  In  the  Exchequer,  when  an  exception  is  entered  in 
vacation,  notice  of  justification  for  i\iQ  first  day  of  the  ensuing  term,  must 
be  o-iven  within  four  days  after  such  exception  ;(6)  and  the  bail  cannot  regu- 
larly justify  at  chambers  in  vacation,  without  consent,  except  in  the  case 
of  a  prisoner. (c) 

The  notice  of  justification  of  bail,  like  the  notice  of  putting  it  in,(c?) 
must  be  personally  served,  either  upon  the  plaintiff's  attorney,  or  upon 
some  clerk  or  servant  in  his  office.(^e)  And  service  of  the  notice  of  justifi- 
cation on  the  master  of  a  house,  in  which  the  attorney  had  an  office,  is  not 
sufficient,  unless  some  privity  be  shown  to  exist  between  them.(^)  But  if 
an  attorney  be  not  at  chambers  in  office  hours,  service  on  a  person  with 
whom  his  papers  are  directed  to  be  left,  is  deemed  sufficient  :{gy)  and  notice 
of  justification  may  be  stuck  up  in  the  King's  Bench  office,  for  the  plain- 
tiff's attorney,  who  had  no  known  place  of  residence  or  business. (/Ji)  This 
notice  must  have  been  formerly  served  before  te7i  o'clock  at  night,  in  the 

(e)  Per  Master  Forster,  T.  45  Geo.  III.  K.  B. 

(/)  8  Moore,  528.     1  Bing.  430,  S.  C.     10  Moore,  95.     2  Bing.  440,  S.  C. 

(</)  2  Chit.  Rep.  84.  (/*)  9  Price,  148.  (?)  2  Chit.  Rep.  84. 

{/(•)  9  East,  434.     1  Sel.  Pr.  2  Ed.  153,  accord. 

(I)  R.  E.  5  Geo.  II.  reg.  1,  K.  B. 

(Ill)  1  Chit.  Rep.  4.     2  Chit.  Rep.  84.     1  Dowl.  &  Ryl.  7. 

(«)  Barnes,  101. 

(a)  2  Blac.  Rep.  1110.  (6)  Man.  Ex.  Pr.  103.  (c)  1  Price,  2. 

((/)  Ante,  255.  (ee)  1  Chit.  Rep.  78.  (  /)  2  Chit.  Rep.  88. 

Iffl/)  Id.  87.  [hh)  Id.  89. 


OF  SPECIAL  EAIL.  261 

King's  Bench  ;(i)  or  7ihie  o'clock  at  night,  in  the  Common  Plcas.(^)  And, 
in  the  former  court,  it  was  hoklcn,  that  an  ufli(hivit  that  the  office  door  was 
shut,  and  the  notice  left  there,  before  ten  o'clock  at  night,  would  not  suf- 
fice,{Z)  unless  the  plaintiff's  attorney  had  afterwards  acknowledged  the 
receipt  of  it,(??z?«)  and  that  service  of  the  notice  of  justification  after  ten 
o'clock  was  bad,  though  the  person  on  whom  it  was  served  read,  or  even 
retained  it. {nn)  ]>ut  where  notice  of  bail  was  served  in  due  time,  by  leav- 
ing it  at  the  office  of  the  plaintiff's  attorney,  who  returned  it  the  next  day 
in  a  letter,  saying  that  he  should  not  accept  the  notice,  because  he  had 
taken  an  assignment  of  the  bail  bond,  but  the  letter  did  not  state  the  time 
when  the  notice  was  received,  this  was  deemed  a  sufficient  acknowledgment 
to  render  the  service  of  the  notice  effectual. (o)  And  now,  it  is  a  rule  in 
all  the  courts, (^>)  that,  "every  notice  for  justifying  bail  in  pirson,  shall  be 
served  before  before  eleven  o'clock  in  the  forenoon  of  the  day  on  which, 
according  to  the  present  practice,  such  notice  ought  to  be  served ;  except 
in  case  of  an  order  of  the  court  for  further  time,  in  which  case  it  shall  be 
sufficient  to  serve  the  notice  befere  three  o'clock  in  the  afternoon  of  the 
day  on  which  such  order  shall  be  granted :  and  in  all  the  cases  aforesaid, 
the  affidavit  of  service  shall  specify  the  time  of  day  at  which  notice  shall 
be  served."  This  rule,  however,  does  not  seem  to  apply  to  country  bail, 
■who  are  justified  by  affidavit. 

*The  court  in  which  bail  are  added  and  justified,  in  the  King's 
Bench,  (commonly  called  the  hail  court.)  is  now  usually  holden  [  *2G2  ] 
before  one  of  the  juilges  of  that  court,  in  pursuance  of  the  statute 
57  Geo.  III.  c.  11,  by  which  it  is  declared  to  be  lawful  "  for  any  one  of  the 
judges  of  the  King's  Bench,  when  occasion  shall  so  require,  to  sit  apart 
from  the  other  judges  of  the  same  court,  in  some  place  in  or  near  to  West- 
minster hall,  for  the  business  of  adding  and  justifying  special  bail,  in  causes 
depending  in  the  same  court,  whilst  others  of  the  judges  are  at  the  same 
time  proceeding  in  the  dispatch  of  the  other  business  of  the  same  court  in  " 
bank,  in  its  usual  place  of  sitting  for  that  purpose  in  Westminster  hall ; 
and  the  proceedings  so  had  by  and  before  such  one  of  the  judges,  so  sit- 
ting apart  for  those  purposes,  are  made  as  good  and  effectual  in  the  law, 
to  all  intents  and  purposes,  as  if  the  same  were  had  before  the  court 
assembled  and  sitting  as  usual,  in  its  ordinary  place  of  sitting  in  Westmin- 
ster hall."  In  the  Common  Pleas  and  Exchequer,  there  is  no  distinct  or 
or  separate  court  for  the  justification  of  bail. 

It  was  formerly  a  rule, (a)  made  in  consequence  of  the  obstruction  of  ac- 
cess to  Westminster  hall  during  Mr.  Hastimjs's  trial,  that  the  court  of 
King's  Bench  should  sit  in  Serjeant's  Inn  hall,  every  morning  during 
term,  from  half  past  ei[/ht  o'clock  till  ten,  for  the  purpose  of  taking  justifi- 
cations of  bail,  and  hearing  motions  of  course,  and  discharging  insolvent 
debtors;  and  that  it  should  adjourn  on  Mondays,  Fridays,  and  Saturdays, 
from  Serjeant's  Inn  to  Westminster  hall,  to  transact  the  usual  business, 

(t)  R.  M.  41  Geo.  III.  K.  B.     1  East,  132.     1  Chit.  Rep.  77,  (a). 

(k)  R.  E.  10  Geo.  II.  C.  P.     1  Chit.  Rep.  77,  (a). 

(l)  1  Chit.  Rep.  78  ;  and  see  id.  76,  (a),  79,  100,  294. 

(mm)  Id.  77,  100,  294.  (nn)  2  Chit.  Rep.  88. 

(o)  1  Chit.  Rep.  77,  (b),per  ITolrot/d,  J.,  but  see  3  Taunt.  234. 

(p)  R.  T.  59  Geo.  III.  K.  B.  2  Barn.  Aid.  818.  1  Chit.  Rep.  756.  2  Chit.  Rep.  374,  5. 
R.  M.  60  Geo.  III.  C.  P.  4  Moore,  2.  1  Brod.  &  Bing.  469.  R.  T.  59  Geo.  III.  E.xcheq.  8 
Price,  500  ;  and  see  5  Moore,  472,  3,  as  to  the  service  of  the  continuance  of  notice  of  bail. 

(a)  R.  E.  28  Geo.  III.  K.  B. 


2(52  OF  SPECIAL  BAIL. 

except  the  justifying  of  bail  and  discharging  insolvent  debtors,  which  busi- 
ness was  directed  to  be  transacted  entirely  at  Serjeant's  Inn  hall ;  and  it 
was  ordered,  that  the  bail  should  attend  before  half  past  nine,  and  that  if 
they  did  not,  they  should  not  be  permitted  to  justify.  This  rule  was 
repealed  by  a  subsef|uent  one,(6)  ordering,  that  the  sittings  of  the  court  in 
Serjeant's  In7i  hall,  should  be  discontinued ;  and  that  the  business  there 
transacted  should  be  done  in  the  court  of  King's  Bench  at  Westminster, 
where  one  of  the  judges  would  sit,  during  term-time,  every  morning  at  half 
past  nine  o'clock,  for  the  purpose  of  taking  the  justification  of  bail,  and  dis- 
charging insolvent  debtors ;  and  it  was  directed,  that  no  bail  should  be  per- 
mitted to  justify  after  ten  o'clock  :  And  accordingly,  when  the  bail  court 
was  established,  Mr.  Justice  Bayley,  sitting  in  that  court,  directed  it  to  be 
understood  in  future,  that  bail  intended  for  justification,  must  be  in  West- 
minster hall,  by  half  past  nine  o'clock  in  the  morning ;  and  that  if  the 
bail  were  not  ready,  and  the  papers  delivered  to  counsel  by  ten  o'clock,  no 
bail  would  be  taken  after  that  hour.(c)  When  there  are  but  few  bail,  it  is 
necessary  that  they  should  be  very  punctual  in  the  time  of  their  attendance  ; 
for  if  they  are  not  ready  when  the  judge  takes  his  seat,  he  will  not  wait  for 
them  till  ten  o'clock ;  but  when  the  bail  are  numerous,  the  exact  time  of 

their  attendance  is  not  so  material :  And,  on  the  last  day  of  term, 
[  *263  ]  bail  are  still  allowed  to  justify,  as  formerly,  in  full  court,  at  its  *rising, 

whether  by  affidavit  or  otherwise.  In  the  Common  Pleas,  it  is  a 
rule,(aa)  that  "bail  shall  justify  at  the  sitting  of  the  court  only,  and  at  no 
other  time,  except  on  the  last  day  of  term,  when  bail,  who  may  have  been 
prevented  from  attending  at  the  sitting  of  the  court,  shall  be  permitted  to 
justify  at  the  rising  of  the  court."  And,  in  the  Exchequer,  the  junior 
baron  attends  in  court  alone,  a  few  minutes  before  ten  o'clock,  every  morn- 
ing during  term,  for  the  purpose  of  taking  the  justification  of  bail,  and 
such  motions  as  are  merely  of  course  ;  and  it  is  expected  that  all  such 
matters  should  be  then  brought  on,  in  order  that  they  may  be  disposed  of 
before  the  court  is  full,  that  they  may  not  interfere  with  the  more  import- 
ant business.(5o)  This,  however,  does  not  extend  to  the  justification  of 
bail  by  affidavit. (cc)  But  no  bail  will  be  permitted  to  justify  in  person, 
unless  they  are  in  attendance,  and  counsel  instructed,  by  half  past  ten 
o'clock  at  the  latest. (t^) 

The  justification  of  bail  is  either  in  person  or  by  affidavit.  When  the 
bail  are  put  in  before  a  judge  in  town,  whether  by  bill  or  original,  they 
must  personally  appear  in  court ;  or,  by  consent, (^)  before  a  judge  at  his 
chambers:  and  in  order  to  justify  themselves,  must  swear  that  they  are 
housekeepers,  or  freeholders,  and,  if  more  than  tivo,  that  they  are  respec- 
tively worth  double  the  sum  sworn  to,  or  1000?.  beyond  that  sum,  if  it 
exceed  1000?., (/)  after  all  their  debts  are  paid,  or  over  and  above  all 

{b)  R.  T.  35  Geo.  III.  K.  B.,  which  rule  was  directed  by  that  of  H.  46  Geo.  III.  K.  B.,  to 
be  strictly  attended  to. 

{c)  H.  59  Geo.  III.  K.  B.  ;  and  see  1  Chit.  Rep.  1,  {a). 

[cia)  R.  M.  51  Geo.  III.  C.  P.  3  Taunt.  5G9.  2  Chit.  Rep.  378  ;  but  see  8  Taunt.  56, 
where  bail  were  permitted  to  justify,  under  particular  circumstances,  at  the  rising  of  the 
court,  before  the  last  day  of  term. 

{bb)  8  Price,  612  ;  and  see  R.  E.  46  Geo.  III.  in  Scac.  2  Chit.  Rep.  381.  2  Price,  327.  4 
Price,  155.     2  Chit.  Rep.  94. 

(cc)  3  Price,  35.  (d)  9  Price,  57. 

(e)  6  Mod.  24.     R.  E.  5  Geo.  II.  reg.  1,  (b),  K.  B. 

(/)  R.  M.  51  Geo.  III.  K.  B.  C.  P.  &  Excheq.     Ante,  251. 


OF  SPECIAL  BAIL.  263 

debts  or  demands  due  from  them  to  any  person  or  persons  whomsoever  ;(^) 
it  not  he'mcr  sufTicicnt  for  bail  to  swear  they  are  worth  a  certain  sum,  exclu- 
sive of  their  debts. ()^)  Bail  put  in  before  a  commissioner  must  justify 
themselves  in  the  same  manner,  where  they  live  in  London  or  Westmin- 
ster, or  within  ten  miles  thereof  :(i)  But  where  they  live  at  a  greater  dis- 
ta,nce,  they  may  be  justified  without  their  personal  attendance,  by  affida- 
vit^ duly  taken  before  the  commissioner,  of  their  being  housekeepers, 
kc.;{k)  and  they  may  be  so  justified,  though  the  defendant  has  been 
arrested  in  London,  in  a  town  cause ;(^)  nor  is  it  necessary  that,  in  bail 
by  affidavit,  both  the  bail  should  justify  l3cforc  the  same  commissioner.(wt) 
The  alhdavit  of  justification  must  state  the  addition  of  the  degree  or  mys- 
tery, as  well  as  the  names  and  places  of  residence  of  the  bail  ;(?i)  and  it 
is  usually  annexed  to  the  bail-piece,  and  a  copy  of  it  delivered 
to  the  plaintift"s  attorney,  at  the  time  of  giving  him  *notice  of  [*2G4] 
the  bail-piece  being  filed;  after  which,  if  an  exception  be  entered, 
which  seldom  happens,  the  affidavit  must  be  produced  and  read  in  court  as 
a  justification,  upon  notice  given  thereof,  and  an  affidavit  of  the  service 
of  such  notice.  An  affidavit  that  A.  and  B.  and  each  of  them,  were 
worth  double  the  sum  sworn  to  in  the  affidavit  to  hold  to  bail,  exclusive  of 
all  debts  due  to  any  other  person,  is  sufficient.(a)  And  the  affidavit  of 
justification  need  not  be  sworn  before  the  same  commissioner,  as  the  affi- 
davit of  taking  the  bail. (66)  In  the  Exchequer,  the  affidavit  of  justifica- 
tion of  country  bail  ought  to  be  taken  before  the  bail  commissioner ;  and 
the  affidavit  of  caption,  before  a  commissioner  for  taking  affidavits,  or  the 
baron  to  whom  the  bail  is  transmitted. (<?) 

When  the  bail  are  to  be  justified  in  court,  an  affidavit  must  be  made  of 
the  service  of  notice  of  justification  ;{d)  which  should  state  the  manner  in 
which  the  notice  of  justification  was  served.(e)  And  where  the  notice  of 
justification  was  served,  and  affidavit  of  the  service  thereof  made,  by  dif- 
ferent attorneys,  without  a  rule  to  change  the  former  attorney,  the  bail 
were  rejected.(/)  This  affidavit  should  be  properly  entitled  :{gg)  and  is 
delivered  to  counsel  in  the  King's  Bench,  or  a  serjeant  in  the  Common 
Pleas,  with  a  brief  or  motion  paper,  indorsed  "to  move  to  justify  the 
within  bail:"  And  at  the  time  appointed  by  the  notice  of  justification, 
they  are  allowed  to  justify,  if  present,  as  a  matter  of  course ;  unless  they 
are  opposed  by  counsel  vivd  voce,  or,  if  taken  before  a  commissioner,  upon 
cross  affidavits. (/Jt)  If  bail  are  to  be  added,  they  ought  to  attend  for  the 
purpose,  in  the  King's  Bench,  before  the  judge  goes  into  the  bail  court, 
otherwise  they  are  themselves  delayed,  and  the  business  is  impeded :  and 
care  should  be  taken,  in  actions  by  hill,  to  have  the  bail-piece  in  court, 
otherwise  the  bail  cannot  justify  :(i7)  In  actions  by  original,  the  filacer 
attends  with  his  book.  And  when  bail  are  opposed  in  two  actions,  they 
must  be  opposed  in  each  separately.(/cA;)     In  the  King's  Bench,  opposition 

(</)  R.  T.  8  W.  IIL  reg.  3,  §  5,  (c).  R.  E.  5  Geo.  II.  reg.  1,  (i),  K.  D.  R.  E.  33  Geo.  III. 
in  Scac.     Man.  Ex.  Append.  217. 

(A)  4  Taunt.  704.  (,)  Stat.  4  &  5  W.  &  M.  c.  4,  §  2. 

{k)  Id.  ihid.  R.  T.  8  W.  III.  rcg.  3,  g  5.  R.  E.  5  Geo.  II.  reg.  1,  (6),  K.  B.  :  and  see 
Append.  Chap.  XII.  g  30. 

{I)  5  Price,  13. 

(m)  2  Chit.  Rep.  91.     Ante,  250.  (n)  1  Chit.  Rep.  292. 

(a)  2  Chit.  Rep.  95.  •  (W)  Id.  9i. 

(c)  1  M'Clei.  &  Y.  149.  (d)  Append.  Chap.  XII.  3  28,  9. 

(e)  1  Chit.  Rep.  43,  77,  8,  9,  100.  Ante,  2Q\.          {/)  2  Chit.  Rep.  37. 

{gg)  1  Chit.  Rep.  1.  Ihh)  Append.  Chap.  XII.  ?  31. 

(it)  2  Chit.  Rep.  83.  [kk)  Id.  94. 


2(54  OF  SPECIAL  BAIL. 

to  bail  must  be  before  justification;  and  a  mistake  of  counsel,  in  not 
opposing  in  time,  will  not  be  a  ground  for  being  afterwards  permitted  to 
examine  them.(Z)  So,  in  the  Common  Pleas,  if  bail  justify,  without  the 
observation  of  counsel  instructed  to  oppose  them,  the  court  will  not  require 
them  to  come  up  again,  and  justify  de  novo.[ni) 

The  common  grounds  of  opposing  bail  are  first,  that  there  is  some 
defect  in  the  hail-piece.  But  where  the  bail  piece  was  not  entitled  of  the 
court,  or  in  the  cause,(7?)  or  it  did  not  appear  thereby,  that  the  person 
before  whom  the  bail  was  taken  was  a  commissioner,(o)  time  was  given,  in 
the  King's  Bench,  to  amend  the  defect.  And  when  bail  has  been 
[  *265  ]  put  in  by  a  *wrong  name,  a  misnomer  in  the  bail-piece  may  be 
amended,  if  the  bail  be  rightly  named  in  the  notice. (a) 

Secondly,  It  is  a  good  ground  of  opposition,  that  there  is  some  defect  in 
the  notice  of  bail ;  which  should  truly  and  accurately  describe  the  persons 
intended  to  justify,  so  that  the  plaintiiFmay  not  be  misled:  and  therefore, 
where  one  of  the  bail  was  described  as  the  housekeeper,  and  it  turned  out 
that  his  father  was  really  the  occupier  of  the  house,  the  bail  court  would  not 
permit  him  to  justify,  nor  grant  time  to  add  and  justify  another,  without  an 
affidavit  repelling  all  intention  to  mislead.(6)  So,  notice  given  of  bail  as  put 
in  before  one  judge,  when  in  fact  they  were  put  in  before  another,  is  irregu- 
lar :(cc)  And,  in  the  King's  Bench,  any  material  defect  in  the  notice  of  bail, 
as  that  it  is  not  properly  entitled,(tZcZ)  or  that  it  does  not  set  forth  with  truth 
and  certainty,  the  names, (e?)  places  of  abode, (^)and  degrees  or  mysteries(^^) 
of  the  bail,  Avill  be  a  good  ground  for  opposing  them ;  provided  it  be  verified 
by  afiidavit,  that  the  defendant's  attorney  has  not  from  that  cause  been 
able  to  find  them,  and  make  the  requisite  inquiries  into  their  sufiiciency : 
But  where  that  is  not  the  case,  and  there  is  no  ground  to  suspect  fraud, 
objections  of  this  sort  are  in  general  overruled,  or  the  court  will  give  time 
to  correct  them. 

Thirdly,  Bail  may  be  opposed,  on  account  of  some  defect  in  the/orm,  or 
irregularity  in  the  service  of  notice  of  justification ;  or  in  the  affidavit  of 
such  service. (7i)  In  the  King's  Bench,  we  have  seen,(i)  the  christian  and 
surnames  of  the  bail  should  regularly  be  inserted  in  the  notice  of  justifi- 
cation, as  well  as  in  the  notice  of  their  being  put  in:(Z:)  And  it  is  a  good 
ground  of  rejection,  that  one  of  the  bail  referred  to  in  the  notice,  as  the 
bail  put  in  before,  is  described  by  a  diiferent  christian  name  from  that 
which  was  before  given  him.(/Z)  But  it  is  no  ground  for  rejecting  bail, 
that  the  plaintifi"'s  and  defendant's  names  are  transposed,  in  the  notice  of 
justification. (ww)  It  is  said,  that  the  notice  of  justification  ought  to  con- 
tain the  addition  of  the  bail:(w?i)  but  this,  it  is  conceived,  only  applies  to 

(/)  1  Chit.  Rep.  83 ;  but  see  2  Chit.  Rep.  98,  semb.  contra, 
{m)  4  Taunt.  666.  {n)  1  Chit.  Rep.  79. 

(o)  Id.  9. 

(a)  1  Bos.  &  Pul.  31.    4  Moore,  65;  and  see  1  Price,  385.    2  Chit.  Rep.  81.    Ante,  252,  3. 
{b)  1  Chit.  Rep.  88.  {cc)  2  Chit.  Rep.  109. 

{(Id)  LoflFt,  237.  [ee)  Id.  187.     1  Moore,  126;  but  see  4  Dowl.  &  Rjl.  30. 

(/)  Lofft,  72,  195  ;  and  see  1  Chit.  Rep.  492,  3,  4.     Ante,  253,  4,  5. 
{gg)  Lofft,  187,  281  ;  and  see  2  Taunt.  173,  4.     1  Chit.  Rep.  494,  in  notis. 
(h)  Ante,  2Q4:.  (i)Ante,2bQ. 

[k)  Taylor  v.  Halliburton,  M.  55  Geo.  III.  K.  B.  1  Chit.  Rep.  351,  («),  494,  in  notis.  9 
Moore,  579,  80.  , 

{U)  1  Chit.  Rep.  494,  in  notis. 
{mm)  2  Chit.  Rep.  86. 
{n)i)  Id.  351,  [a). 


OF  SPECIAL  BAIL.  265 

added  bail ;  for  it  seems  that,  in  the  King's  Bench,  when  the  same  bail 
are  regularly  put  in  and  excepted  to,  the  defendant  need  not  describe 
them  in  his  notice  of  justification. (o)  And  wliere  the  notice  of  justifica- 
tion did  not  state  the  addition  of  the  bail,  but  described  him,  contrary  to 
the  fact,  as  bail  of  whom  notice  had  before  been  given,  time  was  allowed 
to  justify,  on  condition  that  the  defendant  should  produce  an 
affidavit  that  the  error  was  accidental. (^j)  In  the  *Common  [  *266  ] 
Pleas,  we  have  seen(a)  that,  by  a  late  rule  of  court,  the  names 
and  descriptions  of  the  original,  or  added,  bail  must  in  all  cases  be  in- 
serted in  the  notice  of  justification.  And  bail  by  aflidavit  were  rejected 
in  that  court,  on  the  ground  that  one  of  them  was  described  in  the  notice 
of  justification  as  J.  M.  generally  but  in  the  affidavit  of  justification,  as  J. 
M.  the  younger.(6)  But,  previously  to  the  above  rule,  where  bail  had 
been  misnamed  in  the  notice  of  justification,  and  was  sworn  accordingly, 
the  court  of  Common  Pleas  permitted  him  to  justify,  on  his  swearing  that 
he  had  sufficient  property;  it  appearing  that  he  had  been  found  by  the 
party  inquiring  after  him,  with  reference  to  his  becoming  bail :((•)  And 
the  want  of  a  description  in  the  notice  of  justification  of  bail  already  put 
in,  was  holden  to  be  waived  by  the  plaintift's  having  excepted  to  them;  as 
he  must  have  seen,  when  he  entered  his  exception  in  the  filacer's  book, 
where  the  bail  lived,  so  as  to  give  him  an  opportunity  of  inquiring  after 
thera.((/)  When  there  is  a  wrong  christian  name  in  the  notice  of  justifi- 
cation, the  bail  court  will  allow  time  to  amend  and  justify  :(e)  And  where, 
in  the  case  of  bail  by  affidavit,  the  name  of  the  bail  were  omitted  in  the 
notice  of  justification,  through  the  neglect  of  the  attorney  in  the  country, 
the  court  gave  two  day's  time  to  serve  fresh  notice,  there  being  no  sug- 
gestion that  the  omission  was  for  the  purpose  of  delay,(/)  But  the  bail 
court  will  not  allow  time  to  correct  a  misnomer,  in  the  notice  of  justifica- 
tion of  bail  by  habeas  corpus.{g)  In  the  King's  Bench,  notice  of  justifi- 
cation by  three  bail,  has  been  holden  good  ;(A)  though  it  is  otherwise  in 
the  Common  Pleas  :(z)  but  notice  that  A.  B.  and  C,  or  tivo  of  them,  will 
justify,  is  irregular. (/c)  And,  in  the  latter  court,  special  bail  are  allowed 
to  justif}'-,  although  they  did  not  actually  become  bail,  before  the  notice  of 
their  justification  was  delivered  to  the  plaintifi"s  attorney  or  agent, (/) 

It  has  been  already  shown,  in  what  manner  the  notice  of  justification 
should  be  served  :(??i)  and  if  the  service  of  such  notice,  or  the  affidavit 
thereof,  be  defective,  the  bail  will  be  rejected ;  unless  time  be  askctl  by 
counsel  to  rectify  the  mistake,  which  is  in  general  granted,  on  condition 
of  putting  the  plaintiff  in  the  same  situation  as  he  Avould  have  been  in,  if 
the  mistake  had  not  happened.  Indeed,  this  is  quite  a  matter  of  course, 
if  the  bail  be  not  opposed,  and  the  objection  arise  from  a  mere  mistake  or 
clerical  error,  as  where  the  aflidavit  of  service  is  not  properly  entitlcd.(7j) 

(o)  Imp.  K.  B.  10  Ed.  127.     Arclib.  Forms,  50.     Ante,  259. 
{p)  2  Chit.  Rep.  86.  (a)  Ante,  259. 

(6)  5  Taunt.  854.     1  Marsh.  386,  S.  C.  (c)  7  Moore,  282. 

\d)  1  Taunt.  17,  18.  (e)  1  Chit.  Rep.  351,  (a). 

{f)Id.2b\.  {ff)Id.1G. 

(A)  LofiFt,  26.     Forrest,  138.     Wigbtw.  110.     Ante,245. 
(t)  2  Blac.  Rep.  1122.     1  Chit.  Rep.  601,  2,  (a).     Ante,  245. 
{k)  Lofft,  26. 

(/)  R.  M.  37  Geo.  III.  C.  P.  1  Bos.  &  Pul.  6G0.  R.  M.  18  Geo.  lU.  C.  P.  IH.  Blac.  291, 
contra. 

(m)  Ante,  2G1.  (n)  1  Chit.  Rep.  1. 


20(3  OP  SPECIAL  BAIL. 

And  where  there  were  tivo  different  notices  of  justification,  one  being  of 
added  bail,  and  the  affidavit  of  service  did  not  designate  which  of  the 
notices  had  been  served  on  the  plaintiff's  attorney,  it  was  holden  that  the 
affidavit  was  defective  and  must  be  amended  and  re-sworn,  before  the  bail 

could  justify. (o)  An  *affidavit  however,  of  the  service  of  notice 
[  *267  ]  of  justification,  wherein  the  deponent  was  described  by  mistake 

as  agent  for  the  plaintiff,  instead  of  the  defendant,  was  allowed 
to  pass  conditionally,  provided,  before  the  rule  for  allowance  should  be 
draAvn  up,  a  fresh  affidavit  was  filed,  in  which  the  mistake  should  be  cor- 
rected.(a) 

Fourthly,  When  bail  are  taken  before  a  commissioner,  they  may  be  op- 
posed on  account  of  a  defect  in  the  affidavit  of  caption,  or  justification : 
And  an  affidavit  of  justification,  stating  the  names  and  places  of  residence  of 
the  bail,  without  the  addition  of  their  degree,  has  been  deemed  insufficient  ;{b) 
but  time  was  allowed  to  amend  the  affidavit  :(5)  And  the  like  indulgence 
was  given,  where  one  of  the  bail  was  named  Lloyd,  with  a  double  LI  in  the 
notice  of  bail,  and  Loyd  with  a  single  L  in  the  affidavit  of  justification. (c) 
In  the  King's  Bench,  where  the  same  persons  are  bail  in  more  actions  than 
one,  it  is  sufficient  for  them  to  swear,  in  the  affidavit  of  justification  in  each 
action,  that  they  are  worth  double  the  amount  of  the  sum  sworn  to  in  that 
action,  afterpayment  of  all  their  just  debts  ;((/)  but,  in  the  Common  Pleas, 
each  affidavit  ought  to  state,  that  they  are  worth  double  the  amount  of  the 
debts,  in  all  the  actions  wherein  they  offer  to  become  bail  ;(e)  unless  where 
actions  are  brought  against  different  parties,  on  the  same  bill  of  exchange  or 
promissory  note  ;(/)  And,  in  the  Exchequer,  where  one  indorser  had  be- 
come bail  for  another,  on  the  same  bill,  and  both  of  them  were  also  bail  in 
other  actions,  the  court  held,  that  they  ought  to  swear  themselves  worth 
double  the  sum  sworn  to,  over  and  above  all,  their  just  debts,  and  the  sums 
for  which  they  had  justified  in  the  other  actions ;  and  the  bail,  who  was  an 
indorser,  should  also  have  included  in  his  affidavit,  the  amount  of  the  bill  on 
which  the  action  was  brought. (^)  An  affidavit  of  the  caption,  or  justifica- 
tion of  country  bail  must  state,  in  the  jurat,  the  names  of  all  the  depo- 
nents,(7i)  and  the  place  at  which  it  was  sworn  :(^')  but  time  will  be  allowed 
to  amend  the  defect. (z)  It  is  said,  however,  that  on  bail  by  affidavit,  time 
will  not  be  given  to  amend  a  mistake  in  i\\e  jurat,  occasioned  by  the  error 
of  the  commissioner  in  the  country,  unless  the  defendant  produce  an  affi- 
davit of  merits  :(,^)  And  it  is  a  rule,  in  these  cases,  that  the  defendant's 
attorney  must  pay  the  costs  of  the  amendment. 

Fifthly,  It  is  a  good  ground  for  opposing  bail,  that  he  is  a  peer  of  the 
realm,  or  member  of  the  house  of  commons  ;(Z)  or  an  attorney,  or  attorney's 
clerk ;(?)  or  a  sheriff's  officer,  or  bailiff,  or  other  person  concerned  in  the 
execution  of  process.(Z)[A]     And  where  one  of  the  bail  was  an  attorney, 

(o)  Id.  43.  (a)  1  Chit.  Rep.  496,  [a).  [b)  Id.  292.  (c)  Id.  495,  6. 

{d)  Per  Grose,  J.,  after  referring  to  the  Master,  M.  42  Geo.  III.  K.  B.     1  Chit.  Rep.  305. 

(e)  3  Bos.  &  PuL  39. 

(/)  7  Taunt.  324.     1  Moore,  29,  S.  C. ;  and  see  1  Chit.  Rep.  306,  (a). 

Ig)  3  Price,  261  ;  and  see  1  Chit.  Rep.  306,  {a). 

(h)  11  Price,  509. 

(i)  1  Chit.  Rep.  10,  495  ;  and  see  id.  495,  (a).    1  Price,  662. 

(k)  2  Dowl.  &  Rjl.  362  ;  and  see  2  Chit.  Rep.  83,  {a).  (Z)  Ante,  247. 

[a]  In  Vermont,  the  sheriff  may  himself  become  bail,  by  indorsing  his  name  on  the  back 
of  the  writ  in  the  manner  required  by  statute.  Meriam  v.  Armstrong,  7  Washb.  26.  And  in 
North  Carolina  and  Tennessee,  where  he  lets  a  prisoner  go  at  large  without  taking  bail,  or 


OF  SPECIAL  HAIL.  267 

the  bail  court  refused  time  to  add  and  justify  another ;  holding, 
that  the  ^defendant  ought  to  have  known  that  circumstance,  he-  [  *2G8  ] 
fore  notice  was  given. (tf)  But  an  attorney  or  his  clerk,  ^ve  have 
secn,(<^)  may  he  put  in  as  bail,  thougli  he  is  n<jt  in  general  allowed  to  jus- 
tify :  and  an  attorney  who  had  not  practised  for  sir  years,  has  been  per- 
mitted to  justify  as  bail.(t')  So,  the  husband  of  a  defendant,  who  had 
married  after  the  arrest,  and  before  the  return  of  the  writ,  has  been  allowed 
to  be  bail.((/) 

Sixthly,  it  is  a  rule  in  the  Common  Pleas,(g)and  has  become  the  settled 
practice  of  the  King's  Bench, (/)  that  "no  person  shall  be  permitted  to 
justify  himself  as  good  and  sullicicnt  bail,  if  he  shall  have  been  indemnified 
for  so  doing,  by  the  attorney  concerned  for  the  defendant."  Under  this 
rule,  the  court  of  Common  Pleas  rejected  bail,  who  had  received  a  verbal 
promise  of  indemnity  from  the  defendant's  attorney,  though  they  allowed 
the  defendant  time  to  put  in  fresh  bail:(^)  In  the  King's  Bench,  bail  was 
rejected,  where  he  was  to  receive  a  commission  on  the  amount  for  which 
he  proposed  to  justify. (/t/i)  And  where  it  appeared,  after  bail  had  justified, 
that  money  had  been  given  to  one  of  them  for  his  trouble  and  loss  of  time 
in  coming  up  to  justify,  the  court,  though  they  did  not  set  aside  the  allow- 
ance of  bail,  imposed  terms  upon  the  defendant,  of  producing  an  affidavit  of 
merits,  bringing  the  sum  sworn  into  court,  and  taking  short  notice  of 
trial. (n)  But  it  is  no  objection  to  bail,  that  they  are  indemnified  by  the 
sherifi"8  o^cer,{kk)  or  a  third  person. "(/^) 

Seventhly,  One  of  the  principal  objections  to  bail  is,  that  they  are  not 
housekeepers,  or  freeJiolders.{m)  And  bail  cannot  justify  as  a  housekeeper, 
in  respect  of  a  house  which  he  has  taken,  if  prevented  from  obtaining  pos- 
session by  a  death  in  the  family  of  the  former  tenant ;(»)  or  who  has  ceased 
to  be  a  house-keeper,  since  he  agreed  to  become  bail:(o)  nor  the  occu- 
pier of  a  tap  connected  with  a  tavern,  the  license  being  taken  out  in  the 
name  of  the  tavern-keeper  ;(p)  nor  the  occupier,  under  a  lease  of  every 
room  in  a  house  except  one,  which  is  reserved  for  his  landlord,  who  pays 
the  taxes  :{q)  Also,  bail  was  rejected,  who  had  rented  a  house,  and  under- 
let the  same  to  another,  who  paid  the  taxes,  and  let  the  first  floor  to  the 
bail ;  but  the  landlord  refusing  to  accept  the  undertenant,  the  rent  for  the 
Avhole  house  was  paid  by  the  latter  to  the  bail,  who  paid  it  over  to  the 
landlord.(r)  If  the  bail  however  are  housekeepers,  the  rent  of  their  houses 
is  immaterial,  though  it  be  under  ten  pounds  ;(8)  nor  is  it  necessary  that 
they  should  have  been  assessed  to  the  poor  s  rate:(0  though  bail  have  been 

((/)  1  Chit.  Rep.  8.  (h)  Ante,  247. 

(c)  1  Chit.  Rep.  T14,  ((/).  Ante,  247,  (w).  {'/)  2  Chit.  Rep.  94. 

(c)  R.  H.  37  Geo.  III.  C.  P. 

(/)  Preston  v.  BunUey,  M.  24  Geo.  III.  K.  B. 

((/)  1  Bos.  &  Pul.  103  ;  and  see  8  Jloore,  51G.    1  Bing.  423,  S.  C. 

\hh)  7  Dowl.  k  Ryl.  783.  (»)  2  Dowl.  &  Ryl.  253. 

(kk)  1  Chit.  Rep.  714,  {a).  (II)  1  Bos.  &  Pul.  21. 

\m)  1  Chit.  Rep.  7,  88,  144.    Ante,  246.  (n)  1  Chit.  Rep.  288. 

(o)  Id.  6.  (p)  Id.  316.  (q)  Id.  502. 

(r)  Id.  (a).  (s)  Lofft.  148. 

(<)  Id.  328. 


takes  a  bail  bond  and  does  not  assij^n  it;  or  takes  insufficient  bail,  and  exception  is  made 
thereto,  it  is  said  he  becomes  himself  special  bail.  Hart  v.  Lanier,  3  Hawks.  244.  Gray 
V.  Hoover,  4  Dev.  473.  Sluart  v.  Fitzgerald,  1  Car.  Law  Reps.  236.  MKrc  v.  Love,  2  Overt. 
243.  In  New  Hampshire,  a  deputy  shcrilT  may  become  bail.  Plunimer  v.  Brewster,  2  New 
Hamp.  473  ;  but,  generally  speaking,  the  Knglish  rule  prevails.  Coster  y.  Watson,  15  Johns. 
535.   Bailey  v.  Warden,  20  lb.  129.    Craii/  v.  Scott,  1  Wend.  35.   Brown  v.  Lord,  Kirby,  209. 


2G8  OF  SPECIAL  BAIL. 

rejected,  for  not  paying  arrears  of  Icing's  taxes. (m)  In  the  Com- 
[  *269  ]  mon  Pleas,  the  court  allowed  *a  person  to  justify  as  bail,  in  re- 
spect of  a  house  kept  by  him  and  his  partner,  who  carried  on 
business  therein,  where  the  rent  and  taxes  were  paid  by  them  jointly,  and 
his  partner  resided  in  the  house,  though  he  lodged  himself  at  a  considera- 
ble distance  therefrom  :(a)  And  where  a  person  had  taken  a  house,  occu- 
pied by  several  tenants  or  lodgers,  from  one  of  whom  he  had  received 
rent,  he  was  holden  to  be  qualified  to  justify  as  bail,  although  he  had  not 
occupied  the  house  himself.(Z>)  The  plaintifi"  also,  in  that  court,  may 
waive  the  qualification  of  the  bail  being  housekeepers,  &c.  in  which  case 
they  only  swear,  in  justifying,  to  the  amount  of  their  property. (c)  In  the 
Exche(![uer,  a  person  employed  by  the  commissioners  in  the  repair  of 
water-works,  who  was  allowed  a  house  to  live  in  during  the  period  of  his 
employment,  for  which  he  paid  no  rent  or  taxes,  was  permitted  to  justify 
as  bail.(f?)  But  a  person  living  in  lodgings  in  London^  was  not  allowed  to 
justify  as  bail,  although  he  was  a  housekeeper  in  8cotland.{e)  Where  a 
bail  has  ceased  to  be  a  housekeeper,  at  the  time  he  comes  up  to  justify, 
the  bail  court  will  give  time  to  add  and  justify  another  in  his  stead :(/) 
but  where  notice  had  been  given  of  bail,  one  of  whom  was  notoriously  not 
a  housekeeper,  and  had  refused  to  become  bail  on  that  ground,  after  he 
had  agreed  to  do  so,  the  bail  court  refused  time  to  add  and  justify  ano- 
ther.(^) 

Eighthly,  It  is  a  good  objection  to  the  sufficiently  of  bail,  that  they  are 
not  respectively  worth  double  the  amount  of  the  sum  sworn  to,  or  07ie 
thousand  pounds  beyond  that  sum,  if  it  exceed  one  thousand  pounds,  after 
payment  of  all  their  debts.  To  this  head  may  be  referred  banJcriqyts,  who 
have  not  obtained  their  certificates,(7i)  or  such  as  have  been  twice  bankrupts, 
and  not  paid  fifteen  shillings  in  the  pound  under  the  second  commission, (e) 
and  insolvent  debtors,  discharged  under  the  general  insolvent  act,  who  are 
not  allowed  to  be  bail,  until  they  have  paid  all  their  debts. (A")  And  a  bail 
who  had  been  recently  a  bankrupt,  was  not  permitted  to  justify,  although  he 
swore  that  he  had  since  acquired  property,  by  the  bounty  of  his  friends,  to 
the  requisite  amount. (Z)  So,  where  one  of  the  bail  admitted  on  examina- 
tion that  he  was  a  certificated  bankrupt,  but  had  since  been  arrested,  and 
could  not  remember  how  often,  but  admitted  that  it  was  at  least  six  times, 
the  court  rejected  both,  and  would  not  grant  further  time  to  add  and  justify 
other  bail.(?w)  And  a  bail  was  not  permitted  to  justify,  who  had  recently 
been  bankrupt,  and  obtained  his  certificate,  but  did  not  know  whether  his 
estate  had  paid  any  dividend  ;(?i)  or  who  could  not  say  whether,  during  the 
interval  between  his  bankruptcy  and  certificate,  he  had  or  had  not 
[  *270  ]  justified  as  bail.(o)  But  the  bankruptcy  is  of  itself  an  *objection, 
when  the  party  has  obtained  his  certificate  ;{aa)  and  an  insolvent 

(u)  1  Chit.  Rep.  309. 

{a)  1  Moore,  529;  and  see  8  Moore,  525.    1  Bing.  430,  S.  C.  accord. 

(b)  8  Moore,  365.  (e)  5  Taunt.  174. 

(d)  2  Price,  8  ;  and  see  1  Chit.  Rep.  502.  (e)  11  Price,  158. 

{/)  1  Chit.  Rep.  6 ;  and  see  id.  288,  316.    11  Price,  158. 

iff)  1  Chit.  Rep.  7  ;  and  see  id.  144.  (A)  Id.  9.    Ante,  247. 

(?)  Mountain  v.  Wilkins,  M.  21  Geo.  III.  K.  B.    Ante,  247.    1  Chit.  Rep.  293. 

{k)  1  Chit.  Rep.  9;  and  see  id.  143.  Ante,  247. 

(/)  2  Chit.  Rep.  78.  (m)  1  Chit.  Rep.  3. 

(n)  Id.  288.  (o)  Id.  289. 

{aa)  1  Chit.  Rep.  9  ;  but  see  id.  3. 


OF  SPECIAL  BAIL.  270 

debtor  discharged  under  the  insolvent  act,  may  l)e  bail,  after  he  has  paid 
all  his  debts.(i) 

A  bail  has  also  been  rejected,  on  the  grouml  of  insiifTiciency,  who  ad- 
mitted that  he  had  been  bail  before,  but  did  not  know  in  how  many 
actions,  or  for  what  sums  ;{c)  or  swore,  that  he  did  not  know  whether  ho 
had  Keen  arrested  or  not,  during  the  space  of  two  years  ;{d)  or  who  had 
Buffered  his  father  to  receive  parochial  relicf,(t?)  or  his  children  to  be  in  the 
workhouse,  without  assigning  a  sufficient  reason  ;(/)or  because  his  name  was 
on  the  book's  of  the  King's  Bench  prison  as  a  prisoner,  and  the  action, 
though  supersedeable,  was  not  actually  superseded. (7)  And  it  seems,  that 
when  the  court  orders  the  bail  to  submit  their  property  to  inspection,  in 
order  to  ascertain  its  sufficiency  to  enable  them  to  justify,  the  plaintiff  may 
cause  it  to  be  appraised  by  a  broker.(/i)  But  it  is  no  objection  to  bail,  that 
he  had  been  transported  thirty  years  before. (e)  And  it  seems,  that  the  cir- 
cumstance of  not  knowing  the  defendant,  being  only  a  mark  of  suspicion, 
may  be  explained  away.(/c)  So,  it  is  no  objection  to  bail,  that  thev  are 
liable  asindorsersof  the  bill  of  exchange  on  which  the  action  is  browjht.{l) 
But  it  is  said  to  be  a  general  rule,  that  so  long  as  there  are  outstandmg  dis- 
honoured bills  which  are  not  renewed,  nor  the  right  of  proceeding  upon 
them  suspended,  a  person  liable  thereon  cannot  justify  as  bail.(??j)  And  a 
bail  was  rejected,  who  had  been  liable  to  the  sheriff  in  a  former  action,  and 
not  excepted  to,  it  appearing  that  his  property  was  not  sufficient  for  both 
actions  ;(n)  though  time  was  allowed  to  add  and  justify  another  bail.(/<)  It 
has  been  doubted,  in  the  Common  Pleas,  whether  it  is  a  sufficient  objection 
to  bail,  that  he  lives  within  the  verge  of  the  court  ;{oo)  but  it  seems  that 
this,  without  other  suspicious  circumstances,  such  as  his  being  much  in 
debt  and  the  like,  is  not  sufficient. (/>)  In  the  case  of  bail  by  affidavit, 
they  will  not  be  allowed  to  justify,  if  an  affidavit  be  produced  on  the  part 
of  the  plaintiff,  that  they  have  declared  themselves  to  be  insufficient. (^) 

Ninthly,  Foreigners,  it  seems,  are  not  admitted  to  be  bail,  merely  in 
respect  of  property  abroad,  which  is  not  liable  to  the  process  of  the  court  ;(r) 
though  it  has  been  said,  that  merely  having  no  property  in  England,  is  not 
of  itself  a  sufficient  objection,  without  other  auxiliary  circumstances  :{s) 
And  where  one  of  the  bail  was  a  Portuguese,  and  owned  a  ship, 
which  *had  for  two  years  before  traded  between  London  and  Por-  [  *2T1  ] 
tugal,  and  was  then  gone  to  Cadiz,  whence  she  was  expected  to 
return,  and  was  insured  in  London;  the  court  of  King's  Bench  permitted 
the  bail  to  justify,  although  he  did  not  swear  to  any  effects  in  Etigland.{a) 
So,  bail  have  been  allowed  to  justify,  in  respect  of  property  consisting  partly 
of  cash,  and  partly  of  a  freehold  house  at  Gibr altar. [bh)     And  the  distinc- 

(i)  /rf.  116. 

(c)  Loflft,  72,  194.  ((/)  2  Chit.  Rep.  95. 

\e)Id.1i.  {f)Id.n. 

Iff)  Per  Cur.  M.  21  Geo.  III.  K.  B.  (h)  2  Chit.  Rep.  80. 

(t)  Id.  98.  (k)  Id.  97,  8. 

(/)  2  Bo3.  &  Pul.  526.     1  Chit.  Rep.  287,  305. 

(m)  2  Chit.  Rep.  79.  (n)  Id.  287. 

(oo)  2  Blac.  Rep.  956,  7.  (p)  1  Sel.  Pr.  2  Ed.  161.  (7)  1  Chit.  Rep.  373, (a). 

(r)  4  Bur.  2.^26,  7.    Lofft,  34,  147.    Forrest,  138.     1  Chit.  Rep.  2a5. 

Is)  1  Blac.  Rep.  444.  And  see  2  Blac.  Rep.  1323,  4,  where  a  foreijjner,  long  domiciled  in 
En<jl(ind,  and  having  properly  abroad,  was  allowed  to  justify  as  bail  for  another  foreigner. 

(a)  Colxnn  V.  Curltordi/,  T.  22  Geo.  III.  K.  B.;  and  see  the  case  of  WelsJ'ord'i  bail,  M.  57 
Geo.  III.  K.  B.   1  Chit.  Rep.  286,  in  nnti.i. 

(bh)  4  Maule  k  Sel.  173,  per  Dampier,  J.,  on  the  authority  of  Chri.ilic  v.  Filleul,  2  Blac.  Rep. 
1323.    4  Maulc  &  iSel.  371,  IS.  P.  per  Buy!nj^  J.     But  the  cases  upon  this  subject  being  con- 


fy--^  or  SPECIAL  BAIL. 


tion  seems  to  be  hct-ween  foreigiiers  and  British  subjects  resident  in  this 
country :  The  former  are  not  allowed  to  justify,  in  respect  of  property 
abroad  ;  but  with  regard  to  the  latter,  it  is  said  that  the  circumstance  of 
their  not  having  property  in  this  country,  subject  to  the  process  of  the 
court,  constitutes  no  objection  to  their  becoming  bail.((?) 

Lastly,  it  is  a  rule  in  the  King's  Bench,  that  "  whenever  two  or  more 
notices  of  justification  of  bail  shall  have  been  given,  before  the  notice  on 
which  bail  shall  appear  to  justify,  no  bail  shall  be  permitted  to  justify,  with- 
out first  paying,  or  securing  to  the  satisfaction  of  the  plaintiff,  his  attorney 
or  agent,  the  reasonable  costs  incurred  by  such  prior  notices,  although  the 
names  of  the  persons  intended  to  justify,  or  any  of  them,  may  not  have 
been  changed,  and  whether  the  bail  mentioned  in  any  such  prior  notices 
shall  not  have  appeared,  or  shall  have  been  rejected. "((7)  Prior  to  the 
above  rule,  which  does  not  apply  to  country  bail,(e)  the  costs  of  the  former 
oppositions  were  not  allowed,  although  there  had  been  three  notices  of  justi- 
fication, where  one  of  the  notices  was  merely  of  bail  put  in  for  the  pur- 
pose of  a  render.(/)  And  where,  upon  the  removal  of  a  cause  by  habeas 
corpus  from  an  inferior  court,  three  notices  were  given  of  the  sayne  bail,  to 
justify  in  vacation,  before  different  judges,  the  plaintiff  had  incurred  the 
expense  of  three  oppositions,  the  bail  court  held  that,  on  their  appearing  to 
justify  upon  a,  fourth  notice,  they  had  no  authority  to  compel  the  payment 
of  the  costs  incurred  in  consequence  of  the  former  notices;  though  it  might 
be  the  subject  of  an  application  to  the  court,  against  the  attorney,  for  vexa- 
tious proceedings.(^)  In  the  Common  Pleas,  bail  were  not  permitted  to 
justify,  till  the  costs  of  a  former  opposition  were  paid  to  the  plaintiff,  though 
the  defendant  was  in  custody.(/i)  But  if  bail  are  opposed  and  rejected,  and 
the  defendant  is  surrendered  on  the  next  day,  he  may  in  that  court  justify 
new  bail,  without  paying  the  costs  of  the  former  opposition. (^■)  And 
[  *272  ]  where  the  defendant  refused  to  move  that  his  bail  might  ^justify, 
till  they  had  paid  certain  costs,  the  court  permitted  them  to  justify 
on  their  own  motion. (aa)  In  the  Exchequer,  a  too  general  description  of 
bail,  although  a  sufficient  ground  for  opposing  their  justification,  is  not  of 
itself  enough  to  call  upon  the  court  to  fix  the  defendant  with  the  costs  of 
the  opposition  at  the  time ;  but  the  consideration  of  costs  will  be  reserved 
till  the  bail  justify.(65) 

If  the  bail  do  not  attend  to  justify  at  the  time  appointed,  and  no  further 
time  be  given,  they  are  said  to  be  out  of  court.((?c)  But  further  time  is 
sometimes  given,  on  the  motion  or  suggestion  of  counsel,  either  to  justify 
the  same  bail,  or  to  add  and  justify  others.  And  it  is  a  rule,  in  the  King's 
Beuchjidd)  that  "  when  a  motion  is  made  for  further  time  to  justify  bail,  it 

tradictory,  it  must  not  (be  observed,)  be  taken  for  granted,  that  a  party  can  justify  in  re- 
spect of  property  abroad,  when  he  has  no  other  property.    Id.  ibid. 

(c)  1  Chit.  Rep.  285,  6,  (a). 

(\/)  R.  H.  2  &  3  Geo.  IV.  K.  B.  5  Barn.  &  Aid.  559.  2  Chit.  376.  1  Dowl.  &  Ryl.  196  ;  and 
see  I  Chit.  Rep.  658.  3  Barn.  &  Aid.  759.  5  Barn.  &  Aid.  533.  1  Dowl.  &  Ryl.  142,  S.  C. 
1  M'Clel.  &  Y.  40. 

(e)  Fennell  v.  Gardner,  E.  8  Geo.  IV.  K.  B.,per  Bayley,  J. 

{/)  1  Chit.  Rep.  658,  («). 

(g)  Id.  44.  And  see  id.  80,  where,  on  an  application  to  the  court  for  costs,  against  the 
attorney,  the  matter  was  referred  to  the  Master.     See  also  2  Chit.  Rep.  89. 

(A)  1  Taunt   57.  (0  1  Bos.  &  Pul.  32. 

{aa)  7  Taunt.  47.    2  Marsh.  365,  S.  C. 

(66)  11  Price,  379.  And  see  further,  as  to  the  grounds  of  objection  to  bail,  Petersd.  322,  &c. 

(ec)  7  Mod.  50.    1  Cromp.  3  Ed.  64;  and  see  7  Durnf.  &  East,  297.     1  Chit.  Rep.  446,  (a). 

{dd)  R.  M.  36  Geo.  III.  K.  B. 


OF  SPECIAL  BAIL.  272 

must  be  supported  by  an  affidavit  of  the  special  facts  alleged  in  excuse  of 
tlie  bail  not  attendin<^  at  the  time  mentioned  in  the  notice  of  justification ; 
or,  in  case  further  time  be  given  upon  suggestion  of  counsel,  then  the  bail 
shall  not  be  permitted  afterwards  to  justify,  unless,  at  the  given  time, 
such  an  affidavit  be  produced  as  before  described."  The  affidavit  in  such 
case  should  state,  in  the  King's  Bench,  that  the  persons  not  attending 
had  consented  to  become  bail,  and  were  believed  to  be  competent  to  jus- 
tify •,{c)  1)ut  that  for  some  reason  they  had  not  been  able  to  attend,  or  that 
the  reason  of  their  non-attendance  is  unkno-\vn  :  in  the  latter  case,  it  is 
not  unusual  for  the  judge  in  the  bail  court  to  suspend  giving  time,  till  an 
affidavit  satisfactorily  explaining  the  non-attendance,  has  been  laid  before 
him.(/)  And  when  the  court  granted  indulgence  for  a  particular  day,  to 
add  and  justify  bail,  and  the  party  do  not  attend  on  that  day,  he  cannot 
justify  on  a  subsequent  one,  so  as  to  prevent  proceedings  on  the  bail  bond, 
or  against  the  sheriff,  for  any  previous  default,  -without  a  fresh  rule  for 
that  purpose. (r/)  In  the  Common  Pleas,  where  bail  were  put  in  in  time, 
but  did  not  come  to  justify  pursuant  to  notice,  and  the  defendant's  attor- 
ney gave  a  new  notice  for  the  next  day,  the  court  in  one  case  permitted 
the  bail  to  justify,  on  payment  of  the  costs  of  the  first  attendance. (7^)  But 
from  subsequent  cases  it  seems,  that  nothing  but  the  act  of  God,  such  as 
sudden  illness,  or  some  unforeseen  accident,  of  a  serious  nature,  will  be 
deemed  a  sufficient  excuse  for  the  non-attendance  of  the  bail,  or  a  good 
ground  for  allowing  time  to  substitute  other  persons  in  their  stead. (f) 

"When  an  error  or  defect  is  discovered  in  the  bail-piece,  or  notice  of  bail, 
or  in  the  notice  of  justification, (.t)  or  service  thereof,  or  in  the  affidavit  of 
such  service,  the  court,  we  have  seen,(^)  will  give  time  to  amend  or  rectify 
the  proceedings :  And  time  is  frequently  granted  for  rectifying 
^mistakes  in  country  affidavits,  of  the  caption  or  justification  of  [  *273  ] 
bail;  as  where  the  jurat  omits  to  name  all  the  deponents,(a)  or 
contains  any  interlineation  or  erasure,(a)  or,  in  the  case  of  an  illiterate 
person,  does  not  notice  that  the  affidavit  was  read  to  the  deponent,  and 
that  he  seemed  perfectly  to  understand  its  contents,  and  wrote  his  signa- 
ture in  the  presence  of  the  commissioners. (a)  But  the  court,  in  these 
cases,  will  sometimes,  require  an  affidavit  of  merits. (i)  So,  when  bail  are 
])revented  from  justifying,  by  circumstances  happening  after  they  were  put 
in,  as  by  their  subsequent  bankruptcy,(6'c)  or  insolvency,(t?tZ)  or  by  their 
having  given  up  housekeeping, (ce)  kc,  the  court  will  in  general  allow  fur- 
ther time  to  add  and  justify  other  bail.(^)  And,  in  the  Common  Pleas, 
when  the  court  gave  time  to  one  of  the  bail  to  justify  before  a  judge  at 
chambers  in  vacation,  a  judge's  summons  for  further  time,  returnable 
before  the  original  time  has  expired,  operates  as  a  stay  of  proceedings. (^<7) 
But  when  bail  offer  themselves,  and  are  rejected  on  account  of  some  per- 
sonal insufficiency,  existing  at  the  time  they  were  put  in,  as  by  their  being 

(e)  1  Chit.  Rep.  292.    2  Chit.  Rep.  82.    Append.  Chap.  XII.  §  32. 
(/■)  1  Chit.  Rep.  292.  (,7)  IJ.  42. 

(h)  M'Cormick  v.  Foulger,  M.  33  Geo.  III.  C.  P.  Imp.  C.  P.  7  Ed.  128. 
(0  8  Moore,  208.    Id.  378.    1  Hinp.  359,  S.  C. 

(Ar)  Lofft,  72,  187.    Per  Cur.  M.  25  Geo.  III.  K.  B. ;  and  sec  1  Chit.  Rep.  2,  (J),  351,  492, 
(a).  Ante,  2G5,  6.  (/)  Ante,  2G5,  6,  7. 

(«)  1  Chit.  Rep.  495,  [a)  ;  and  see  2  Chit.  Rep.  92.    11  Price,  509. 
th)  2  Chit.  Rep.  83,  (a) ;  and  sec  2  Dowl.  &  Rji.  3G2.    Ante,  267. 
t^cc)  1  Chit.  Rep.  11.  (dd)  Id.  3. 

(ee)  Id.  G  ;  and  see  id.  88,  288,  316.  Ante,  268,  9. 
(/)  1  Chit.  Rep.  2,  [b).  Ante,  259.  {gg)  6  Taunt.  240. 


273 


OF  SPECIAL  BAIL. 


then  attorneys, (A)  bankrupts, (^')  or  insolvent  debtors,  or  by  tbeir  not  being 
then  housekeepers,(A;)  &c.,  the  court  will  seldom  allow  time  to  add  and 
justify  others :(/)  And  it  is  a  rule  never  to  allow  time  to  justify  bail  in 
error,(m)  or  on  a  habeas  corpus,{n)  on  account  of  the  delay,  except  in  case 
of  unavoidable  accident,  such  as  the  unexpected  illness  of  the  bail  ;(o)  or 
where  they  are  prevented  from  coming  up,  by  any  misconduct  of  the 
opposite  party. (p)  If  the  plaintiff,  on  the  other  hand,  has  been  taken  by 
surprise,  not  expecting  that  the  bail  intended  to  come  up  to  justify,(5')  or 
the  bail  on  examination  give  evasive  answers,(r)  or  the  account  given  by 
them  of  their  sufficiency  is  suspicious, (s)  the  bail  court  will  in  general  give 
the  plaintiff  further  time  to  inquire  into  their  character  and  circumstances: 
And  when  the  plaintiff  has  been  allowed  time  for  that  purpose,  the  defen- 
dant is  at  liberty  to  put  in  fresh  bail.(^)  But,  in  the  case  of  bail  by  affi- 
davit, where  time  was  given  to  answer  an  affidavit  on  the  part  of  the 
plaintiff,  that  the  bail  was  a  prisoner  for  debt ;  the  court  held,  that  the 
defendant  could  not  give  notice  of  and  justify  fresh  bail,  before  the  affi- 
davit was  answered. (t«)  A  judge  will  not  interfere  with  another 
[  *274  ]  *judge's  order  for  time:(a)  And  a  mistake  in  drawing  up  a 
rule  for  further  time  to  justify  bail  on  a  wrong  day,  is  imma- 
terial,(a) 

The  bail  may  be  opposed,  either  by  their  personal  examination  or  by 
affidavit.  When  the  former  method  is  adopted,  the  counsel  should  endea- 
vour, by  a  rigid  examination,  to  obtain  from  the  bail  an  acknowledgment 
of  their  real  situation.  When  the  latter  mode  is  pursued,  an  affidavit 
should  be  produced,  disclosing  such  facts  as  will  convince  the  court,  that 
there  has  been  some  irregularity  or  defect  in  the  proceedings,  or  that  the 
bail  are  incapable  of  fulfilling  their  engagement.  A  foreigner  may  be 
sworn  and  examined  by  an  interpreter. (Z»)  And,  in  opposing  bail,  they 
may  be  asked  any  questions  respecting  their  qualifications  as  house- 
keepers, &c.,  and  the  nature  and  amount  of  their  property,  to  the  extent 
of  the  sum  for  which  they  are  required  to  be  answerable,  but  no  further ; 
and  questions  are  not  allowed  to  be  asked,  which  will  unnecessarily 
expose  the  circumstances  of  the  bail,  or  of  other  persons.  But  where 
one  of  the  bail  was  asked,  whether  he  had  not  stood  in  the  pillory 
for  perjury,  which  question  was  objected  to  as  tending  to  criminate 
him,  the  court  overruled  the  objection,  saying  there  was  no  impropriety 
in  the  question,  as  the  answer  could  not  subject  him  to  any  punish- 
ment; and  the  bail  admitting  the  fact,  he  was  of  course  rejected.((?)  In 
opposing  bail  by  affidavit^  the  affidavit  must  be  put  in  and  read,  before 
they  are  examined ;  as  it  is  a  settled  rule,  than  an  affidavit  impugning  their 
sufficiency  cannot  be  read,  or  the  substance  stated  to  the  court,  after  any 

{h)  1  Chit.  Rep.  8.  Ante,  247,  267.  [i)  Id.  3.  Ante,  247,  269,  70. 

\k)  Id.  7  ;  and  see  id.  88,  144.  Ante,  268,  9 ;  but  see  1  Chit.  Rep.  288,  316. 

\l)  Per  Cur.  T.  24  Geo.  III.  K.  B.   1  Chit.  Rep.  2,  {b). 

(to)  Per  Bayley,  J.  E.  55  Geo.  III.  K.  B.  1  Chit.  Rep.  76,  {a),  but  see  1  Dowl.  &  Rjl.  9. 

(n)  1  Chit.  Rep.  76,  [a);  but  see  8  Taunt.  126.  Ante.  266. 

(o)  2  Chit.  Rep.  107.    Ante,  272.    9  DowL  &  Ryl.  6. 

(p)  1  Dowl.  &  Ryl.  9. 

{q)  1  Chit.  Rep.  289 ;  and  see  2  Chit.  Rep.  98.  Ante,  264. 

(r)  1  Chit.  Rep.  354,  {a).  (s)  Id.  309,  (a). 

(/)  Id.  354,  [a).  2  Chit.  Rep.  84,  S.  C.  {ii)  Id.  354. 

(«)  2  Chit.  Rep.  83. 

[h)  2  Blac.  Rep.  957,  1324. 

[c)  4  Durnf.  &  East,  440. 


OF  SPECIAL  BAIL.  274 

questions  have  been  asked  them.(cZ)  It  must  set  forth  the  particular  objec- 
tion intended  to  be  relied  on,  with  certainty  and  precision ;  merely  sug- 
gesting matters  of  report  and  general  opinion,  without  alleging  any  par- 
ticular fact,  from  which  a  distinct  inference  of  incompetency  can  be  col- 
lected, will  be  of  no  avail. (t;)  Affi<lavits  containing  general  statements 
of  slanderous  matter,  injurious  to  the  character  of  the  bail,  cannot  be 
received. (/)  And,  in  the  Common  Pleas,  if  the  justification  of  bail  by  affi- 
davit be  opposed  by  another  affidavit,  stating  the  insolvency  of  one  of  the 
bail,  the  court  will  not  allow  the  matters  of  the  latter  affidavit  to  be 
answered.  (</) 

When  the  bail,  on  cross  examination,  are  guilty  of  gross  prevarication 
they  may  be  committed  to  the  custody  of  the  marshal, (A]  or  to  Neicgate^{i) 
for  a  contempt  of  the  court ;  and  if  they  forswear  themselves,  they  may  be 
indicted  for  perjury. (A;)  But  the  court  of  Common  Pleas  will  not  set  aside 
the  justification  of  bail,  on  account  of  perjury  subsequently  discovered,  but 
will  leave  the  party  to  his  indictment  for  perjury. (^)  Where  a  man  who 
had  offered  himself  as  bail  confessed,  on  being  examined  by  the  court,  that 
he  had  forsworn  himself,  he  was  presently  adjudged  to  be  com- 
mitted to  *prison,  and  to  stand  upon  the  pillory,  with  a  paper  [  *27o  ] 
mentioning  the  cause,  vi2.  "for  false  bail,"  and  to  be  brought  into 
the  courts  of  King's  Bench,  Common  Pleas  and  Exchequer  ;  and  this,  upon- 
his  confession,  was  recorded  in  court,  without  other  proceedings  against 
him.((?)  And,  where  bail  had  assumed  feigned  names,  the  court  of  Com- 
mon Pleas  ordered  them  and  the  attorney  to  be  set  in  the  pillory. (5)  Also,, 
by  the  statute  21  Jac.  I.  c.  26,  §  2,  "  if  any  person  shall  acknowledge  or 
procure  to  be  acknowledged,  any  recognizance  or  bail,  in  the  name  of  an- 
other person,  not  privy  or  consenting  to  the  same ;  or,  (by  the  statute  4  & 
5  W.  &  M.  c.  4,  §  4,)  before  a  commissioner,  shall  represent  or  personate 
another  person,  whereby  he  may  be  liable  to  the  payment  of  any  debt  or 
damages,  he  shall,  on  conviction,  suffer  death  as  a  felon,  without  benefit  of 
clergy."  And,  where  bail  had  been  personated,  the  court  of  King's  Bench 
made  the  attorney  pay  costs  to  the  plaintiff,  and  to  the  personated  bail, 
and  procure  good  bail,  besides  setting  aside  the  execution  that  had  issued 
against  the  personated  bail.(c)  But  the  courts  will  not  vacate  the  pro- 
ceedings against  the  party  personated,  until  the  offender  be  convicted  ;{dd) 
nor  can  a  conviction  take  place,  until  the  bail-piece  be  filed.(e<?) 

When  bail  are  opposed,  they  are  either  rejected,  or  alloioed  by  the  court, 
unless  further  time  be  given  to  justify,  or  inquire  into  their  circum- 
stances '.{ff)  And  bail  may  be  rejected,  after  having  been  permitted  to 
pass,  before  the  rule  of  allowance  is  drawn  up,  if  sufficient  cause  be  shown, 
as  that  they  were  afterwards  rejected  in  another  action. f^/^^/)  The  rejection 
of  one  bail  is  a  rejection  of  both:  therefore,  where  one  bail  only  had  been. 

(d)  1  Chit.  Rep.  373,  (a).  Imp.  K.  B.  10  Ed.  134,  (a). 

(e)  1  Chit.  Rep.  676;  and  see  id.  321.  (/)  Id.  G76. 

(g)  5  Moore,  482.    Ante,  264.  (A)  1  Chit.  Rep.  110. 

(i)  Id.  117.    8  Dowl.  &  Rvl.  41. 

\k)  1  Chit.  Rep.  116;  and  see  5  Taunt.  776. 

\l)  5  Moore,  321.  2  Brod.  k  Biag.  GIO,  S.  C.  8  Moore,  381.    1  Bing.  365,  S.  C.  accord. 

(a)  Cro.  Car.  146. 

(b)  1  Str.  384.  But  the  punishment  of  the  pillory  is  now  abolished,  except  for  perjury 
and  subornation  of  perjury,  by  the  statute  56  Geo.  III.  c.  138. 

(c)  Keble  v.  Markham,  E.  20  Geo.  III.  K.  B. 

(dd)  T.  Jon.  64.   1  Vent.  301.  3  Keb.  694.   1  Ld.  Raym.  445.  (ee)  2  Sid.  90. 

(/)  Ante,  272,  3  ;  and  see  1  Chit.  Rep.  287,  8  ;  292,  3  ;  316,  334,(a). 
(ffi)  1  Chit.  Rep.  307. 

Vol.  I.— 18 


275 


OF  SPECIAL  BAIL. 


rejected,  and  notice  was  given  of  adding  and  justifying  another,  the  court 
held  that  the  cjriginal  notice  was  a  nullity,  and  that  there  should  have  been 
a  fresh  notice  of  putting  in  and  justifying  de  novo.{h)  And,  when  bail  are 
rejected,  the  plaintiff  is  at  liberty  to  take  an  assignment  of  the  bail  bond, 
or  proceed  against  the  sheriff  by  attachment  for  not  bringing  in  the  body; 
unless  further  time  be  given  to  add  and  justify  other  bail.  But  bail  who 
have  been  rejected  are  still  competent  to  render  the  defendant,  in  the 
King's  Bench,  so  long  as  they  remain  on  the  bail-piece  ;(^)  though  it  is  other- 
wise in  the  Common  Pleas,  where  they  must  enter  into  a  fresh  recogni- 
zance, before  they  can  render  the  defendant. (A;)  To  detect  frauds  by  hired 
bail  offering  themselves  to  justify,  after  they  have  been  rejected  in  other 
actions,  a  book  is  kept  by  the  master  in  the  King's  Bench ;  in  which  the 

names  and  descriptions  of  rejected  bail  are  entered:  And  it  is  an 
[  *276  ]  established  rule,  that  if  bail  has  been  once  rejected,  and  entered 

in  the  *master's  book,  the  circumstances  under  which  the  rejec- 
tion took  place,  cannot,  on  a  subsequent  occasion,  be  inquired  into ;  and 
consequently,  the  party  afterwards  continues  incompetent  to  become  bail, (a) 
So,  bail  were  rejected  in  the  King's  Bench,  it  appearing  that  one  of  them 
had  been  before  rejected  in  the  Palace  court.(6)  And  where  bail,  of  whom 
notice  had  been  given,  having  been  rejected  in  another  cause  on  the  day 
in  which  they  were  intended  to  justify,  were  not  offered  for  justification, 
according  to  the  notice ;  and  on  the  next  day,  the  defendant  applied  for 
time  to  add  and  justify,  and  to  stay  proceedings  against  the  bail  below; 
the  bail  court  held  that  this  could  not  be  done,  in  the  absence  of  the  plain- 
tiff, who  was  unapprized  of  the  motion. (c)  The  general  rule,  however,  that 
bail  once  rejected  are  always  rejected,  must  be  understood  to  apply  only 
to  cases  where  they  have  been  rejected  for  insufficiency  of  property,  or 
other  good  cause ;  and  therefore,  where  bail  had  been  rejected  on  a  former 
occasion,  merely  on  the  ground  of  their  having  been  indemnified  by  the 
defendant's  attorney,  they  were  allowed  to  justify.((^) 

When  bail  are  alloived,  a  rule  or  order  of  allowance  should  be  drawn  up,  with 
the  clerk  of  the  rules  in  the  King's  Bench, (.t?)  or  secondaries  in  the  Common 
Pleas,(/)  and  a  copy  of  it  served  on  the  plaintiff's  attorney,  or  on  the  plain- 
tiff himself,  if  he  has  not  appointed  an  attorney :  And  where  a  plaintiff  sued 
in  person,  and  his  residence  was  unknown  to  the  defendant,  and  his  servant 
refused  to  disclose  it,  the  court  of  Common  Pleas  ordered,  that  the  affixing 
a  copy  of  the  rule  of  allowance,  and  of  that  order,  in  the  prothonotaries' 
office,  should  be  deemed  good  service.(^^)  The  rule  of  allowance,  in  the 
King's  Bench,  must  be  served  on  the  plaintiff's  attorney,  even  though 
he  has  opposed  the  justification  of  bail  ;{hh)  or  though  the  bail  justified  after 
opposition  of  counsel,  in  the  presence  of  the  plaintiff's  attorney  :(n)  and  if 
it  be  not  served,  he  may  take  an  assignment  of  the  bail  bond,(^A;)  or  proceed 
by  attachment  against  the  sheriff.(Z)     When  bail  justify  at  chambers  by 

(h)  5  Barn.  &  Aid.  704.  1  Dowl.  &  Rvl.  350,  S.  C. 

138,  (a).  1  Chit.  Rep.  446,  (a). 
,  240,  (a).  1  Chit.  Rep.  446,  (a). 

Rep.  676.  "         '         (c)  Id.  290,  per  Best,  J. 
(d)  1  Dowl.  &  Ryl.  488.  (e)  Append.  Chap.  Xll.  ?  33,  4,  5. 

{/)  Id.  ?i  36.  (ffff)  7  Taunt.  145  ;  and  see  1  Chit.  Rep.  675,  (a), 

(hh)  4  Durnf.  &  East,  493.  2  Bos.  &  Pul.  341 ;  and  see  3  Maule  &  Sel.  145. 
{ii)  2  Chit.  Rep.  99.  {kk)  2  Bos.  &  Pal.  341. 

(Z)  4  Durnf.  &  East,  493. 


OF  SPECIAL  BAIL.  276 

consent,  the  practice  of  the  court  requires  that  the  defendant  should  serve 
a  rule  for  their  allowance,  or  at  least  give  notice  that  they  have  justi- 
fied.(7?i)  And  where  a  bail  described  himself  as  having  property  to  a 
great  amount,  and  the  court  directed  an  incjuiry,  which  the  bail  eluded  by 
running  away,  they  would  not  permit  the  rule  of  allowance  to  be  entitled 
of  the  term  he  came  up  to  justify,  but  discharged  the  application  with 
costs. (?j)  If  bail  has  been  improperly  allowed,  the  court,  we  have  seen,(o) 
will  set  aside  the  rule  of  allowance:  And,  in  the  King's  Bench, 
it  is  a  good  ground  for  setting  aside  the  allowance  of  bail,  that  [  *277  ] 
they  *were  afterwards  rejected  in  other  causes.(a)  And  a  rule 
for  the  allowance  of  bail  was  discharged  with  costs,  to  bo  paid  by  the 
defendant  on  an  affidavit  that  the  bail  had  perjured  himself  on  his  justi- 
fication, in  swearing  that  an  action  in  wliich  he  had  been  bail,  had  been 
compromised. (i)  It  also  seems,  that  the  justification  of  bail  may  be  set 
aside  in  that  court,  under  circumstances  of  gross  imposition  and  fraud,  on 
the  part  of  the  bail ;((?)  and  where  the  defendant's  attorney  is  privy  to 
their  misconduct,  the  court  will  make  him  pay  the  costs  of  the  applica- 
tion.(c?)  But  if  the  bail  have  sworn  to  the  false  account  of  their  pro- 
perty, without  the  privity  of  the  defendant  or  his  attorney,  the  plaintiff 
it  seems  has  no  other  remedy  tlian  by  indictment  for  perjury  ;(t')  though 
if  the  plaintiff  can  by  any  means  connect  the  defendant,  or  his  attorney, 
with  the  false  swearing  of  the  bail,  the  court  will  punish  them;  and  they 
have  the  means  to  do  so,  for  the  one  is  a  suitor,  and  the  other  the  officer 
of  the  court.(f^) 

After  service  of  the  rule  or  order  of  allowance,  the  bail-piece,  in  the 
King's  Bench,  should  be  obtained  from  the  judge's  chambers,  and  filed 
with  the  master ;  which  should  regularly  be  done  the  same  term  in  which 
they  were  allowed :(/)  And  in  filing  the  bail  in  that  court,  it  should  be 
observed,  that  every  bail  taken  on  or  before  the  continuance  day,  is  a  bail, 
and  to  be  filed  of  the  prececli7ig  term  ;  and  every  bail  taken  after  the  con- 
tinuance day,  is  a  bail,  and  to  be  filed  of  the  subsequent  term  :{g)  and  it 
is  said,  that  where  new  bail  arc  added  to  other  bail  taken  on  or  before 
the  continuance  day,  the  new  bail  shall  be  taken  and  filed  as  of  that  term 
in  which  the  first  bail  was  put  in. (A)  But  although  bail,  when  added  and 
justified  in  vacation,  are  filed  as  of  the  preceding  term,  yet  bail  acknow- 
ledged and  justified  in  a  subsequent  term  are  not  so  filed,  even  when  sub- 
stituted for  other  bail  put  in  of  the  preceding  term.(?') 

The  bail-piece  being  filed  in  the  King's  Bench,  or  bail  perfected  in  the 
Common  Pleas,  an  entry  should  be  made  of  the  recognizance  on  a  roll, 
called  the  recognizance  roll ;  which  should  be  docketed, (^)  and  carried 
into  the  treasury  chamber  ;  And  this  should  regularly  be  done,  before  any 

(m)  1  Barn.  &  Cres.  285.     2  Dowl.  &  RyL  436,  S.  C. 

(n)  1  Chit.  Rep.  131.  (o)  Ante,  235,  6. 

(a)  1  Chit.  Rep.  144,  {h) ;  and  see  id.  307.     3  Dowl.  &  Ryl.  6. 

{b)  1  Chit.  Rep.  372  ;  and  sec  2  Barn.  &  Aid.  768  ;  but  see  2  Brod.  k  Wing.  619. 

(c)  I  Chit.  Rep.  143.  [d)  Id.  144. 

[e]  Per  Cur.  T.  22  Geo.  III.  K.  B.  5  Taunt.  776.  6  Moore  321.  2  Brod.  k  Bing.  619,  S. 
C.     Ante,  274. 

(/)  R.  II.  1650,  reg.  3  K.  B. 

[g)  R.  E.  5  Geo.  II.  reg.  1,  {h),  K.  B.  And  as  to  the  continuance  day,  sec  R.  E.  11  W.  III. 
reg.  2,  K.  B.     2  Str.  1215.     1  East,  406,  409. 

{h)  R.  E.  5  Geo.  II.  reg.  1,  [b),  K.  B.     1  Salk.  100,  semb.  contra. 

(i)  3  Barn.  &  Aid.  515.  {k)  Append.  Chap.  XII.  {  43. 


277 


OF  SPECIAL  BAIL. 


proceedings  are  had  against  the  bail  ;{ll)  or  at  least  before  they  are  called 
upon  to  plead;  for  otherwise  they  may  plead  7iul  tiel  record:  and  if  the 
recognizance  roll  be  not  carried  in  till  afterwards,  it  seems  that  they  may 
•withdraw  their  plea,  and  the  plaintiff  must  pay  the  costs  of  it.(w)  In  the 
King's  Bench,  the  recognizance  of  bail  by  bill  is  entered  by  the  plaintiff's 

attorney,  after  the  declaration,  with  a  meinorandum  of  the  term 
[*278  ]    it  is  of  ;(w)  *but  by  original^  it  is  entered  by  the  filacer,  after  a 

recital  of  the  process. (a)  And  in  this  court,  the  course  is  always 
to  enter  it  as  taken  in  court,  though  it  be  actually  taken  by  a  judge  in  his 
chamber,(5)  or  by  a  commissioner  in  the  country  ;  neither  is  it  a  record 
till  entered  :(Z»)  And  if,  in  a  joint  action  against  two  defendants,  the  re- 
cognizance of  bail  be  entered  by  mistake  as  in  an  action  against  one  only, 
and  the  plaintiff,  after  two  writs  of  scire  facias  against  the  bail,  and  nihil 
returned  to  them,  sign  judgment  against  the  bail,  and  take  out  execution, 
the  court  will  set  aside  the  judgment  and  execution  for  irregularity. (c) 
In  the  Common  Pleas,  the  filacer  enters  the  recognizance  on  the  roll,((i) 
and  dockets  it :  And  in  that  court,  when  it  is  taken  by  a  judge  in  his 
chamber,  or  by  a  commissioner  in  the  country,  it  may  be  entered  specially  ; 
it  being  a  record  immediately  upon  the  first  caption,  and  binds  the  lands, 
before  it  is  filed  at  Westminster. {e)  Where  the  plaintiff  was  called  by  a 
wrong  name  in  the  recognizance  roll,  the  court  would  not  rectify  the  mis- 
take, but  gave  judgment  for  the  defendants,  on  an  issue  of  nul  tiel  re- 
cord.[f)  So,  they  would  not  amend  a  clerical  error,  in  the  spelling  of 
the  plaintiff's  name  in  the  recognizance,  without  the  consent  of  the  bail  :(^) 
And  where  an  original  capias  was  issued  into  a  county  palatine,  and  the 
defendant  was  arrested  and  put  in  bail  as  upon  a  testatum,  which  was  en- 
tered in  Middesex,  and  a  declaration  was  afterwards  delivered,  in  which 
the  venue  was  laid  in  Lincolnshire,  the  court  refused  to  interfere,  after  a 
considerable  length  of  time,  at  the  instance  of  the  bail,  by  ordering  the 
entry  of  the  recognizance  to  be  made  conformable  to  the  facts  of  the 
case.(7<)  But,  in  scire  facias  against  bail,  if  there  be  a  failure  of  record, 
through  a  misprision  of  the  officer,  the  court  will  permit  the  entry  of  the 
recognizance  to  be  amended. (z)  And,  in  a  subsequent  case,  the  entry 
was  amended,  at  the  instance  of  the  bail,  where  the  plaintiff's  name  had 
been  mis-stated.(A;) 

Such  arc  the  means  of  putting  in  and  perfecting  bail  above,  when  the  de- 
fendant is  at  large,  in  order  to  prevent  an  assignment  of  the  bail-bond,  or 
proceedings  against  the  sheriff.  Bail  above  may  also  be  put  in  and  per- 
fected, at  any  time  pending  the  action,  where  the  defendant  is  in  custody  of 
the  sheriff,  or  of  the  marshal  of  the  King's  Bench,  or  warden  of  the  Fleet 

{II)  R.  E.  5  Geo.  II.  reg.  3,  (a),  K.  B.  (m)  1  Moore,  431. 

(h)  R.  E.  5  Geo.  II.  reg.  3,  (a),  K.  B.     Append.  Chap.  XII.  |  41. 

(a)  Append.  Chap.  XII.  I  42. 

(6)  2  Salk.  564,  600,  659.  6  Mod.  42,  132.  1  Mod.  120,  21  ;  and  see  5  East,  461.  2 
Smith  R.  14,  S.  C. 

(c)  1  Maule  &  Sel.  199.     2  Chit.  Rep.  78,  (a). 

\d)  For  the  form  of  the  entry  of  a  recognizance  of  bail  in  C.  P.  see  Append.  Chap.  XII. 
g  44,  5,  6,  and  for  the  entry  of  a  recognizance  of  bail  in  the  Exchequer,  see  id.  ^  47,  8. 

(e)  2  Salk.  504,  600,  659.  6  Mod.  42,  132.  7  Mod.  120,  21;  and  see  5  East,  461.  2 
Smith  R,  14,  S.  C. 

(/)  3  Taunt.  263.  (y)  5  Taunt.  814  ;  and  see  1  Chit.  Rep.  323,  (a).     4  Moore,  65. 

(h)  1  Moore,  514. 

(i)  1  Taunt.  221 ;  and  see  Cas.  Pr.  C.  P.  74,  5.  Barnes,  69,  S.  C.  Id.  415;  but  see  1 
Bos.  &  Pul.  481. 

(k)  4  Taunt.  875;  and  see  8  Moore,  33.     1  Bing.  206,  S.  C. 


OF  SPECIAL  BAIL.  278 

prison.  And  it  may  even  be  put  in,  for  liberatinf^  the  defendant,  after  final 
judgment  against  him,  and  before  he  is  charged  in  execution  ;(/) 
*othcrwise,  on  a  writ  of  error  being  brouglit,  whicli  is  a  supcrsc-  [*270  ] 
deas  of  execution,  he  must  lie  in  custody  until  it  be  determined. 
But  bail  who  have  rendered  the  defendant,  in  their  discharge,  cannot  af- 
terwards justify,  so  as  to  release  him  from  imprisonment,  without  entering 
into  a  fresh  bail-piece. (a)  A  doubt  having  arisen,  whether  a  prisoner  couhl 
be  bailed  in  vacation^  it  was  enacted  by  the  statute  4:}  (ico.  III.  c.  -10,  §  6, 
that  "if  any  defendant  shall  be  taken,  detained  or  charged  in  custody,  at 
the  suit  of  any  person  or  persons,  upon  mesne  process  issuing  out  of  any  of 
bis  majesty's  courts  of  record  at  Westminster  or  Duhlin,  and  shall  be  impri- 
soned or  detained  thereon  after  the  return  of  such  process,  it  shall  and 
may  be  lawful  for  such  defendant,  in  vacation  time  only,  and  upon  due 
notice  thereof  given  to  the  attorney  for  the  plaintiff  or  plaintifis  in  such 
process,  to  put  in  and  justify  bail,  before  any  one  of  the  justices  or  barons 
of  the  court  out  of  which  such  process  shall  have  issued ;  who  may,  if  he 
shall  think  fit,  thereupon  order  a  rule  to  issue  for  the  allowance  of  such 
bail,  and  may  further  order  such  defendant  to  be  discharged  out  of  cus- 
tody, by  writ  of  supersedeas  or  otherwise,  according  to  the  practice  of  such 
court,  in  like  manner  as  the  same  is  and  may  be  done  by  an  order  of  court 
in  term  time."  This  statute  only  applies  to  arrests  on  mesne  process,  issu- 
ing out  of  the  superior  courts  ;  but  it  seems  that  an  habeas  corjms,  for  the 
removal  of  a  cause  from  an  inferior  court,  is  considered  as  mesne  pro- 
cess. (6)  To  discharge  a  defendant  out  of  custody  on  this  statute,  bail 
above  must  be  put  in  before  a  judge,(c)  and  notice  thereof  given  to  the 
plaintiff's  attorney,  and  that  the  bail  will  justify  themselves  on  a  certain 
day,  at  a  judge's  chambers  ;{d)  and  an  affidavit  made  of  the  service  of 
such  notice:  and  when  the  bail  have  justified,  the  judge  will  grant  his 
fiat{e)  for  a  rule  to  be  drawn  up  for  their  allowance,  and  for  the  discharge 
of  the  defendant,  if  in  custody  of  the  marshal,  or  for  a  writ  of  super- 
sedeas to  issue,  if  in  custody  of  the  sheriff,  or  warden  of  the  Fleet  prison  ; 
and  thereupon  a  rule  being  drawn  up  by  the  clerk  of  the  rules  in  the 
King's  Bench, (/)  or  secondaries  in  the  Common  Pleas,(^)  and  a  writ  of 
super sedeas[h)  issued  when  necessary,  and  delivered  to  the  sheriff  or  warden, 
the  defendant  will  be  discharged  out  of  custody.(/) 


Before  we  dismiss  the  subject  of  bail,  it  may  be  proper  to  consider  the 
nature  and  extent  of  their  Uabiliti/,  and  the  means  by  which  they  are  dis- 
charged. 

By  the  terms  of  the  recognizance  of  bail  it  is  stipulated,  that  if  the  de- 
fendant be  convicted   in  the   action  brought  against  him,   he  shall  pay 

{I)  mil  V.  Stanton,  II.  55  Geo.  III.  K.  B.  2  Chit.  Rep.  73,  4.  M'Clcl.  310.  13  Price,  589, 
S.  C.     Ante,  248. 

(a)  2  Chit.  Rep.  76. 

(6)  Per  Ilolroijtl,  J. ;  and  on  conference  with  Ahbott,  Ch.  J.,  he  discharged  a  defeDdant  on 
justifying  bail  thereon,  in  vacation  :  but  see  1  Chit.  Rep.  44,  srmb.  contra. 

(c)  For  the  form  of  the  bail-piece,  see  Append.  Chap.  XII.  g  6. 

(rf)  Id.  §  14.  (e)  Id.  ?  38. 

(/)  «•  ?  39.  (y)  /,/.  §  40. 

(A)  Append.  Chap.  XV.  ?  35,  &c. 

(i)  For  the  form  of  the  oiin/  of  a  recognizance  of  bail  on  the  above  statute,  when  taken 
before  a  commissioner,  after  final  judgment,  see  Append.  Chap.  XII.  g  46. 


279 


OF  SPECIAL  BAIL. 


[  *280  ]  the  *clcbt,  or  damages,  and  costs  recovered,  or  render  his  body 
to  the  custody  of  the  marshal  of  the  King's  Bench,  or  warden  of 
the  Fleet  prison :(«)  and  therefore  if  the  plaintiflF  declare  in  due  time,  for 
the  cause  of  action  expressed  in  the  process  and  affidavit  to  hold  to  bail, 
and  proceed  thereon  to  judgment  against  the  defendant,  Tvhether  by  con- 
fession, 71071  sum  infoinnatus,  or  Tniliil  dicit,  or  on  a  demurer,  nul  tiel 
record,  or  verdict,  the  bail  are  in  general  liable  to  pay  the  condemnation 
money,  or  render  the  defendant. 

In  the  King's  Bench,  the  ancient  course  of  the  court  "was,  that  if  a  man 
became  bail  for  another  upon  a  latitat,  &c.  in  any  sum  of  money,  however 
trifling,  he  was  bail  for  him  in  all  actions  brought  by  the  same  plaintiff, 
during  the  same  term,  were  the  sums  ever  so  great. (&)  To  rectify  this 
extraordinary  practice,  a  rule  was  made,  that  if  the  plaintiff  should  declare 
against  the  defendant,  upon  any  bail  by  him  put  in,  for  a  greater  sum  than 
was  expressed  in  the  process  upon  which  the  defendant  was  arrested,  then 
the  bail  so  put  in  should  not  be  chargeable  in  that  action. (c)  Still,  how- 
ever, the  bail  were  liable  to  all  actions,  wherein  the  plaintiff  declared  for 
and  recovered  a  less  sum  than  was  expressed  in  the  process  ;(<:?)  and  where 
he  declared  for  and  recovered  a  greater  sum,  the  bail  were  totally  dis- 
charged, (e)  At  length  it  was  resolved,  that  as  on  the  one  hand,  there  was 
no  colour  to  subject  the  bail  to  more  than  they  were  bound  in,  let  the 
plaintiff's  demand  be  ever  so  much  more;  so,  on  the  other  hand,  there 
was  no  reason  why  the  plaintiff  should  suffer  by  his  moderation  in  taking 
bail;  but  the  recognizance  should  be  considered  as  an  agreement  to  pay 
to  the  extent  of  the  sum  sworn  to  and  costs,  or  render  the  defendant.  (/) 
And  accordingly  it  is  now  settled,  in  the  King's  Bench,  that  where  the 
plaintiff  declares  for  or  recovers  a  greater  sum  than  is  expressed  in  the 
process  upon  which  he  declares,  the  bail  shall  not  be  discharged ;  but  be 
liable  for  so  much  as  is  sworn  to,  and  indorsed  on  the  process,  or  for  any 
less  sum,  which  the  plaintiff  in  such  action  shall  recover,(^^)  together  with 
the  costs  of  the  original  action. (A)  And  there  is  no  distinction  in  prac- 
tice, between  actions  commenced  by  hill  and  by  original  writ ;  but  the 
court,  in  either  case,  will  enter  an  exoneretur  on  the  bail-piece,  on  pay- 
ment of  the  sum  sworn  to  and  costs,  though  less  than  the  sum  acknow- 
ledged to  be  due.(i)  The  bail,  however,  are  not  liable  to  pay  the  costs  of 
a  writ  of  error  ;(A;)  nor  is  the  plaintiff  entitled  to  levy  equitable  costs,  out  of 
the  penalty  of  the  recognizance. (?)     In  the  Common  Pleas,  each  of  the  bail 

is  separately  liable  for  the  sum  recovered,  to  the  full  extent  of  the 
[  281  ]    penalty  of  the  recognizance,  *being  double  the  amount  of  the  sum 

sworn  to,  or  indorsed  on  the  writ  under  a  judge's  order.(aa)    But 
the  bail  are  not  liable,  in  that  court,  to  the  payment  of  interest  on  the  sum 

(a)  A7ite,  250,  51.  {b)  Cro.  Jac.  449.     2  Sid.  163.     1  Mod.  16. 

(c)  R.  T.  22  Car.  II.  K.  B.     6  Mod.  267.  (rf)  3  Keb.  16. 

(e)  6  Mod.  266.     1  Salk.  102,  S.  C.  (/)  2  Str.  922. 

{g)  R.  E.  5  Geo.  II.  reg.  2  K.  B.  Lofft,  545.  Doug.  330.  8  Durnf.  &  East,  28,  9.  1  East, 
90.     5Maule  &Sel.  511. 

{h)  The  rule  of  E.  5  Geo.  II.  K.  B.  is  silent  as  to  the  costs  :  But,  in  the  case  of  Peterken  v. 
Sampson  and  another,  M.  25  Geo.  III.  K.  B.  it  was  determined  by  the  court,  that  the  bail  are 
liable  to  pay  them,  as  well  as  the  sum  sworn  to :  and  see  6  East,  313. 

(t)  6  East,  312.     2  Smith  R.  402,  S.  C.     5  Maule  &  Sel.  511. 

(k)  6  Durnf.  &  East,  288. 

(I)  2  Str.  826.     1  Barnard.  K.  B.  125,  S.  C. 

(aa)  Barnes,  T6.  1  Bos.  &Pul.  205;  and  see  5  Maule  &  Sel.  511.  4  Moore,  167.  1  Brod. 
&  Bing.  490,  S.  C. 


OF  SPECIAL  BAIL.  281 

recovered,  subseciucnt  to  the  ju(];Tnient.(W)  And  althougli  bail,  liavlng  ren- 
dered tlie  defendant,  instigate  him  to  vexatious  attempts  to  obtain  his  dis- 
charge under  an  insolvent  act,  that  court  Avill  not  compel  them  to  pay  the 
costs  of  the  plaintiff's  resisting  those  attempts. (f)  In  the  E.xchcqucr  it  is  a 
rule,((;?)  that  "upon  a  recognizance  of  bail,  in  any  action  brought  in  that 
court,  the  bail  therein  arc  not  jointly  or  severally  liable  in  such  action,  for 
more  in  the  whole  than  the  amount  of  the  sum  sworn  to  in  the  affidavit  of 
the  cause  of  action,  together  with  the  costs  of  such  action,  unless  any  pro- 
ceeding be  had  upon  their  recognizance,  in  M'hich  case  they  will  also  be 
subject  to  such  other  costs  as  they  are  by  law  liable  to." 

The  bail  to  the  action  are  discharged,  hy  performing  the  condition  of  the 
recognizance,  or  by  some  matter  operating  in  excuse  of  performance:  and 
the  condition  of  the  recognizance  is  performed,  either  by  paying  the  debt, 
or  damages,  and  costs  for  which  the  bail  are  liable,  or  (which  is  more  usual,) 
by  rendering  the  defendant  to  the  custody  of  the  marshal  of  the  King's 
Bench,  or  warden  of  the  Fleet  prison. 

In  treating  of  the  render  in  discharge  of  bail,  it  may  be  proper  to  con- 
sider by  whom,  or  what  bail,  the  render  may  be  made,  with  the  time  and 
manner  of  making  it.  The  render  may  be  made  not  only  by  the  bail  put 
in  by  the  defendant  himself,  but  also  by  such  as  are  put  in  by  the  sheriff, 
or  his  bail,  for  their  own  indemnity.((^)  And,  on  an  exception  to  bail,  if 
notice  be  given  of  other  bail,  only  one  of  whom  justifies,  and  the  names 
of  the  former  still  remain  on  the  bail-piece,  the  first  bail  may  render  the 
principal,  in  the  King's  Bench. (/)  Even  bail  who  have  been  rejected 
have  in  that  court  been  holden,  so  long  as  they  remain  on  the  bail-piece, 
competent  to  make  a  surrender  :{g)  And  where  one  bail  only  had  justified, 
and  time  had  been  refused  by  the  court  to  justify  another,  the  court  held 
the  render  sufficient. (A)  In  the  Common  Pleas,  w'hen  bail  above  were 
excepted  to  and  could  not  justify  themselves,  they  were  formerly  con- 
sidered as  no  bail,  and  therefore  could  not  have  rendered  the  defendant 
to  prison ;  but  other  fresh  bail  might  have  been  put  in,  and  before  any 
exception  taken  to  them,  they  might  have  surrendered  him  to  prison  in 
discharge  of  themselves :(/)  And  it  is  now  holden,  that  bail,  who  have 
been  rejected  may  enter  *into  a  new  recognizance,  for  the  pur- 
pose of  rendering  the  defendant.(a)  But  bail  surreptitiously  [  *282  ] 
put  in  are  not  allowed  to  render  him. (J) 

The  defendant  having  put  in  bail,  may  render  himself,  or  be  taken  and 
rendered  in  their  discharge,  at  any  time  pending  the  action;  or  after  judg- 
ment for  the  plaintiff,  and  before  the  return  of  the  capias  ad  satisfacien- 
dum, or  even  after  such  return,  and  before  the  expiration  of  the  time  allowed 
for  that  purpose  by  the  indulgence  of  the  court. [a]    But  above,  we  have 

(bb)3  Taunt.  503.  (c)  4  Taunt.  192. 

(d)  R.  H.  38  Geo.  III.  in  Scac.  Man.  Ex.  Append.  223.  8  Price,  .'')02.  And  see  further,  as 
to  the  nature  and  extent  of  the  liability  of  bail,  Petersd.  Part  I.  Chap.  X. 

(e)  Anli>,2iG.  (/)  B  Durnf.  &  Kast,  633;  and  see  2  Blac.  Rep.  1179. 
(<7)  Per  Cur.  E.  40  Geo.  TIL  K.  B.  1  New  Rep.  C.  P.  138,  (aju  1  Chit.  Rep.  445.  Ante,  275. 
[h)  1  Chit.  Rep.  446,  (a). 

(i)  3  Wils.  59;  and  see  1  11.  Blac.  638.     1  Bos.  &  PuL32.     1  New  Rep.  C.  137. 
(n)  1  Taunt.  163,;)cr  Heath,  J.  Imp.  C.  P.  7  Ed.  136.     Ante,  275. 
(6)2  Blac.  Rep.  1179. 

[a]  Bail,  may  at  any  time  during  the  return  term  of  the  writ  against  them,  surrender  their 
principal,  in  discharge  of  their  liability  on  payment  of  the  costs  of  the  writ  up  to  tliat  time, 
and  thercupoa  all  proceedings  shall   be  stayed,  and  an  exoneretur  be  entered  on  the  bail 


282  OF  SPECIAL  BAIL. 

secn,(<^t')  may  be  put  in  before  the  return  of  the  writ,  for  the  purpose  of  ren- 
dering tlie  defendant;  and  it  is  not  necessary,  in  either  court,  for  the  bail  to 
justify,  in  order  to  render,  even  after  they  are  excepted  to,  or  though  the 
shcriir  has  been  ruled  to  bring  in  the  body,(c^(^)  or  the  plaintiff  has  taken  an 
assignment  of  the  bail  bond.((.'e)  The  render  of  the  defendant  is  deemed 
equivalent  to  perfecting  bail :(/)  And,  in  the  King's  Bench,  the  sheriff  is 
not  liable  to  an  attachment,  when  the  defendant  is  rendered  at  any  time 
before  the  expiration  of  the  day  allowed  for  bringing  in  the  body  •,{g)  or 
even  after  the  rule  for  bringing  it  in  is  expired  ;{Ii)  And  the  bail  to  the 
shcrift'  are  entitled,  in  that  court  to  the  benefit  of  a  render  made  without 
justifying,  after  the  regular  time  of  justification  is  expired,  so  as  to  stay 
the  proceedings  against  them  on  the  bail  bond,  upon  payment  of  costs. (2) 
But  where  the  defendant  was  rendered  after  the  time  for  putting  in  bail 
had  expired,  but  within  the  further  time  allowed  him  for  that  purpose  by 
the  indulgence  of  the  court,  it  was  holden  that  the  render  was  out  of 
time,  and  that  an  attachment  issued  after  notice  thereof  was  regular,  and 
could  not  be  set  aside,  without  an  affidavit  of  merits  :{h)  And  where  the 
rule  for  the  allowance  of  bail  was  discharged,  on  account  of  perjury  in 
one  of  the  bail,  and,  pending  the  motion  for  setting  aside  the  allowance,  the 
defendant  was  rendered,  the  court  of  King's  Bench  held,  that  the  plain- 
tiff might  notwithstanding  proceed  on  the  bail  bond.(Z)  In  the  common 
Pleas,  where  the  sheriff  had  suffered  a  person  who  had  been  arrested  to 
go  at  large,  without  taking  a  bail  bond,  the  court  would  not  allow  him  to 
render  the  defendant,  after  an  action  commenced  against  him 
[  *283  ]  *for  an  escape,  though  he  had  not  been  ruled  to  return  the  writ, 
^  or  bring  in  the  body,  before  the  action  commenced. (a) 

^  After  judgment,  it  was  anciently  the  course  of  the  courts  not  to  allow  a 
/  render,  subsequently  to  the  return  of  non  est  inventus  to  a  capias  ad  satis- 
faciendum.[b)  But  great  mischief  resulted  from  this  practice :  for  the  plain- 
tiff would  sue  out  a  capias  returnable  the  next  day,  so  that  the  bail  had  little 
or  no  time  to  bring  in  the  body  :(<?)  To  remedy  which,  when  the  plaintiff 
proceeded  by  scire  facias  the  judges  indulged  the  bail  so  far,  as  to  permit 
them  to  render  the  body,  upon  the  return  of  the  first  scire  facias^  if  the 
capias  were  returnable  de  di  in  diem:{d)  but  if  it  were  returnable  the  next 

(cc)  Ante,  248. 

(dd)  Ashton  v.  King  and  another,  M.  21  Geo.  III.  R.  T.  33  Geo.  III.  K.  B.  5  Durnf.  & 
East,  368.  Barnes,  111,  117.  2  Blac.  Rep.  758,  1179,  80.  1  H.  Blac.  638.  Wardle,  one 
^c.  V.  Boidand,  M.  24  Geo.  III.  C.  P.  Imp.  C.  P.  7  Ed.  126. 

(ee)  5  Durnf.  &  East,  401. 

(/)  4  Taunt.  669.    2  Maule  &  Sel.  562.    3  Maule  &  Sel.  283.     1  Chit.  Rep.  446,  (a),  498. 

iff)  7  Durnf.  &  East,  527.     8  Durnf.  &  East,  464;  and  see  1  Price,  103. 

(h)  2  Maule  &  Sel.  562.     8  Dowl.  &  Ryl.  137. 

(«')  5  Durnf.  &  East,  534.  2  New  Rep.  C.  P.  85,  in  which  latter  case,  the  proceedings  were 
set  aside,  without  payment  of  any  costs,  except  those  of  the  assignment:  but  see  7  Durnf.  & 
East,  297,  se7nb.  contra.  This  latter  case,  however,  appears  to  have  been  overruled.  Id. 
529;  and  see  11  Price,  633. 

(k)  1  Chit.  Rep.  567  ;  and  see  8  Durnf.  &  East,  29.  9  East,  468,  S.  C.  cited.  1  Chit. 
Rep.  356,  496,  (a) ;  but  see  2  Maule  &  Sel.  562,  sonb.  contra:  and  see  1  H.  Blac.  9.  1  Bos. 
&  Pul.  325.  2  Bos.  &  Pul.  3%,  by  which  it  seems,  that  the  practice  is  diiferent  in  the  Com- 
mon Pleas. 

(l)  2  Barn.  &  Aid.  768.     1  Chit.  Rep.  496,  S.  C.  ;  but  see  1 1  Price,  633. 

(a)  6  Taunt.  554.  2  Marsh.  261,  S.  C. ;  and  see  6  Moore,  111;  but  see  1  Price,  103, 
contra;  and  see  5  Barn.  &  Cres.  244.     Ante,  236. 

(b)  Cro.  Eliz.  738.  (c)  1  Ld.  Raym.  157.  (d)  Cro.  Eliz.  618. 

piece,  and  during  that  term  the  court  may  in  its  discretion  grant  further  time  to  make  the 
surrender.     Breese  v.  Elmore,  4  Rich.  436, 


OF  SPECIAL  BAIL.  283 

term,  the  bail  were  strictly  holden  to  rentier  the  principal  by  the  return  of 
it.(t')  Fupham,  Ch.  J.  extended  this  indulgence  still  farther  and  permitted 
the  bail  to  render  anytime  before  the  return  of  the  second  scire  facias,  or 
upon  the  return,  scdente  eurid{ff)  This  practice,  however,  appears  to  have 
been  disallowed  by  Lord  Coke:{</i/)  but  it  was  soon  after  revived,  in  the 
time  of  Crolce  Ch.  J.  :{JiIt)  and  accordingly,  it  is  now  fully  settled,  that  in  the 
King's  Bench,  the  render  may  be  made  at  any  time  before  the  rising  of  the 
court,  on  the  return  day  of  the  second  scire  facias,  or  of  the  first,  when 
scire  feci  is  returned,  by  biU,{ii)  or  by  original  in  that  court,  as  well  as  in 
the  Common  Pleas,  at  any  time  before  the  rising  of  the  court  on  the  appear- 
ance day,  or  quarto  die  j^ost  of  the  return,  of  the  second  scire  facias,{k) 
or  of  the  first,  where  scire  feci  is  returned, (^)  and  not  after. (??j)  Before 
the  return  of  the  capias  ad  satisfaciendum,  the  render  is  a  matter  of  right, 
and  may  be  pleaded.(w)  1  But  afterwards  it  is  allowed  by  the  grace  and 
favour  of  the  courts,fnjPand  not  ex  dehito  justitiae ;  for  the  condition  of 
the  recognizance  is  broken,  upon  the  return  of  non  est  inventus  to  the 
capias :  and  therefore  a  subsequent  render  cannot  be  pleaded  ;( p)  though, 
if  made  in  time,  the  bail  may  be  relieved  by  motion. (j:))  If  the  bail,  at 
any  time  after  the  return  of  the  cajnas,  render  the  principal  at  a  judge's 
chambers,  and  he  be  committed  to  a  tipstaff,  from  whom  he  escapes  or  is 
rescued,  that  will  not  be  a  good  render  ;{q)  for  the  courts  will  not  suffer 
the  plaintiff  to  be  prejudiced,  by  their  indulgence  to  the  bail. 

When  the  plaintiff  proceeds  by  action  of  debt  on  the  recognizance,  the 
render  may  be  made,  in  the  King's  Bench,  by  the  space  oi  eigltt 
entire  days,  *in  full  term,  next  after  the  return  of  the  latitat,  or  [  *284  ] 
other  process  against  the  bail: (a)  and  an  intervening  ^S'ltwc^ay 
is  to  be  reckoned  as  one  of  the  eight  days  allowed  for  rendering  the 
defendant. (J)  If  there  be  not  the  full  number  of  days  in  the  same  term, 
they  must  be  made  up  in  the  following  one  :  And  if  an  action  be  brought 
here  against  bail,  on  a  recognizance  taken  in  the  Common  Pleas,  they 
have  the  same  time  allowed  them  for  rendering  the  principal,  as  if  the 
recognizance  had  been  taken  in  this  court. (c)  Where  an  action  Avas  com- 
menced, and  afterwards  discontinued,  and  then  the  bail  rendered  the  prin- 
cipal before  the  bringing  of  a  new  action,  the  court  held  the  render  to  be 
good,  it  being  before  the  return  of  the  process  in  this  suit ;  and  it  was  the 
fault  of  the  plaintiff  not  to  begin  right  at  first.(fZ)  So,  where  the  plaintiff 
sued  the  bail  on  their  recognizance,  who  did  not  render  the  principal 
within  eight  days,  and  then  the  plaintiff  died,  and  his  executors  brought 
another  action  against  the  bail,  it  was  ruled  that  the  bail  had  eight  days 
from  the  return  of  the  process  in  the  second  action,  to  render  the  princi- 
pal.(tf)     In  the  Common  Pleas,  the  render  must  be  made  before  the  rising 

(c)  Id.  738.  (/)  Cro.  Jac.  109.  [gg)  Moor,  850.   3  Bulst.  182,  S.  C. 

(M)  W.  Jon.  139.     Sty.  Rep.  134.     8  Mod.  32. 

(tV)  1  Ld.  Raym.  157.  6  Mod.  238.  8  Mod.  340.  R.  T.  1  Ann.  rfg.  2,  {a).  R.  E.  5  Geo. 
II,  reg.  3,  (a),  K.  B. ;  and  see  1  Barn.  &  Cres.  247.     2  Dowl.  k  Ryl.  385,  S.  U. 

m  1  Wils.  270.  (/)  4Bur.  2134. 

(m)  Per  Cur.  T.  21  Geo.  III.  K.  B.  3  Bur.  13C0.  1  Hlac.  Rep.  393,  S.  C.  K.  B.  R.  M. 
1654,  §  12,  {a).     Cas.  Pr.  C.  P.  63.     Barnes,  82.     2  H.  Blac.  593,  C.  P. 

(n)  1  Ld.  Rayra.  15G,  7.     Ihalqi  v.  Medley,  M.  24  Geo.  III.  K.  B. 

(o)  R.  T.  1  Ann.  reg.  2,  (fl),  K.  B. 

(;>)  llcnUy  V.  Mcdhy,  M.  24  Geo.  III.  K.  B.     Barnes,  lOG,  7. 

iq)  6  Mod.  238.     R.  T.  1  Ann.  rcg.  2,  ('/),  K.  B. 

(a)  R.  T.  1  Ann.rfy.  1,  K.  B.     1  Salk.  101.     1  Ld.  Raym.  721.     6  Mod.  132. 

(h)  14  East,  537,  (c)  7  Durnf.  &  East,  355.      * 

{d)  2  Str.  915.  (<■«)  8  Durnf.  &  East,  422. 


284 


OF  SPECIAL  BAIL. 


of  the  court,(/)  on  the  quarto  die  post  of  the  return  of  the  process  •,{g) 
which  must  be  served  on  the  bail  four  days  at  least  before  the  return. (A) 
And  in  that  court,  they  are  allowed  the  same  time  for  rendering  the 
defendant  on  an  attachment  of  privilege,  as  on  a  common  capias.{i)  And 
if  a  bail  be  served  with  process  on  his  recognizance,  and  die  before  the 
quarto  die  post,  and  fresh  process  issue  against  his  executors,  they  have 
until  the  quarto  die  post  of  the  return  of  the  second  writ,  to  surrender  the 
principal. (Z:/;;!)  In  the  Exchequer,  on\j  four  days  are  allowed  the  bail  to 
surrender  their  principal,  when  the  plaintiff  proceeds  by  subpoena  ;{U) 
though  eigJit  days  are  allowed,  when  the  proceeding  is  by  quo  miiius  :{m) 
In  calculating  the  four  days,  one  is  reckoned  inclusive,  and  the  other 
exelusive.[n)  And  if  an  action  be  brought  in  this  court,  against  bail, 
upon  their  recognizance  entered  into  in  the  King's  Bench,  they  must 
render  their  principal,  as  if  the  recognizance  had  been  taken  in  the 
Exchequer,  (o) 

It  was  not  formerly  usual  for  the  courts  to  enlarge  the  time  for  bail  to 
surrender  their  principal :  And,  in  one  case,(ji?)  the  court  of  King's  Bench 
refused  to  enlarge  it,  on  an  affidavit  that  the  principal  could  not  be 
removed,  without  endangering  his  life;  and  in  another,(^)  on  the  ground 
of  the  unwarrantable  arrest  and  detention  of  the  principal  by  a  foreign 
enemy.  So  they  refused  to  enlarge  the  time  for  the  bail  to 
[  *285  ]  render  their  *principal,  on  an  affidavit  that  he  was  a  lunatic  ;  it 
not  appearing  that  he  was  in  such  a  state  as  to  occasion  any  im- 
mediate peril  of  life,  either  to  himself  or  those  about  him. (a)  But  in  a 
later  case,(5)  time  was  allowed  for  the  bail  to  surrender  their  principal, 
where,  the  latter  being  in  custody  under  the  process  of  another  court,  it 
appeared  on  the  return  made  to  a  habeas  corpus  issued  by  the  bail  in 
order  to  render  him,  that  he  could  not  be  removed  out  of  such  custody, 
without  danger  to  his  life,  and  that  such  impossibility  still  continued. 
And  where  the  return  to  a  writ  of  latitat  stated,  that  the  defendant  was 
insane,  and  could  not  be  removed  without  great  danger,  and  continued  so 
till  the  return  of  the  writ,  the  court  refused  an  attachment  against  the 
sheriff. (c)  So,  where  the  principal  has  become  bankrupt,  the  courts  will 
enlarge  the  time  for  surrendering  him,  till  after  he  has  finished  his  last 
examination. ((^)  So,  where  the  defendant  was  in  the  criminal  custody  of 
the  court  of  King's  Bench  for  a  conspiracy,  the  court  of  Common  Pleas, 
though  they  would  not  take  him  out  of  such  custody,  enlarged  the  time 
for  the  bail  to  render  him  in  their  discharge. (e)  And  time  has  been 
enlarged,  in  the  Exchequer,  for  the  bail  to  surrender  their  principal,  till 
a  week  after  the  expiration  of  the  term  of  his  imprisonment  in  a  county 
gaol,  under  a  conviction  and  sentence  for  a  misdemeanour.(^)    The  court 

(/)  Gas.  Pr.  C.  P.  53.     Barnes,  82.     2  H.  Blac.  593. 

[g)  R.  M.  1654,  ?  12,  C.  P.     2  H.  Blac.  118. 

[h]  Cas.  Pr.  C.  P.  18.     Pr.  Reg.  83.     Barnes,  62.     6  Taunt.  286. 

(i)  2  H.  Blac.  117.  [hk)  1  Bos.  &  Pul.  61. 

{It)  2  Price,  296.     1  Younge  &  J.  15. 

(m)  Wightw.  79.     5  Price,  170.     1  Younge  &  J.  15  ;  and  see  Forrest,  26. 

(ra)  2  Price,  298,  («)•  (o)  1  Younge  &  J.  15. 

{p)  4  East,  102;  and  see  10  Moore,  170.     8  Dowl.  &  Ryl.  606.  {q)  4  East,  189. 

(a)  13  East,  355  ;  and  see  2  Chit.  Rep.  104.     4  Barn.  &  Aid.  279. 

h]  16  East,  389.  (c)  4  Barn.  &  Aid.  279. 

\d)  3  East,  145,  K.  B.     1  Taunt.  320,  0.  P.     1  Price,  74.     Excheq.  but  see  4  Bing.  80. 

\e)  3  Moore,  259.      1  Brod.  &  Bing.  23,  S.  C. 

(/)  13  Price,  523,  M'Clel.  252,  S.  C. 


OF  SPECIAL  BAIL.  285 

of  King's  Bench,  however,  will  not  grant  a  rule  for  that  purpose,  unless  it 
be  sworn  that  the  application  is  made  by  the  bail.(^) 

When  the  defendant  is  at  larfn\[h)  he  may  come  and  render  himself,  or 
be  taken  and  rendered  by  his  bail,  either  in  court,  if  sitting,  or  before  a 
judge  at  his  chambers  ;  and  the  court  or  judge  will  make  out  a  committitur^ 
or  minute  of  the  render(i)  and  commitment,(/(")  an<l  cause  the  defendant  to 
be  sent  therewith,  in  custody  of  a  tip-staff,  to  the  King's  Bench  or  Fleet 
prison. (Z)[a]  When  bail  above  are  put  in,  tlie  principal  is  supposed  tube  de- 
livered into  their  custody  by  the  court  •,[mm)  as  is  evident  from  the  language 
of  the  bail-piece,  which  states  him  to  be  delivered  to  bail,  kc. :  and  it  is 
said  that  they  have  their  principal  always  in  a  string,  which  they  may  pull 
whenever  they  please,  and  render  him  in  their  discharge. (»ni)  The  bail  may 
also  take  their  principal  on  a  Sunday,  in  order  to  render  him  \{o)  and  they 
may  even  take  him,  during  his  examination  before  commissioners  of  bank- 
rupt,(p)  or  going  to  a  court  of  justice. ((/)  So,  they  may  justify  entering 
the  house  of  a  third  person,  in  which  the  principal  resides,  the  outer  door 
being  open,  in  order  to  seek  after,  for  the  purpose  of  rendering  him, 
although  the  principal  was  not  in  the  house  at  the  time.(?')  When 
the  ^principal  is  taken,  one  of  the  bail,  it  is  said,  must  always  [  *28G  ] 
remain  Avith  him  ;  for  they  cannot  depute  their  right  of  custody  to 
another,  without  the  defendant's  consent  in  writing,  till  he  be  rendered  ;(a) 
but  it  has  been  determined,  that  a  third  person  may  assist  the  bail  in 
taking  their  principal,  and  may  lawfully  detain  him,  although  the  bail  do 
not  continue  present. (5)[b]  A  render  may  be  made  by  the  party  himself, 
without  an  attorney  :(c')  and  it  is  not  necessary  that  the  defendant  should  be 
taken  to  a  judge's  chambers,  for  the  purpose  of  rendering  him  in  discharge 
of  his  bail,  unless  he  desire  it  -.{d)  nor  that  a  committitur  should  be  entered, 
when  a  principal  is  rendered  in  discharge  of  his  bail,  but  the  bail  may 

(^r)  2  Chit.  Rep.  101. 

(A)  6  Mod.  231.  (0  R.  T.  3  Ann.  K.  B. 

\k)  Append.  Chap.  XII.  §  49.  {I)  1  Chit.  Rep.  3(34. 

(mm)  4  Inst.  178.     2  Hawk.  P.  C.  88.  (h«)  6  Mod.  231. 

(o)  Ante,  218.  {p)  Ante.  197,  201. 

iq)  1  Sel.  Pr.  2  Ed.  170  ;  and  see  3  Stark.  Ni.  Pri.  132.  Dowl.  k  Ryl.  Ni.  Pri.  20.  Ante, 
197. 

(r)  2  11.  Blac.  120. 

(a)  1  Scl.  Pr.  2  Ed.  170.  {b)  3  Taunt.  425. 

(c)  2  Chit.  Rep.  99.  (d) /rf.  74. 

[a]  The  surrender  of  a  principal  by  the  sureties  on  the  bail  bond  must  be  by  some  dis- 
tinct unequivocal  act,  accom[>anied  by  such  declarations  or  acknowledgment,  as  show  its 
j>urpose  and  the  case  to  which  it  applies,  and  be  guarded  by  the  means  of  clear  proof. 
Bomar  v.  Poole,  2  Speers,  119.  Thus,  it  has  been  held  that  a  voluntary  surrender  by  the 
principal  to  the  sheriff  without  the  knowledge  of  his  bail,  will  discharge  the  bail ;  and  plac- 
ing himself  in  the  sherifTs  power  for  the  purpose  of  being  detained,  is  a  surrender.  Deck  v. 
Stoker,  1  Dev.  91.  So  a  surrender  of  the  principal  to  the  oflicer  holding  the  execution  before 
it  is  returnable  discharges  the  bail.  Champion  v.  Koyes,  2  Mass.  485.  Rice  v.  Carnes,  8  Id. 
490.  Collins  V.  Cook,  4  Day,  1.  lit/an  v.  Watson,  2  Greenl.  382.  So,  pending  an  action,  the 
]irinciplc  may  be  surrendered  in  court  in  discharge  of  bail's  liability.  Cooledge  v.  Gary,  14 
Mass.  115.  A  principal  confined  in  prison  for  crime  may  be  brought  into  court  by  habeas 
corpus  and  surrendered  in  discharge  of  bail.  Jiigelow  v.  Johnston,  16  Mass.  218.  Bigncll  v. 
Forrest,  2  Johns.  482.  Cathcart  v.  Cannon,  1  Johns.  Cas.  28.  Loflin  v.  Fowler,  18  Johns. 
335.  Rugglcs  v.  Corraj,  3  Conn.  419.  Canhy  v.  Grijjin,  3  Harring.  333.  Consent  by  the 
plaintiff  to  the  entry  of  an  cxoneretur  will  discharge  the  bail.  Kellogg  v.  Munroc,  9  Johns. 
300.  Hail  are  regarded  as  sureties  and  are  entitled  to  the  benefit  of  the  general  principles 
applicable  to  sureties.  Rathbonc  v.  Warren,  10  Johns.  587.  Edwards  v.  Coleman,  6  Monr. 
573. 

[b]  Special  bail  may  arrest  his  principal  anywhere.     The  State  v.  Mahon,  3  Harring.  568. 


286 


OF  SPECIAL  BAIL. 


enter  an  exoneretur,  and  be  discharged. (c)  In  the  King's  Bench  it  is  a 
rule  that  "  under  every  commitment  should  be  entered  the  state  of  the 
cause,  at  the  time  of  the  render :  If  before  declaration,  the  sum  sworn  to 
on  the  arrest ;  but  if  after  declaration,  these  words  should  be  added, 
declaration  filed  or  deUve7'ed,  issue,  or  interlocutor^/  judgment  signed,  as 
the  case  is  :(/)  If  after  final  judgment  in  debt,  the  debt  and  damages  ; 
in  other  cases,  the  quantum  of  the  damagcs.'\g)  In  the  Common  Pleas, 
the  filacer  attends  with  his  book,  at  the  judge's  chambers,  and  takes  the 
render :  And  where  it  was  made  on  the  last  day.  the  court  ordered  the 
hour  of  the  day,  or  true  time  of  the  defendant's  surrender,  to  be  entered 
by  the  filacer,  in  order  that  it  might  appear  whether  the  surrender  was 
made  before  or  after  the  rising  of  the  court.(7?) 

When  the  defendant  is  in  custody  on  civil  process,  there  must  be  a 
habeas  corpus  cum  causd  for  bringing  him  up,  in  order  to  render  him  in 
discharge  of  his  bail.  This  writ  may  be  issued  in  term  or  vacation, 
returnable  immediate  ;[i)  and  the  judge  will,  on  the  defendant's  being 
brought  up,  either  commit  him  to  the  custody  of  the  marshal  in  the  King's 
Bench,  or  warden  of  the  Fleet,  in  the  Common  Pleas  and  Exchequer,  or 
remand  him  to  his  former  custody.  In  general,  when  the  crown  is  not 
concerned,  the  court  will  commit  the  defendant  to  the  custody  of  the 
marshal,  or  warden  :  But  where  an  impressed  man,  not  being  liable  to  be 
taken  out  of  the  king's  service,  by  any  process,  other  than  for  some 
criminal  matter,  was  brought  up  by  the  keeper  of  the  Savoy,  to  be  sur- 
rendered in  discharge  of  his  bail,  the  court  of  King's  Bench  first  committed 
him  to  the  custody  of  the  marshal,  and  then  ordered  him  to  be  delivered 
instanter  to  the  keeper  of  the  Savoy  ;  which  was  done,*and  an  exoneretur 
entered  on  the  bail-piece.(Z:)  A  certiorari  will  not  lie,  to  remove  the  record 
of  a  judgment  obtained  against  a  defendant  in  the  county  palatine  of 
Durham,  for  the  purpose  of  enabling  his  bail  to  render  him  in  the  King's 
Bench,  though  he  be  a  prisoner  for  debt  in  the  custody  of  the  marshal. (?) 
*When  the  defendant  is  in  custody  on  a  criminal  account,  the 
[  *287  ]  court  of  King's  Bench  will  in  some  cases  grant  a  habeas  corpus 
ad  subjiciendum,  for  bringing  him  up  ;  as  where  he  is  in  custody 
under  a  charge  of  felony,(rt)  or  of  obtaining  money  under  false  pretences, (6) 
or  has  been  committed  to  prison  by  commissioners  of  bankrupt,  for  not 
answering  questions  to  their  satisfaction. («?)  The  habeas  corpus,  in  these 
cases,  must  be  issued  on  the  eroivn  side  of  the  court  of  King's  Bench ;  on 
which  side  also  must  be  taken  out  the  subsequent  rule  for  the  defendant's 
surrender  in  the  action,  his  commitment  pro  for md  to  the  marshal,  and  his 
recommitment  to  his  former  custody,  charged  with  the  several  matters 
ao'ainst  him:((f)  And  under  this  writ,  the  court  will  remand  him  to  his 
former  custody. (eg)    But  if  a  defendant  be  in  the  criminal  custody  of  the 

(e)  Humphries  v.  Ditcher,  E.  21  Geo.  III.  K.  B. 

(/•)  Append.  Chap.  XIL  §  50. 

(g)  R.  E.  8  Geo.  III.  K.  B.     Append.  Chap.  XII.  g  51. 

(h)  Barnes,  69.  (?)  3  Bur.  1875. 

Ik)  1  Bur.  339  ;  but  see  7  East,  405,  where  the  court,  in  a  similar  case,  ordered  an  exoneretur 
to  be  entered  on  the  bail-piece,  in  the  first  instance. 

(I)  2Dowl.  &Ryl.  177. 

(a)  7  Durnf.  &  East,  226.  {h)  15  East,  78;  but  see  13  East,  457. 

(c)  Exparteredln/,  T.  23  Geo.  III.  K.  B.;  and  see  3  East,  232,  stat.  5  Geo.  II.  c.  30,  §  18. 
6  Geo.  IV.  c.  16,  ^  39. 

{d)  3  East,  232. 

\ee)  2  Str.  1217  ;  but  see  4  Bur.  2034,     7  Durnf.  &  East,  227. 


OF  SPECIAL  BAIL.  287 

court  of  King's  Bench,  the  Court  of  Common  Pleas  will  not  take  him  out 
of  such  custody,  in  order  to  surrender  him  in  discharge  of  his  huil;(/) 
though,  if  the  imprisonment  in  such  case  were  only  temporary,  the  court 
would  it  seems  relieve  the  bail,  by  enlarging  the  time  for  surrendcrin'T^  the 
principal,  until  after  the  time  of  his  imprisonment  has  expired.(,(7) 

When  the  croivii  is  concerned,  the  courts  will  not,  in  general,  chancre 
the  custody,  without  the  express  consent  of  its  ofricers:(/i)  Though  where  a 
defendant,  being  charged  in  custody  upon  an  extent  or  injur  mat  iu  a,  or  for 
a  contempt  in  not  paying  the  king's  debt,  is  brought  up  to  the  court  of 
King's  Bench  on  a  habeas  corpus,  to  be  surrendered  in  discharge  of  his 
bail,  and  it  appears  that  the  civil  action  in  which  he  was  bailed  was  com- 
menced before  the  other  proceedings,  and  the  court  are  satisfied  that  it  is  for 
ajustdebt,  andthe  application  really  made  by  the  bail,  they  willcommit  him 
as  their  prisoner,  to  the  custody  of  the  marshal :  For,  by  the  '2-')  Edw.  111. 
Stat.  5,  c.  I'J,  "  the  king's  debtors  shall  not  be  protected  from  the  proceedings 
of  their  other  creditors  against  them."(i!;')  The  attorney  general,  however 
may  have  a  habeas  corpus^  to  remand  the  defendant.  (A;)  lu  the  Common 
Pleas,  where  A.  was  arrested  and  held  to  bail  in  a  civil  action,  after  which 
an  extent  issued  against  him  at  the  suit  of  the  crown,  and  he  was  thereupon 
committed  to  the  custody  of  the  sheriffs  of  London  ;  on  an  application  to 
the  court  by  the  bail  for  relief,  it  was  holden,  1st,  that  the  bail  were  not 
entitled  to  enter  an  exoneretur  on  the  bail-piece  ;[a]  2dly,  the  crown 
having  refused  its  consent  to  the  defendant's  being  surrendered,  unless 
he  should  be  immediately  remanded  to  the  custody  of  the  marshal,  that 
this  court  would  have  no  authority  so  to  remand  him,  after  he  had 
*been  surrendered  to  the  warden  of  the  Fleet ;  and  3dly,  that  the  [  *288  1 
bail  could  not  surrender  the  defendant  by  habeas  corpus,  as  a 
matter  of  right,  without  the  consent  of  the  crown  :{a)  But  the  court  ex- 
pressed their  readiness  to  give  the  bail  time  for  surrendering  the  defen- 
dant.(a) 

The  defendant  being  rendered,  notice  thereof  should  be  given,  without 
delay,  to  the  plaintiff's  attorney  ;(6)  to  the  end  that  the  plaintiff,  if  he 
think  proper,  may  charge  the  defendant  in  execution,  or  at  least  that  he 
may  not  be  at  any  further  trouble  or  expense  in  proceeding  against  the 
bail.  If  the  plaintiff"  therefore,  through  want  of  notice,  continue  to  pro- 
ceed against  the  bail,  though  this  will  not  vitiate  the  render,  yet  they  shall 
not  be  relieved  until  they  have  paid  the  charges. (c)     But  the  notice  need 

(/)  3  Moore,  259.     1  Brod.  &  Bing.  23,  S.  C. ;  and  see  13  East,  457. 

(y)  Ante,  285. 

(A)  Rejcy.  Fedley,  T.  23  Geo.  IIL  K.  B.  Barnes,  385,  388.  5  Taunt.  503.  1  Marsh,  IGC 
S.  C.  8  Taunt.  148.  2  Moore,  33,  S.  C.  3  Moore,  259.  1  Brod.  &  Bing.  23,  S.  C. ;  and 
see  West  on  Extents,  90,  Ac,  95. 

(i)  Hob.  115.  1  Salk.  353.  1  Str.  G41.  1  Wils.  248.  1  Bur.  339;  and  see  West  on 
Extents,  91,  &c. 

(k)  I  Wils.  248.     Barnes,  288. 

{a)  5  Taunt.  503.    1  Marsli.  166,  S.  C. 

\lj)  7  Uurnf.  &  East,  528.  8  Durnf.  k  East,  223.  3  Bos.  &  Pul.  232.  1  Price,  333.  Append 
Chap.  XII.  §  52. 

(c)  11.  T.  1  Ann,  reg.  2,  (a),  K.  B.  6  Mod.  238.  8  Mod.  231.  4  Bac.  Abr.  420,  21.  5 
Durnf.  &  East,  368.  8  Durnf.  &  East,  222.  3  Barn.  &  Cres.  112.  4  Dowl.  &  Uyl.  712,  a.  C.  ; 
and  see  Append.  Chap.  XII.  ^  53. 


[\]  But  where  the  governor  of  one  State  in  the  Union  delivered  one,  on  requisition,  to  the 
authorities  of  another  State,  who  was  under  bail  at  the  time  on  a  criminal  charge,  it  was 
held  that  such  delivery  discharged  the  bail  from  bis  recognizance.  The  Slate  v.  Allen  2 
Humph.  258.  ' 


OQQ  OF  SPECIAL  BAIL. 

not  be  '^iven  before  the  rising  of  the  court,  on  the  day  of  render  :{d)  And 
if  the  principal  be  surrendered  in  time,  but  the  bail  omit  to  give  regular 
notice  of  it  to  the  plaintiff,  in  consequence  of  which  he  proceeds  upon  the 
bail  bond,  or  against  the  sheriff,  the  bail  may  apply  to  set  aside  the  pro- 
ceedings, on  payment  of  costs,  even  after  the  execution  levied,  and  the 
money  is  in  the  sheriff's  hands. (e)  After  due  notice  of  the  render  of  the 
principal,  the  plaintiff  still  proceeded  against  one  of  the  bail,  in  an  action 
of  debt  on  the  recognizance,  because  no  offer  was  made  to  pay  the  costs 
in  the  suit  against  him,  nor  any  rule  obtained  to  stay  proceedings  on  pay- 
ment of  costs;  and  the  court  of  King's  Bench  held  the  subsequent  pro- 
ceedings to  be  irregular,  being  contrary  to  the  rule  of  Trin.  1  Ann,  which 
declares  that  on  such  notice  of  render,  all  further  proceedings  against  the 
bail  shall  cease.(/)  In  the  King's  Bench,  an  affidavit  is  required  to  be 
made  of  the  service  of  notice  of  render ;  [c)  but  this  seems  to  be  only  for 
the  purpose  of  getting  the  bail-piece  from  the  judge's  chambers,  and  not 
necessary  in  order  to  make  the  render  complete,  so  as  to  discharge  the 
bail  below,  and  prevent  an  attachment  against  the  sheriff  :(</)  Therefore, 
an  attachment  issued  after  notice  of  render,  but  before  affidavit  thereof, 
is  irregular,  in  the  King's  Bench  ;(/t)  and,  in  the  Common  Pleas,  an  affi- 
davit of  the  service  of  notice  of  render  is  altogether  unnecessary. (z) 

The  next  step  to  be  taken,  in  order  to  discharge  the  bail,  in  the  King's 
Bench,  is  to  enter  an  exoneretur  on  the  bail-piece  :[a]  to  effect  which,  the 
bail-piece,  if  not  already  got,  should  be  obtained  from  the  judge's  cham- 
bers, and  a  certificate(Z:)  from  the  prison,  that  the  defendant  is  in  custody. 

(d)  Per  cur.  H.  26  Geo.  III.  K.  B.  5  East,  533  ;  and  see  2  Smith,  R.  242.  2  Chit.  Rep. 
103. 

(e)  8  Durnf.  &  East,  222  ;  and  see  1  Price,  338.  2  Chit.  Rep.  103,  (a).  5  Barn.  &  Cres. 
244. 

(/)  3  East,  306  ;  and  see  R.  M.  1654,  §  12,  C.  P.  Humphries  v.  Ditcher.     E.  21  Geo.  III. 
K.  B.     16  East,  168,  9.     1  Maule  &  Sel.  742.     2  Chit.  Rep.  100. 
(c)  Ante,  287,  note  (c). 

lo)  1  Chit.  Rep.  360.  [h]  Id.  359. 

(t)  Imp.  C.  P.  7  Ed.  529.  (k)  R.  T.  3  Ann,  (a),  K.  B. 

[a]  It  has  been  held,  that  a  statute  abolishing  imprisonment  for  debt  operating  to  dis- 
charge such  as  may  be  imprisoned  at  the  time  of  its  passage,  operates  to  discharge  a 
recognizance  of  bail  entered  into  before  that  time.  Tousey  v.  Areny,  11  Ohio,  90;  and 
special  bail  may  apply  for  an  exoneretur,  on  the  ground  that  the  right  to  imprison  the 
principal  was  abolished  previous  to  the  expiration  of  the  time  within  which  the  principal 
might  have  been  surrendered.  White  v.  Blake,  22  Wend.  612.  Harrington  y.  Hennie,  13 
Mais.  94.  Gillespie  v.  Heidings,  2  Barr,  492.  Newton  v.  Tibbatts,  2  Eng.  150.  Branson  v. 
Newbemi  2  Doug.  Mich.  R.  38.  An  exoneretur  will  also  be  entered  where  the  principal  has 
been  discharged  as  an  insolvent  debtor  since  the  rendition  of  judgment  against  him. 
Trumhall  v.  Healey,  21  Wend.  670;  and  generally  a  discharge  of  the  principal  under  the 
insolvent  or  bankrupt  law  before  the  bail  ar-e  fixed,  entitles  them  to  an  exoneretur  without 
a  surrender.  Saunders  v.  Bobo,  2  Bailey,  492.  Seaman  v.  Drake,  1  Caines,  9.  Kane  v. 
Ingraham,  2  Johns.  Cas.  403.  Champion  v.  Noyes,  2  Mass.  481.  Bailey  v.  Seal,  1  Barring. 
367.  irGlenscy  v.  M'Lear,  Id.  466.  Harrison  v.  Young,  1  Harr.  &  J.  102.  3ICauseland  v. 
Waller  Id.  156.  ilKing  v.  Marshall,  Id.  101.  Richmond  v.  De  Young,  3  Gill.  &  Johns.  64. 
Rotvland  v.  Stevenson,  1  Halst.  149.  A  discharge  of  the  principal  is  in  all  cases  equivalent 
to  a  surrender  and  bail  may  avail  themselves  of  it  if  it  be  obtained  at  any  time  before  the 
time  allowed  to  surrender  has  expired.  Olcott  v.  Lilly,  4  Johns.  407.  Rathbone  v.  Black- 
ford, 1  Caines,  588.  Kenly  v.  Hughes,  1  Browne,  258.  But  if  the  principal  neglects  to  avail 
himself  of  his  discharge,  and  suffers  judgment  to  go  against  him,  the  court  will  not  allow  an 
exoneretur  to  be  entered.  Mechanics' Bank  v.  IIazzard,9  Johns.  302.  Fost  v.  Riley,  18  lb. 
54.      Campbell  v.  Palmer,  6  Cow.  596. 

A  judgment  on  the  merits  in  favour  of  the  principal,  though  it  may  afterwards  be  reversed 
on  error,  discharges  the  bail.  Butler  v.  Bissell,  1  Root,  102.  Fleming  v.  Lord,  Id.  214. 
Ainsworth  v.  Peabody,  Id.  469.     Lockwood  v.  Jones,  7  Conn.  439. 


OF  SPECIAL  BAIL.  288 

These  bciri!];  carried  to  the  master,  he  ^vill  enter  an  exoneretur 
on  the  *bail-piece,  whicli  should  then  be  filed  with  the  signer  of  [  *289  ] 
the  writs  ;  for  if  the  bail-piece  be  filed  without  an  cxom-retur, 
the  bail  remain  liable,  though  the  defendant  be  actually  in  prison. (aa) 
Yet,  where  the  bail-piece  has  been  previously  delivered  out  to  be  filed,  to 
the  plaintiff's  attorney,  who  neglects  to  file  it,  he  cannot  proceed  against 
the  bail,  for  want  of  an  exoneretur  :{hh)  And  Avhere  the  render  is  in  other 
respects  regular,  the  court  will  not  order  an  exoneretur  to  be  entered  on 
the  bail-piece,  upon  paying  the  costs  that  have  accrued  subsequent  to  the 
render. (c)  In  the  Common  Pleas,  the  exoneretur  is  entered  in  the  filacer's 
book,  on  making  the  render  at  the  judge's  chambers.(fZ)  And  when  judg- 
ment having  been  entered  up  against  a  defendant  in  the  Common  Pleas, 
he  brought  a  writ  of  error  in  the  King's  Bench,  where  the  judgment  was 
affirmed,  and  afterwards  brought  a  writ  of  error  in  the  House  of  Lords, 
and  pending  such  a  writ  surrendered  himself  in  discharge  of  his  bail  to 
the  King's  Bench  prison ;  the  court  of  Common  Pleas  held,  that  the  bail 
were  entitled  to  have  an  exoneretur  entered  on  the  bail-piece  ;  as  the  re- 
cognizance of  bail  still  remained  in  that  court,  where  the  action  was  origi- 
nally commenced ;  and  that  the  defendant  having  been  rendered  to  the 
King's  Bench  prison,  the  terms  of  the  recognizance  could  not  be  complied 
with,  as  that  court  ■would  not  allow  him  to  be  delivered  up  or  transferred 
to  any  other  custody.(g)  It  was  formerly  usual  to  make  an  entry  of  the 
render  in  the  marshal's  book,  kept  in  the  King's  Bench  office ;(/)  but  this 
is  now  holden  to  be  unnecessary  :[g)  the  practice  being,  when  the  bail 
bring  the  defendant  to  the  judge's  chambers  to  be  rendered,  for  the  judge 
to  make  out  a  committitur,  w  hich  is  delivered,  together  with  the  prisoner, 
to  the  tipstaff,  who  carries  him  to  the  King's  Bench  prison,  and  there 
delivers  the  prisoner,  with  the  committitur,  to  the  marshal  or  his  officer  ;(7i) 
and  it  is  the  duty  of  the  clerk  of  the  papers  there,  to  make  an  entry  in 
the  marshal's  book. (A) 

The  bail  to  the  action  are  excused  from  the  performance  of  the  condi- 
tion of  the  recognizance,  by  the  act  of  God,  as  by  the  death  of  the  prin- 
cipal before  the  return  of  the  capias  ad  satisfaciendum  ;\_a]  or  by  act  of 
laiv,  as  by  his  being  made  a  peer  of  the  realm,  or  member  of  the  house  of 
commons,  or  becoming  bankrupt  and  obtaining  his  certificate,  or  being 
discharged  under  an  insolvent  debtors'  act,  or  by  his  being  under  sentence 
of  transportation,  or  impressed  into  the  king's  service,  or  sent  out  of  the 
kingdom  under  the  alien  act,  &c. ;  or  by  act  or  default  of  the  plaintiff,  as 
by  his  not  proceeding  in  the  action  in  due  time,  or  proper  manner,  or  by 
his  taking  a  cognovit,  and  giving  time  thereby  to  the  principal,  without 
the  consent  of  the  bail. 

*Wlien  the  defendant  dies  before  the  return  of  the  capias  ad  [  *200  ] 
satisfaciendum,  as  it  is  impossible  for  the  bail  to  render  him, 

(aa)  R.  E.  I  Ann,  reff.  2,  (a),  K.  B.     1  Salk.  98.     8  Mod.  282. 
{bb)  8  Mod.  280.     Barnes,  68,  S.  P. 

(c)  Say.  Rep.  7,  8.     1  Bur.  409. 

(d)  Imp.  G.  P.  7  Ed.  528.  (<•)  9  Moore,  G.'i.     2  Biiig.  18,  S.  C. 

(/)  R.  T.  3  Ann,  (a),  K.  B. ;  and  see  1  Salk.  272,  3.  12  Mod.  583,  S.  C.  2  Sir.  1215, 
1226.    2  Bur.  1049.     2  Smith,  R.  243.     1  Chit.  Rep.  3GI. 

(ff)  2  Barn.  &  Aid.  607.  1  Chit.  Rep.  359,  S.  C.         (h)  1  Chit.  Rep.  364. 

[a]  See  Arthur  v.  Antonio,  1  Nott  &  M'Cord,  251.  Champion  v.  Noyes,  2  Mass.  485. 
^Vhi(c  V.  Cummins,  1  Overt.  224.  IJank  v.  Pollock,  1  Ham.  35.  Bulkky  v.  Cotton,  1  Johns. 
515.     GriJ/in  v.  Moor,  2  Kelly,  331. 


290 


OF  SPECIAL  BAIL. 


they  arc  discharged  from  their  recognizance :  But  if  the  death  happen 
after  the  return  of  the  capias  ad  satisfaciendum,  and  before  it  is  filed,  the 
bail  are  fixed. (a)  And  the  courts,  we  have  seen, (6)  will  not  discharge 
them,  on  the  ground  of  the  insanity  of  their  principal :  although  a  com- 
mission of  lunacy  may  have  issued,  under  which  he  has  been  found  a 
lunatic.  In  like  manner,  if  the  defendant  be  made  a  peer  of  the  realm, (cc) 
or  member  of  the  house  of  commons,(c^cZ)  or  become  haiikruiJt  and  obtain 
his  certificate,(ee)  or  be  discharged  under  an  insolvent  debtors'  SLCt,{ff) 
&c.,  at  any  time  before  the  bail  are  fixed,  they  are  in  consequence  dis- 
charo-ed :  And,  in  any  of  the  above  cases,  the  courts,  on  motion,  will  order 
an  exoneretur  to  be  entered  on  the  bail-piece,  or  in  the  filacer's  book. 

When  the  defendant  has  become  bankrupt  and  obtained  his  certificate, 
before  the  expiration  of  the  time  allowed  to  the  bail,  by  the  indulgence  of 
the  court,  for  surrendering  him,  that  is,  (when  the  plaintifi"  proceeds  by  scire 
facias,)  before  the  rising  of  the  court  on  the  return  day  of  the  second  scire 
facias,{g)  or  of  the  first,  when  scire  feci  is  returned,  by  MUin  the  King's 
Bench  ;(/i)  or  by  original  in  that  court,  as  well  as  in  the  Common  Pleas, 
before  the  rising  of  the  court  on  the  appearance  day,  or  quarto  die  ijost  of 
the  return  of  the  second  scire  facias,  or  of  the  first,  when  scire  feci  is  re- 
turned :{li)  or,  when  the  plaintiff  proceeds  by  action  of  debt  on  the  recogni- 
zance in  the  King's  Bench,  within  the  space  of  eight  entire  days  in  full  term 
next  after  the  return  of  the  latitat  or  other  process  against  the  bail, (2)  or,  in 
the  Common  Pleas,  before  the  rising  of  the  court  on  the  quarto  die  post  of 
the  return  of  the  process  ;(/{;)  the  court  on  motion,  supported  by  an  affidavit 
of  the  facts,  will  order  an  exoneretur  to  be  entered  on  the  bail-piece  by  bill, 
or  in  the  filacer's  book  by  original.ij)  And,  in  the  Exchequer,  proceed- 
in  o-s  were  stayed  in  an  action  against  bail,  and  an  exoneretur  ordered  to  be 
entered  on  the  bail-piece,  after  the  defendant  had  obtained  his  certificate,  on 
payment  of  the  costs  of  the  action,  and  of  the  application  ;  although  the  re- 
coo-nizance  had  been  entered  into  for  his  discharge  out  of  custody,  after  final 
judo-ment,  and  the  certificate  had  not  been  allowed  by  the  chancellor,  till 
after  the  expiration  of  the  time  stipulated  for  making  the  render. (???)    But 

the  court  of  Common  Pleas  would  not  relieve  the  bail  of  a  bank- 
[  *291  ]  rupt,  who  were  fixed  after  the  appearance  day  *or  quarto  die 

jjost  of  the  return  of  the  second  scire  facias,  which  happened  be- 
tween the  signature  of  the  bankrupt's  certificate  by  his  creditors  and  the 
commissioners,  and  the  time  of  its  allowance  by  the  Lord  Chancellor. (aa) 
And,  in  that  court,  where  an  action  was  commenced,  and  the  defendant 
became  bankrupt  and  obtained  his  certificate,  and  afterwards  permitted 
judgment  to  be  signed  for  want  of  a  plea,  after  which  the  plaintiff  pro- 
ceeded against  the  bail,  the  court  of  Common  Pleas  would  not  relieve  the 

(a)  6  Durnf.  &  East,  284.  (b)  Ante,  216. 

(cc)  Doug.  45. 

{dd)  Lanffridje,  one,  c^c.  v.  Flood,  H.  26  Geo.  III.  K.  B.     4  East,  190,  S.  C.  cited. 

(ee)  1  Kea.  504.     1  Bur.  244,  5,  S.  C.     Id.  436.     Cowp.  824. 

(/)  2  Chit.  Rep.  105. 

Iff)  1  Barn.  &  Cres.  247.     2  Dowl.  &  Ryl,  385,  S.  C. 

(/()  Ante,  283.  (0  Ante,  283,  4. 

[k]  Ante,  284. 

(l)  Cleveland  v.  Dickenson  c^  another,  bail  of  Tomkins,  E.  41  Geo.  III.  K.  B.  2  Chit.  Rep. 
104.  14  East,  599.  1  Barn.  &  Aid.  332.  3  Barn,  k  Cres.  222.  5  Dowl.  &  Ryl.  258,  S.  C. 
K.  B.  2  New  Rep.  C.  P.  180,  190.  8  Taunt.  28.  1  Moore,  457,  S.  C.  7  Moore,  5U6.  1 
Bing.  1G4,  S.  C.  C.  P.     M'Clel.  310,  399.     Excheq. 

(77j)  M'Clel.  399.  {aa)  7  Taunt.  589. 


OF  SPECIAL  BAIL,  291 

bail  on  motion. (J)     Anil  it  seems  that  in  such  case,  they  could  in  no  ^yay 
take  advantage  of  the  bankruptcy  and  certificate.(6) 

The  court  of  King's  Bench  would  not  relieve  the  bail,  on  the  ground  that 
the  debt  was  contracted  while  the  defendant  was  resident  in  a  foreign  coun- 
try, and  before  he  became  a  bankrujjt  by  the  laws  of  that  country,  though 
he  might  have  obtained  his  ccrtificale  there. (e)  And  where  the  defendant 
became  bankrupt,  before  the  statute  49  Geo.  III.  c.  121,  §  14,  and  the  plain- 
tift'  proved  his  debt  under  the  commission,  but  did  not  otherwise  proceed 
under  it,  the  court  held  that  the  bail  were  liable;  though  the  plainiifT  had 
lain  by  two  years  before  he  brought  his  scire  facias  against  them. (J)  But 
now,  since  the  making  of  the  above  statute,  if  a  [)laintiff,  after  judgment 
obtained,  prove  his  debt  under  a  commission  of  bankrupt  sued  out  iigainst 
the  defendant,  and  also  proceed  against  the  bail,  the  latter  are  thereby  enti- 
tled to  their  discharge ;  and  the  court  on  motion  will  order  an  exoneretur 
to  be  entered  on  the  bail-piece. (c)  Bail  to  the  sheriff  however,  we  have 
seen,(/)  woi-e  not  considered  as  sureties,  or  liable  for  the  debt  of  a  bank- 
rupt, within  the  meaning  of  the  statute  40  Geo.  III.  c.  121,  §  8.  And 
therefore,  where  such  bail,  being  fixed  with  the  debt  and  having  paid  it, 
sued  the  principal  and  obtained  judgment,  after  a  commission  of  bank- 
rupt had  issued  against  him,  but  before  he  had  obtained  his  certificate,  and 
after  he  had  obtained  it  the  bail  in  the  second  action  applied  to  be  exone- 
rated, on  the  ground  that  the  plaintiffs,  the  bail  in  the  original  action,  might 
prove  their  debt  under  the  commission,  by  virtue  of  the  last  mentioned  sta- 
tute, the  court  of  Common  Pleas  refused  to  interfere  in  a  summary  way,  but 
left  the  bail  to  their  writ  of  audita  querela  ;{g)  upon  which  the  bail  rendered 
the  defendant,  and  the  court,  on  a  subsequent  application,  refused  to  dis- 
charge him.(/i)  But  this  case  is  now  provided  for;  and  the  bail  to  the 
sheriff,  having  paid  the  debt,  or  part  of  it  in  discharge  of  the  whole,  are 
entitled  to  relief  under  the  commission,  by  the  statute  G  Geo.  IV.  c.  16, 
§52.        _ 

The  bail  cannot  plead  the  bankruptcy  and  certificate  of  their  principal,  in 
their  own  discharge ;  but  must  apply  to  the  court  on  that  ground, 
to  *be  relieved  on  motion. (a)  And  formerly,  if  the  defendant  had  [  *292  ] 
become  bankrupt,  and  obtained  his  certificate,  before  the  bail  were 
fixed,  the  method  was,  for  the  bail  to  surrender  him ;  and  then  for  the  de- 
fendant to  apply  to  be  discharged,  upon  an  affidavit,  stating  his  having  be- 
come bankrupt  since  the  cause  of  action  arose,  and  obtained  a  certificate  of 
his  conformity  under  the  commission.  (i^>)  But  of  late,  when  a  bankrupt  is 
clearly  entitled  to  his  discharge,  the  court  on  motion,  or  a  judge  on  sum- 
mons, to  avoid  circuity,  have  ordered  an  exoneretur  to  be  entered  on  the 
bail-piece,  or  in  the  filacer's  book,  without  the  form  of  a  regular  surrender 
by  his  bail.(cc')  And  the  court  of  King's  Bench  will  relieve  the  bail  on  mo- 
tion, without  directing  an  issue  to  try  the  fact  of  the  bankrupt's  being  a 

[b]  3  Taunt.  46  ;  and  see  4  Dowl.  &  Ryl.  373,  accord;  but  see  3  Harn.  k  Cres.  222.  5  Dowl 
&  Ryl.  258,  S.  C.semb.  contra. 

(f)  8  Durnf.  &  East, 609  j  and  see  3  Moore,  244.  5  Moore,  331;  but  ii</c  ante,  211,  and  the 
cases  there  cited. 

(rf)  IIill  V.  Simpson,  bail  of  Jackson,  H.  26  Geo.  III.  K.  B. ;  but  see  2  Blac.  Rep.  1317. 

(e)  2  Taunt.  246;  and  see  stat.  6  Geo.  IV.  c.  16,  g  59.     Ante,  202,  3.  (/)  Ante,  208. 

(ff)  6  Taunt.  329.     2  Marsh.  37,  S.  C.  (A)  6  Taunt.  330.     2  Marsh.  192,  S.  C. 

(«)  1  Bos.  &  Pul.  448,  450,  (h).     2  Bos.  &  Pul.  45.  (hb)  Cowp.  824. 

(cf)  Id.  ibid.  Barnes,  104.  1  Bos.  &  Pul.  450,  (/■),j'(rIjullcr,J.;  and  see  tlie  cases  referrtd 
to,  ante,  290,  (1). 

Vol.  I.— 19 


292 


OF  SPECIAL  BAIL. 


trader-  the  certificate,  by  the  statute  G  Geo.  IV.  c.  16,(tZ)  being  made  suffi- 
cient evidence  of  the  trading,  kc.{ee)  But  the  court  of  Common  Pleas  would 
not  exonerate  the  bail,  upon  the  defendant's  having  become  bankrupt  and 
obtained  his  certificate,  without  giving  the  plaintifi"  an  opportunity  of  trying, 
by  an  issue,  whether  the  certificate  were  fairly  obtained. (^')  If  the  bail 
do  not  apply  to  enter  an  exoneretur  on  the  bail-piece,  till  after  proceed- 
ings have  been  had  against  them,  they  can  only  be  relieved  on  payment 
of  costs. ((/</) 

Where  the  defendant  was  under  sentence  of  transportation  for  a  felony, 
the  court  permitted  an  exoneretur  to  be  entered  on  the  bail-piece.(7iA)  So, 
where  the  defendant  being  a  seaman,  and  having  been  holden  to  bail  on 
mesne  process,  for  a  debt  under  20Z.,  was  impressed  into  the  king's  service, 
the  court,  on  application  of  the  bail,  ordered  an  exoneretur  to  be  entered. (i) 
So,  whilst  the  alien  act(k)  remained  in  force,  if  a  defendant  had  been  sent 
out  of  the  kingdom  under  that  act,  the  court  of  King's  Bench  would  have 
ordered  the  bail  bond  to  be  delivered  up  to  be  cancelled,(Z)  or  permitted 
the  bail  above  to  enter  an  exoneretur ;  unless  they  were  indemnified,  or 
had  money  in  their  hands  belonging  to  the  defendant,  sufficient  to  answer 
the  plaintiff's  demand.(wi)  But  where  the  defendant  was  in  custody  under 
a  charge  of  murder  committed  in  Ireland^  where  a  bill  was  found  by  the 
grand  jury  against  him,  and  application  had  been  made  to  the  secretary  of 
state,  to  send  him  over  there  in  order  to  take  his  trial ;  the  court  of  King's 
Bench,  though  they  granted  a  habeas  corpus  to  bring  him  up,  in  order  that 

he  might  be  surrendered  by  his  bail,(w)  would  not,  without  an 
[  *29o  ]  actual  surrender,  allow  an  exo?ieretur  to  be  entered  on  the  *bail- 

piece.(a)  So,  where  the  defendant  was  in  custody  of  a  messenger 
under  an  order  of  the  secretary  of  state,  for  the  purpose  of  being  sent  out 
of  the  kingdom  by  virtue  of  the  alien  act,{b)  the  court  of  King's  Bench 
refused  to  issue  a  habeas  corpus,  on  the  application  of  his  bail,  to  bring 
him  up,  that  they  might  render  him  in  their  own  discharge,  on  account  of 
the  public  inconvenience,  and  of  the  probable  risk  of  his  passage,  which 
had  been  taken  in  a  ship  immediately  about  to  sail  to  his  destined  port : 
and  they  also  refused,  while  he  was  still  in  the  kingdom,  and  might  pos- 
sibly be  set  at  large  again,  to  enter  an  exoneretur  on  the  bail-piece ;  but 
they  said  that  they  would  remember  that  the  situation  of  the  bail  was 
without  any  fault  of  theirs,  if  any  proceedings  were  taken  against  them  in 
the  meantime. (c) 

The  general  rule  by  which  the  courts  are  governed,  in  the  exercise  of 
an  equitable  interference  in  these  cases,  is  said  to  be  this :  that  wherever 
by  the  act  of  the  law,  a  total  impossibility  or  temporary  impracticability 
to  render  a  defendant  has  been  occasioned,  the  courts  will  relieve  the  bail 
from  the  unforeseen  consequences  of  having  become  bound  for  a  party 

(d)  ?j  126 ;  and  see  stat.  5  Geo.  II.  c  30,  ?  7,  13.     Ante,  212. 

\ee)  1  Barn.  &  Aid.  332.  Willison  v.  Smith,  E.  22  Geo.  III.  K.  B.  upon  the  authority  of 
another  case,  which  had  been  determined  on  the  construction  of  the  statute  5  Geo.  II.  c.  30, 
2  7,  13,  after  great  argument,  corilra.  see  Ed.  B.  L.  415. 

(ff)  6  Taunt.  75;  and  see  5  Moore,  331. 

(^^)  2  Chit.  Rep.  104.  14  East,  599.  1  Barn.  &  Aid.  332.  8  Taunt.  28.  I  Moore,  457, 
S.  C.     Ante,2?>i. 

(hh)  6  Durnf.  &  East,  247.  («)  7  East,  405 ;  and  see  1  Bur.  339. 

{k)  33  Geo.  III.  c.  4.     Ante,  215,  16.  {I)  7  Durnf.  &  East,  517. 

(m)  6  Durnf.  &East,  50,  52,  246.  (n)  Ante,  287. 

{a)  7  Durnf.  &  East,  226.     15  East,  78.  {b)  43  Geo.  III.  c.  155. 

(c)  13  East,  457.     Ante,  287. 


OF  SPECIAL  BAIL.  293 

whose  condition  has  boon  so  changed,  by  operation  of  law,  as  to  put  it  out 
of  their  power  to  perform  the  alternative  of  their  oblifiration,  without  any 
default,  laches,  or  possible  collusion  on  their  part.((/)  The  practical  modes 
of  relief  which  the  courts  have  adopted  for  that  purpose,  arc  those  three : 
first,  in  cases  of  total  impossibility,  it  is  effected  by  ordering  an  exonerctur 
to  be  entered  upon  the  bail-piece,  on  motion  for  that  purpose ;  or,  in  the 
case  of  bail  below,  that  the  bail  bond  be  delivered  up  to  be  cancelled  :[e) 
That  mode  is  consistent  with  the  jurisdiction  of  all  the  three  courts.  A 
second  mode,  (which  is  necessarily  confined  to  the  court  of  King's 
Bench, )(/)  has  been,  in  cases  of  temporary  impracticability  arising  from 
the  defendant  being,  at  the  time  when  he  should  be  rendered,  in  legal 
criminal  custody,  by  ordering  him  to  be  brought  up  by  habeas  corpus,  in 
order  that  he  may  be  formally  rendered  in  discharge  of  his  bail.  A  third 
mode  is,  by  the  courts  enlarging  the  time  for  making  the  render :  This 
also  is  within  the  power,  and  may  be  resorted  to  by  all  the  courts. (^) 
And  the  short  result  of  all  the  determinations  seems  to  be,  that  wherever 
the  court  cannot  absolutely  exonerate  the  bail,  and,  cither  from  the  con- 
stitution of  the  court  itself  or  the  circumstances  of  the  particular  case,, 
cannot  enable  them  at  once  to  make  a  formal  render,  they  will,  in  all  prac- 
ticable cases  of  a  temporary  impossibility  occasioned  by  act  of  law,  and 
even  perhaps  in  other  cases  under  special  circumstances,  enlarge  the  time 
for  making  the  render,  in  order  to  give  the  bail  an  opportunity  of 
rendering  their  principal,  as  soon  as  it  shall  be  in  their  power  to  do  so.(7t) 
It  remains  to  be  considered,  in  what  cases  the  bail  are  excused  from  the 
performance  of  the  condition  of  their  recognizance,  by  the  act  or 
default  of  *the  i^laintiff.  If  the  plaintiff  do  not  declare  against  [  *294  ] 
the  defendant  in  due  time,  so  that  the  cause  is  out  of  court,(a)  his 
bail  are  discharged.  And  it  seems,  that  where  there  has  been  a  great  and 
unnecessary  delay  in  proceeding  to  trial,  the  bail  may  be  relieved,  on  their 
own  application;  though  the  court  will  not  discharge  them,  at  the  instance 
of  the  defendant. (?>)  So,  where  the  plaintiff  declares  by  original,  in  the 
King's  Bench,  in  a  different  county  from  that  where  the  action  is  brought, 
his  bail  are  discharged  :[c)  But  in  the  King's  Bench  by  hill,  or  in  the  Com- 
mon rieas,((:ZcZ)  the  declaring  in  a  different  county  from  that  in  which  the  writ 
issued,  is  not  deemed  a  Avaiver  of  bail.  So,  the  bail  are  discharged,  if  the 
plaintiff  declare  against  the  defendant  for  a  different  cause  of  action  from 
what  is  expressed  in  the  process. (ec)  But,  in  the  Common  Pleas,  a  variance 
between  the  writ  and  count,  (the  ac  etiam  being  in  case  on  j^i'omiseSy 
but  the.  declaration  in  debt,)  is  not  a  ground  for  entering  an  cvoneretur 
on  the  bail-piece,  where  the  sum  sworn  to  is  under  4:0l.{ff)  The  affidavit 
to  hold  to  bail  must  also  correspond  in  substance  with  the  process  :(////)  and 
therefore,  if  the  plaintiff  declare  against  the  defendant  by  a  different  name,. 
1  Moore  &  P.  24,  or,  for  a  different  cause  of  action  from  what  is  expressed 

(d)  13  Price,  525,  in  notU. 

(e)  7  Duriif.  &  East,  517.  (/)  Ante,  287. 

\g)  13  Price,  525,  in  notia.  (A)  Id.  532,  3,  in  nntis. 

(a)  2  New  Rep.  G.  P.  404.  (6)  1  Chit.  liep.  2S1. 

(c)  3  Lev.  235.     R.  E.  2  Geo.  II.  (a),  K.  B.     Barnes,  116. 

\dd)  R.  H.  22  Geo.  III.  C.  P. 

\ec)  Per  Cur.  M.  43  Geo.  III.  K.  B.  3  Wils.  61.  2  H.  Bloc.  278.  2  Bos.  &  Pul.  358.  5 
Moore,  483  ;  and  see  2  East,  305  ;  but  see  2  Moore,  301.  8  Tuunt.  304,  S.  C.  1  Moore,  362. 
1  Bing.  G8,  S.  C.     8  Moore,  33.     1  Bing.  206,  S.  C. 

(f)  1  H.  Blac.  310.    Ante,  150.  (ffj)  1  Chit.  Rep.  669,  (a). 


294 


OF  SPECIAL  BAIL. 


in  the  aflTuiavit,  his  bail  are  discharged  :{hh)  But  a  trifling  variance  in  the 
names  of  the  parties  is  not  material,  provided  there  be  no  doubt  as  to  their 
identity. (i)  And  it  is  too  late  to  move  to  enter  an  exoneretur  on  the  bail- 
piece,  on  the  ground  of  a  variance  between  the  declaration  and  affidavit  to 
hold  to  bail,  after  bail  put  in  and  justified,  declaration  delivered,  plea  de- 
manded, and  time  allowed  for  pleading.  (Z:)  In  the  Common  Pleas,  bail  are 
not  liable,  where  the  declaration  consists  of  several  counts,  unless  the  plain- 
tiff recover  for  the  cause  of  action  specified  in  the  affidavit.(?)  And,  in  that 
court,  where  the  affidavit  was  for  a  certain  sum,  on  a  bill  of  exchange  only, 
and  the  plaintiff  recovered  a  greater  sum,  as  well  on  the  bill  as  for  goods 
sold,  the  bail  were  holden  to  be  liable  only  for  so  much  as  was  recovered  on 
the  bill  of  exchange. (m)  And  it  seems,  that  if  the  sum  recovered  be  under 
a  bailable  amount,  the  bail  are  discharged. (?«)  But  where  the  plaintiff,  hav- 
in<T  filed  a  bill  in  equity,  and  arrested  the  defendant  for  the  same  cause  of 
action,  had,  in  consequence  of  an  order  out  of  Chancery,  for  that 
[  *295  ]  purpose  elected  to  proceed  in  equity,  the  court  refused  *to  dis- 
charge the  bail,  but  left  them  to  move  to  set  aside  any  proceed- 
inf^s  which  might  be  taken  against  them. (a) 

It  was  formerly  holden,  that  a  cognovit  by  the  principal,  without  notice 
to  the  bail,  did  not  discharge  them:  (5)  And  accordingly,  where  the  defend- 
ant in  the  action  gave  a  cognovit  for  the  debt  and  costs,  payable  by  seven 
instalments,  and  afterwards  the  principal  was  discharged  under  an  insolvent 
debtor's  act,  which  related  to  a  certain  day,  when  three  only  of  the  instal- 
ments were  payable :  it  was  holden  that  the  bail  who  had  been  fixed  before 
the  passing  of  the  act,  though  after  the  day  to  which  it  related,  were  liable 
for  the  whole  condemnation  money,  the  entire  debt,  quel  debt,  being  due 
instanter  ;  with  a  stay  of  execution  only  for  certain  portions,  at  certain 
times.(c)  But  where  the  plaintiff  had  taken  a  cognovit  from  the  defendant, 
•with  an  agreement  to  receive  the  debt  by  instalments,  of  which  no  notice 
was  given  to  the  bail,  the  court  of  King's  Bench  set  aside  an  execution 
against  them,  sued  out  above  a  year  after  the  judgment,  without  a  scire 
facias  to  revive  it  '.{d)  And  in  general,  although  the  bail  are  not  discharged 
by  the  plaintiff's  taking  a  cognovit  from  the  principal  without  their  con- 
sent, where  judgment  is  to  be  entered  up  thereon  instanter^{e)  or  the  debt 
is  payable  by  instalments,  within  the  time  in  which  the  plaintiff  would  have 
been  entitled  to  judgment  and  execution,  had  he  gone  to  trial  in  the  original 
cause ;(/)  yet  where  that  is  not  the  case,  as  where  one  or  more  of  the  instal- 
ments are  not  payable  till  after  the  expiration  of  that  time,  it  is  now  settled, 
in  both  courts,  that  the  bail  are  discharged. (<;)  This  doctrine  was  first  intro- 
duced in  courts  of  equity ;  and  is  founded  on  this  principle,  that  every 
surety  has  a  right  to  come  into  a  court  of  equity,  and  require  to  be  per- 
mitted to  sue  in  the  name  of  the  original  creditor :  But  if  the  creditor 

{hh)  6  Durnf.  k  East,  363.  T  Durnf.  &  East,  80.  8  Durnf.  &  East,  27.  1  Chit.  Rep.  659. 
2  Taunt.  107.     5  Moore,  209.     3  Barn.  &  Cres.  1.     4  Dowl.  &  Ryl.  619,  S.  C. 

(i)  1  Chit.  Rep.  659,  (a).  [k)  3  Moore,  305.     1  Brod.  &  Bing.  48,  S.  C. 

\l)  2  Taunt.  107  ;  and  see  4  DowL  &  Ryl.  245.  (w)  7  Taunt.  304.     1  Moore,  51,  S.  0. 

(n)  Per  Lord  Kenyan,  in  Lavender  v.  lulner,  at  Lancaster,  May,  1797 ;  but  see  4  Dowl.  & 
Ryl.  194. 

(a)  7  Taunt.  235.     2  Marsh.  548,  S.  C.  (6)  5  Durnf.  &  East,  277. 

(c)  8  East,  433.  {d)  15  East,  617. 

\e)  1  Taunt.  161.  (  f)  5  Taunt.  319.     1  Marsh.  59,  S.  C. 

{g)  15  East,  617.  4  Taunt.  456.  5  Taunt.  319.  1  Marsh.  59,  S.  C.  2  Marsh.  83,  S.  P. 
7  Taunt.  53.  2  Marsh.  383,  S.  C. ;  and  see  2  Blac.  Rep.  1317.  1  Taunt.  159.  5  Barn.  & 
Cres.  269.     8  Dowl.  &  Ryl.  22,  S.  G. 


OF  PROCEEDINGS  UPON  THE  BAIL  BOND.  295 

give  time  to  the  original  debtor,  he  thereby  prevents  the  surety  from 
using  his  name  with  effect. (c///)  In  like  manner,  the  courts  of  la\Y  have 
hehl,  that  the  bail  are  entitled  to  surrender  the  prineipal  at  any  time, 
whenever  the  plaintift'  himself  would  not  be  precluded  from  taking  a  pro- 
ceeding against  him:  But  if  the  creditor  give  time  to  the  principal,  he 
cannot  during  that  time  take  or  proceed  against  him;  neither  during  the 
same  period  can  the  bail,  who  are  therefore  discharged:! A)  And  this  doc- 
trine applies  to  bail  to  the  sheriff,  as  Avell  as  bail  above. (/)  It  is  no 
ground  however,  for  setting  aside  a  judgment,  wiiich  has  been  signed 
against  bail,  that  the  plaintiff  has  accepted  a  composition  from  the  defend- 
ant, and  suspended  the  execution  of  a  capias  ad  satisfaciendum  which 
had  been  issued  against  him,  though  it  were  without  the  know- 
ledge or  consent  of  the  bail;  *as  they  are  not  prevented  thereby  [  *29G  ] 
from  surrendering  their  principal. (aa)  So,  where  a  plaintiff  re- 
ceives bills  of  exchange  from  a  defendant,  with  an  agreement  that  he 
shall  not  be  precluded  from  proceeding  while  the  bills  are  running,  the 
bail  are  not  thereby  discharged. (6)  It  is  not  any  defence  at  law,  to  an 
action  on  a  bond  against  a  surety,  that  by  a  parol  agreement,  time  has  been 
given  to  the  principal  :(c)  And  the  sureties  in  a  replevin  bond  are  not  dis- 
charged, by  time  being  given  to  the  plaintiff  in  replcvin.[d) 


♦CHAPTER    XIII.  [*297] 

Of  Proceedings  against  Bail  to  the  Sheriff,  upon  the  Bail  Bond  ; 
and  against  the  Sheriff,  to  compel  him  to  return  the  Writ,  and 
bring  in  the  Body. 

If  bail  above,  when  necessary,  be  not  put  in  and  perfected  in  due  time, 
the  bail  bond  is  forfeited:  and  the  plaintiff' may  either  take  an  assig)nnent 
of  it, (a)  and  proceed  thereon  against  the  defendant,  and  his  bail  to  the 
sheriff;  or  he  may  proceed  against  the  sheriff  himself,  to  compel  him  to 
return  the  writ,  and  bring  in  the  body  of  the  defendant. (5i) 

If  the  bail  below  be  sufficient,  it  is  usual  for  the  plaintiff  to  take  an  assign- 
ment of  the  bail  bond;  which  it  seems  he  may  do,  even  after  service  of  the 
rule  to  bring  in  the  body,(c?t')  or  moving  for  an  attachment ;  but  after  he  has 
sued  out  an  attachment  against  the  sheriff,  he  has  made  his  election,  and 

(gg)  6  Dow,  238.     Moore  &  P.  393,  S.  C. 

(A)  Holt,  Ni.  Pri.  84.  7  Taunt.  126;  and  see  2  Bos.  &  Pul.  61.  1  Taunt.  159.  15  E.ast, 
617.  8  Taunt.  28.  1  Moore,  457,  S.  C.  7  Moore,  566.  1  Bing.  164,  S.  C.  5  B.irn.  &  Ores. 
269.     8  Dowl.  &  Ryl.  22,  S.  C.     18Ve3.20.     3  Price,  216,  17.     1  Madd.  Chan.  234,  5. 

(i)  4  Barn.  &  Aid.  91.  {aa)  5  Taunt.  614.     1  Marsh.  250,  S.  C. 

(h)  7  Taunt.  126.  And  see  further,  as  to  when,  and  in  what  cases,  bail  to  the  action  are 
discharged,  Petcrsd.  Part  I.  Chap.  XIV. 

(c)  5  Barn.  &  Aid.  187.     2  Chit.  Rep.  336,  S.  C. 

(rf)  6  Taunt.  379.  2  Marsh.  81,  S.  C.  3  Price,  214,  S.  C.  in  Error:  and  sec  7  Taunt.  97. 
2  Marsh.  392,  S.  C.     7  Price,  223,  S.  C.  in  Error. 

(a)  Append.  Chap.  XIII.  §  1. 

(66)  Gilb.  C.  P.  20;  and  see  2  Wms.  Saund.  5  Ed.  60,  a.b.  r.  61,  a.  b.  kc. 

(cc)  Robinson,  asitif/ner,  i^'c.  v.  Owen,  bail  o(  Dunkin,  M.  36  Geo.  III.  Poidcvin  v.  Ilarvey, 
bail  of  Martclli,  M.  51  Geo.  III.  K.  B.  7  Barn.  &  Ores.  478.  1  Man.  &  Ryl.  298.  S.  C.  3 
Bos.  &  Pul.  5G4,  C.  P.     Wightw.  40G.     Man.  Ex.  Pr.  121.  Eicheq. 


207 


OF  PROCEEDINGS 


cannot  afterw.arcls,  whilst  the  attachment  remains  in  force,  take  an  assign- 
ment of  the  bail  bond  :{dd)  And,  in  the  Common  Pleas,  if  bail  above  be 
put  in  and  justified  in  due  time  after  the  sheriff  is  ruled  to  bring  in  the 
body,  the  court  will  set  aside  the  proceedings  in  an  action  upon  the  bail 
bond,  commenced  previous  to  the  time  of  justification  :(e)  So  that  the  plain- 
tiff, in  that  court,  is  not  at  liberty  to  proceed  on  the  bail  bond,  pending 
the  rule  to   bring  in  the  body.     Jjut  where  the  sheriff's   ofiicer,   on  the 
attachment  being  lodged,  prevailed  on  the  plaintiffs  to  withdraw  it,  and 
take  an   assignment  of  the   bail  bond,  which   the   plaintiffs,  in  order  to 
relieve  the  sheriff,  accordingly  took,  and  commienced  an  action  thereon, 
the  court  of  King's  Bench  held,  that  the  plaintiffs  might  abandon  their 
attachment  in  this  case,  and  then  take  an  assignment,  and  proceed  on  the 
bail  bond.(/)     And,  in  the  Exchequer,  where  the  attachment  against  the 
sheriff  has  been  set  aside  for  irregularity,  it  is  no  bar  to  an  assignment  of 
the  bail  bond.(^) 
Before  the  statute  for  the  amendment  of  the  law,(7i)  the  sheriff  was  not 
compellable  to  assign  the  bail  bond;(z)  though  if  he  had  not  as- 
[  *298  ]   signed  it,  the  *court  would  have  amerced  him  :{a)  and  the  old  way 
was,  first  to  give  a  rule  for  the  sheriff  to  bring  in  the  body,  before 
the  plaintiff  could  take  an  assignment  of  the  bail  bond.  (5)     Another  mis- 
chief at  common  law  was,  that  after  an  assignment  of  the  bail  bond,  the 
action  thereupon  must  have  been  brought  in  the  name  of  the  sheriff,  who 
might  have  released  it,  and  thereby  driven  the  plaintiff  into  a  court  of 
equity.(c)     To  remedy  these  inconveniences,  it  was  enacted  by  the  above 
statute,  that  "if  any  person  or  persons  shall  be  arrested,  by  any  writ,  bill 
or  process,  issuing  out  of  any  of  the  courts  of  record  at  Westminster,  at 
the  suit  of  any  common  person,  and  the  sheriff  or  other  officer  take  bail 
from  such  person,  against  whom  such  writ,  bill  or  process  is  taken  out, 
the  sheriff  or  other  officer,  at  the  request  and  costs  of  the  plaintiff  in  such 
action  or  suit,  or  his  lawful  attorney,  shall  assign  to  the  plaintiff  in  such 
action,  the  bail  bond  or  other  security  taken  from  such  bail,  by  indorsing 
the  same,  and  attesting  it  under  his  hand  and  seal,  in  the  joresence  of  two 
or  more  credible  witnesses,  which  may  be  done  without  any  stamp :  and 
if  the  said  bail  bond  or  assignment,  or  other  security  taken  for  bail,  be 
forfeited,  the  plaintiff  in  such  action,  after  such  assignment  made,  may 
bring  an  action  and  suit  thereupon  in  his  own  name  ;  and  the  court  where 
the  action  is  brought  may,  by  rule  or  rules  of  the  same  court,  give  such 
relief  to  the  plaintiff  and  defendant  in  the  original  action,  and  to  the  bail, 
upon  the  said  bond  or  other  security  taken  from  such  bail,  as  is  agreeable 
to  justice  and  reason  ;  and  that  such  rule  or  rules  of  the  said  court  shall 
have  the  nature  and  effect  of  a  defeazance  to  such  bail  bond,  or  other 
security  for  bail."     This  act,  and  all  the  statutes  of  jeofails,  are  extended 
by  the  24th  section,  to  all  courts  of  record  in  the  counties  palatine  of 
Lancaster,  Chester,  and  Durham,  and  the  principality  of  Wales,  and  to 
all  other  courts  of  record  within  this  kingdom. ((i)    And,  by  the  statute  6 

(dd)  Cunningham  v.  Chambers,  E.  45  Geo.  III.  K.  B. ;  and  see  1  Chit.  Rep.  394,  in  notia. 

{e)  3  Bos.  &  Pul.  564 ;  and  see  7  Moore,  GOO.     1  Bing.  181,  S.  C. 

(/)  15  East,  215.  [g)  Wightv^.  406. 

(A)  4  &  5  Ann,  c.  16,  §  20.  {i)  1  Mod.  228. 

(«)  1  Sid.  23.  2  Mod.  84.  [h]  1  Salk.  99.  (c)  Gilb.  C.  P.  2. 

{d)  And  see  tlie  statute  22  Geo.  II.  c.  4G,  §  35,  for  the  assignment  of  bail  bonds,  on  pro- 
cess issuing  out  of  the  court  of  Session  of  Chester,  and  the  court  of  Common  Pleas  at  Lan- 
caster, and  the  proceedings  thereon. 


LPON  THE  BAIL  DOND.  298 

Geo.  IV.  c.  108,  §  00,  where  persons  arrested  by  capias,  at  the  king's 
suit,  give  bail,  the  sheriflf  is  required  to  assign  the  bail  bond  to  the  king, 
at  the  request  of  the  prosecutor. 

The  bail  bond,  it  is  said,  may  bo  assigned  before  it  is  forfeited,  though 
it  cannot  be  ])Ut  in  suit  till  afterwards, (t')[A]  And,  in  the  King's  Bench,  if 
the  bail  do  not  justify  in  four  da^'s  after  exception,  the  plaintiff  is  at 
liberty  to  proceed  upon  the  bail  bond ;  although  from  the  bail  having  been 
put  in  sooner  than  was  necessary,  the  rule  for  bringing  in  the  bo<ly  has 
not  expired,  and  the  sheriff  is  not  liable  to  an  attachment :(/)  And,  in 
that  court,  it  has  been  holden,  that  [^  the  fourth  day  for  perfecting  bail  be 
the  last  day  of  term,  and  the  bail  be  not  perfected  before  the  rising  of  the 
court  on  that  day,  an  assignment  of  the  bail  bond  to  the  plaintiff,  in  the 
evening  of  that  day,  is  regular.(,^)  In  the  Common  Pleas  it  is 
a  rule,  that  *"no  bail  bond  taken  in  London  or  Middlesex,  by  [  *299  ] 
virtue  of  any  process  issuing  out  of  that  court,  returnable  on  the 
first  return  of  any  term,  shall  be  put  in  suit  until  after  the  fifth  day  in 
full  term  ;  and  that  no  bail  bond  taken  in  any  other  city  or  county,  by 
virtue  of  such  process,  shall  be  put  in  suit  until  after  the  ninth  day  in  full 
term :  and  that  no  bail  bond  taken  in  London  or  Middlesex,  by  virtue  of 
any  process  issuing  out  of  that  court,  returnable  on  the  second  or  any 
other  subsequent  return,  shall  be  put  in  suit  until  after  the  end  o^  four 
days  exclusive  of  the  day  on  which  such  process  shall  be  expressed  to  be 
returnable;  and  that  no  bail  bond  taken  in  any  other  city  or  county,  by 
virtue  of  such  last-mentioned  process,  shall  be  put  in  suit  until  after  the 
end  of  eiglit  days  exclusive  of  the  day  on  which  such  last-mentioned  pro- 
cess shall  be  expressed  to  be  returnable  ;  upon  pain  of  having  all  proceed- 
ings upon  such  bail  bonds  to  the  contrary,  set  aside  with  costs. "(«)  After 
default  made  in  putting  in  special  bail  in  time,  it  is  not  enough  that  bail  are 
afterwards  put  in :  but  the  plaintiff  may  take  an  assignment  of  the  bail 
bond,  and  proceed  thereon,  unless  the  bail  be  also  justified,  though  not 
before  excepted  to.(i)  And  where  the  defendant  had  neglected  to  put  in 
and  perfect  bail  above,  the  court  of  King's  Bench  held  that  the  plaintiff 
was  not  out  of  court,  by  omitting  to  declare  in  the  original  action,  within 
two  terms  after  the  return  of  the  writ ;  but  he  might  still  take  an  assign- 
ment of  the  bail  bond:(6')  for  he  was  not  bound  to  declare  de  bene  esse, 
within  the  time  limited  for  the  defendant's  appearance,  and  after  that 
time  he  could  not  declare,  until  the  defendant  had  actually  appeared. 
But  where  the  plaintiff  is  completely  out  of  court,  by  not  declaring  in  the 
original  action  within  a  year  after  the  return  of  the  writ,  or,  in  the  Com- 
mon Pleas,  before  the  end  of  the  vacation  of  the  second  term  after  it  is 
returnable,  it  seems  that  he  cannot  afterwards  regularly  take  an  assign- 
ment of  the  bail  bond  :{d)  And  in  the  latter  court,  though  the  assignment 

(c)  Barnes,  77. 

(/)  4  Barn,  k  Cres.  8G4.  7  Dowl.  &  Ryl.  374,  S.  C.  {g)  8  Durnf.  k  East,  4. 

{a)  R.  T.  .{0  Geo.  III.  C.  P.  1  II.  Blac.  525,  6  ;  and  sec  a  former  rule  of  H.  <J  Ann,  reg.  4. 
C.  P.  2  Blac.  Rep.  1009.  (b)  7  East,  007. 

(c)  2  Str.  12G2.  Cnrmichael  v.  Chandler,  T.  24  Geo.  III.  K.  B.  Imp.  K.  B.  10  Ed.  149  ;  and 
see  2  East,  442.    Prac.  Reg.  71.    3  Price,  259. 

(rf)  2    Blac.  Rep.  876  ;  and  see  4  Taunt.  715.    5  Taunt.  649. 

[a]  Where  the  plaintiff  takes  an  assignment  of  the  bail  bond  from  the  sheriff,  and  sues 
the  bail  to  insolvency,  thi:*  is  no  discharge  of  the  sheriff's  liability  for  taking  insuflicient 
bail,  nor  an  eslOiipel  of  the  plaiiUitTs  right  of  action  against  him,  Bcnnetl  v.  Brown,  I 
Strobh.  303, 


299  OF  PROCEEDINGS 

of  the  bail  bond  be  regular,  as  being  taken  while  the  action  was  pending, 
yet  if  the  plaintiff  be  afterwards  guilty  of  laches,  to  the  prejudice  of  the 
bail,  the  court  will  stay  the  proceedings  thereon. (f')  The  plaintiff,  how- 
ever, may  proceed  against  the  bail,  although  the  action  be  out  of  court,  if 
it  do  not  appear  that  it  was  out  of  court  before  the  plaintiff  took  an  assign- 
ment of  the  bail  bond.(/)  In  the  Exchequer,  the  court  on  motion  will 
stay  proceedings  against  bail,  on  payment  of  costs,  although  the  plaintiff 
has  neglected  to  proceed  against  them  on  the  bond,  as  early  as  he  might 
have  done,  if  the  bail  had  any  reason  to  think  that  the  plaintiff  did  not 

mean  to  proceed  in  the  action,  such  as  the  bankruptcy  of  the 
[  *300  ]  defendant.     But  when  a  trial  has  been  lost,  the  bail  *bond  will 

be  ordered  to  stand  as  a  security,  if  the  bail  have  not  applied  to 
stay  proceedings  on  the  earliest  opportunity. (««) 

The  assignment  maybe  made  by  the  high  sheriff,  or  by  the  under-sheriff 
in  his  name,  and  even  by  the  under-sheriff's  clerk  in  his  office  :(^5)  And  as 
the  assignment  may  be  made,  so  the  action  may  be  brought,  in  any  county. (cc) 
It  was  formerly  usual  for  the  plaintiff  to  bring  several  actions,  against  the 
principal  and  his  bail,  upon  the  bail  bond  ;  but  this  practice  being  considered 
unnecessary  and  oppressive,  was  discountenanced  by  the  court  of  King's 
Bench  in  a  recent  case,((?tf )  where  the  assignee  of  a  bail  bond  brought  sepa- 
rate actions  thereon,  without  suggesting  any  sufficient  reason  for  so  doing ; 
and  the  court,  under  the  discretionary  power  vested  in  them  by  the  statute 

4  &  5  Ann.  c.  16,  §  20,  stayed  the  proceedings  in  all  the  actions,  upon  pay- 
ment of  the  costs  of  one  of  them.  The  action  upon  the  bail  bond  must 
necessarily  be  brought  in  the  same  court  whence  the  process  issued,  on 
which  the  bond  was  taken  •,{ee)  otherwise  the  parties  could  not  have  the  relief 
intended  by  the  statute.  This  rule  applies,  in  the  King's  Bench,  to  actions 
brought  on  the  bail  bond  by  the  sheriff  himself,  as  well  as  his  assignee  '{ff) 
but  it  is  otherwise  in  the  Common  Pleas,(^)  and  Exchequer,(7i)  where  the 
sheriff  may  sue  on  the  bail  bond  in  a  different  court :  And  although  it  be 
irregular  to  bring  an  action  on  the  bail  bond,  in  a  different  court  from  that 
in  which  the  original  action  was  commenced,  yet  the  defendant  cannot  take 
advantage  of  this,  under  the  plea  of  oion  est  factum.{i)  When  the  plain- 
tiff has  taken  an  assignment  of  the  bail  bond,  he  cannot  proceed  in  the 
original  action,  so  long  as  he  retains  his  right  to  sue  upon  ii.{k) 

The  proceedings  on  the  bail  bond  may  be  set  aside,  with  costs,  if  irregu- 
lar ;  or  staged,  if  regular,  upon  terms,  at  the  instance  of  the  defendant,(?) 

(f)  3  Bos.  &  Pill.  221. 

(/)  4  Taunt.  715.  And  see  furtber,  as  to  the  forfeiture  and  assignment  of  the  bail  bond, 
Petersd.  Part  I.  Chap.  VI.  §  3. 

(aa)  3  Price,  257.  And  see  7  Price,  535.  13  Price,  115,  16.  I  Younge  &  J.  313,  post, 
302,  303,  [1). 

(hb)  Per  Lord  Mansfield,  in  Harris  v.  Ashley,  Sit.  3Iid.  M.  30  Geo.  II.  French  v.  Arnold,  T. 

5  Geo.  III.  1  Str.  60,  (1).  4  Campb.  36  ;  and  see  5  Barn.  &  Aid.  243  ;  but  see  Kitson  ^~  Fagg, 
1  Str.  60.   10  Mod.  288,  S.  C.  contra. 

[cc)  2  Str.  727.    2  Ld.  Rajm.  1455,  S.  C. 

{dd)  2  Barn.  &  Aid.  598.    1  Chit.  Rep.  337,  S.  C. 

(ee)  1  Bur.  642.  2  Ken.  369,  S.  C.  3  Bur.  1923.  Barnes,  92,  117.  3  Wils.  348.  2  Blac.  Rep. 
838,  S.  C. 

(ff)  8  Durnf.  &  East,  152  ;  but  the  action  in  this  case  had  been  removed  from  an  inferior 
court. 

[g]  1  H.  Blac.  631,  {h)  8  Price,  174.  [i)  2  Campb.  396. 

(k)  Eaton  V.  Ueattie,  E.  45  Geo.  III.  K.  B.    2  Smith  R.  489,  S.  C.    4  Taunt.  715.    1  Chit. 
Rep.  394.  in  notis.  9  Price,  407. 
(I)  Barnes,  74. 


UPON  THE  BAIL  BOND.  300 

or  of  the  slierilT  or  his  bail,  in  order  tliat  there  may  he  a  trial  in  the  original 
action.  And  the  rule  for  staying  the  proceedings  may  bo  obtained  on  the 
same  day  that  tlie  bail  justified. (//?)  The  causes  of  irregularity  are  as  vari- 
ous as  tlie  different  proceedings  out  of  which  tlie}'  arise.  In  general,  the 
irregularity  is  in  the  Avrit,  as  that  it  Avas  returnable  on  a  day  out  of  tcrm,(?i) 
&c. ;  or  in  the  affidavit  to  hold  to  bail,  arrest,  bail  bond,  or  exception  to 
bail ;  or  that  the  bond  was  put  in  suit  before  it  was  forfeited. 
*When  a  bail  bond  has  been  improperly  taken,  the  court  will  [  *301  ] 
Order  it  to  be  delivered  up  to  be  cancelled :  And  the  assignment  of 
a  bail  bond  was  set  aside,  as  having  been  made  pending  a  rule  to  set  aside 
proceedings  for  irregularity,  and  to  staff  proceedings  m  the  mean  tune; 
the  proceedings  being  suspended  thereby  for  all  purposes,  till  the  rule  was 
discharged. (rt)  So,  the  proceedings  on  the  bail  bond  were  set  aside  where 
the  assignment  was  taken  after  the  defendant  had  given  a  cognovit,  without 
the  knowledge  of  the  bail,  for  payment  of  the  debt  and  costs. (i)  But  when 
a  defendant  obtains  a  rule  which  stays  the  plaintiff's  proceedings,  he  is  not 
entitled,  after  it  is  discharged,  to  the  same  time  for  the  purpose  of  taking  the 
next  step,  as  he  had  when  he  obtained  the  rule ;  though  the  defendant  in  such 
case  should  have  a  reasonable  time  allowed  him,  for  the  purpose  of  taking  his 
next  proceeding ;  and  it  has  been  determined,  that  the  whole  of  the  day  on 
which  the  rule  is  disposed  of,  is  a  reasonable  time  for  that  purpose. (c) 
Where  the  plaintiff'  took  an  assignment  of  the  bail  bond,  and  afterwards 
gave  notice  of  exception  to  the  bail,  without  entering  it,  the  court  of  King's 
Bench  held  that  the  plaintiff" 's  irregularity,  in  not  entering  an  exception, 
was  not  waived  by  the  defendant's  having  given  tivo  notices  of  justification, 
under  one  of  which  the  bail  had  justified,  and  therefore  held  that  the  pro- 
ceedings should  be  stayed  \[d)  but  they  would  not  order  the  bail  bond  to 
be  delivered  up  to  be  cancelled. (tZ) 

When  the  defendant  has  been  arrested  by  a  wrong  name,  the  courts  will 
order  the  bail  bond  to  be  delivered  up  to  be  cancelled. (c)  But  it  cannot  bo 
cancelled,  in  the  King's  Bench,  on  the  ground  of  the  plaintiff" 's  attorney 
having  neglected  to  take  out  his  certificate  ;(/)  or  because  the  place  where 
the  affidavit  to  hold  to  bail  was  sworn,  is  not  mentioned  in  the  jurat.{<j) 
So,  if  a  non-commissioned  officer  has  been  arrested  and  given  bail,  the  court 
of  Common  Pleas  will  not,  after  judgment  recovered  against  the  bail,  set 
aside  the  proceedings,  and  cancel  the  bail  bond :(//)  And,  in  that  court,  if  the 
plaintiff"  sue  out  writs  into  two  counties,  and  arrest  the  defendant,  avIio  gives 
bail  to  the  sheriff"  in  both,  the  plaintiff  may  regularly  proceed  on  the  first 
bail  bond.(/)  In  the  Exchequer,  when  the  bail  do  not  appear  to  justify  on 
the  day  mentioned  in  the  notice,  but  on  a  subsequent  day  according  to  fur- 
ther notice,  and  the  plaintiff",  on  the  morning  of  the  latter  day,  take  an 
assignment  of  the  bail  bond,  and  sue  out  process  thereon,  the  proceedings 
are  regular,  although  the  rule  for  the  allowance  of  bail  be  served  on  the 

(m)  2  Chit.  Rep.  108.  (n)  1  Str.  399. 

\a)  4  Durnf.  &  East,  176. 
(h)  4  Hiirn.  &  Aid.  91.  Ante,  295.  Posty  305. 

(c)  5  Barn,  k  Cre?.  771 ;  and  see  4  Barn.  &  Cres.  970.    7  Dowl.  &  Ryl.  458,  S.  C. 
(rf)  1  Chit.  Rep.  174. 

(e)  4  Miuile  &  t?el.  3G0.    1  Chit.  Rep.  282.    2  Chit.  Rep.  357.    8  Moore,  526.    1  Ring.  424, 
S.  C.jlhoiijrh  it  was  formerly  otherwise:  3  Durnf.  &  East,  572.    2  Bos.  &  Pul.  109. 
(/•)  1  Dowl.  &  Uyl.  215.    Ante,  11.  (g)  1  Bos.  &  Pul.  105. 

(h)  4  Taunt.  557.  (»)  2  Taunt.  G7  ;  and  see  1  Chit.  Rep.  392. 


501 


OF  PROCEEDINGS 


same  day :  nor  is  it  a  waiver  of  the  assignment,  that  the  plaintiflf  attended 
to  oppose  tlic  justification  of  bail.(/{;) 

*In  the  King's  Bench,  by  a  modern  rule  of  court,(a)  "no  rule 
[  *302  ]  can  be  drawn  up  for  staying  proceedings  regularly  commenced 
on  the  assignment  of  a  bail  bond,  unless  the  application  for  such 
rule,  if  made  on  the  part  of  the  original  defendant,  be  grounded  upon  an 
affidavit  of  merits  ;(J)  or,  if  made  on  the  part  of  the  sheriff  or  bail,(c)  or 
any  officer  of  the  sheriff,(tM)  be  grounded  upon  an  affidavit,  showing  that 
such  application  is  really  and  truly  made  on  the  part  of  the  sheriff  or  bail,  or 
officer  of  the  sheriff,  (as  the  case  may  be,)  at  his  or  their  own  expense,  and 
for  his  or  their  only  indemnity,  and  without  collusion  with  the  original  de- 
fendant." This  rule,  it  will  be  observed,  only  applies  to  staying  proceed- 
ings regularly  commenced  on  the  assignment  of  a  bail  bond :  And  they 
cannot  be  stayed,  where  the  motion  is  made  on  behalf  of  the  defendant, 
without  an  affidavit  of  merits,  although  the  plaintiff  has  opposed  the  justifi- 
cation of  bail,  and  received  the  costs  of  opposition,  (ee)  The  affidavit,  if 
made  on  behalf  of  the  defendant^  must  expressly  state,  that  he  has  a  good 
defence  to  the  action  upon  the  7nerits  ;  ah  affidavit  that  he  has  a  good  de- 
fence to  the  action  merely,  not  being  sufficient  '-{ff)  And  if  the  application 
be  made  by  the  hail,  after  notice  of  render  has  been  given,  the  affidavit 
must  state  that  the  application  is  made  bona  fide,  on  their  behalf  :((/^)  But 
when  an  affidavit  of  merits  is  produced,  it  is  not  necessary  to  state  on  whose 
behalf  the  motion  is  made.(/i7i)  In  the  Common  Pleas,  on  motion  by  the 
bail  to  stay  proceedings  on  the  bail  bond,  or  against  the  sheriff,  on  payment 
of  costs,  the  court  do  not  require  the  bail  to  swear  to  merits ;  nor  is  there 
any  distinction  in  this  respect,  whether  a  trial  has  been  lost  or  not.(u')  In 
the  Exchequer,  Avhen  a  trial  has  not  been  lost,  the  court  on  motion  will 
stay  proceedings  on  an  assignment  of  a  bail  bond,  the  defendant  having 
since  put  in  and  perfected  bail,  without  payment  of  costs,  or  any  affidavit 
of  merits,  or  that  the  application  is  made  in  ease  of  the  sheriff,  or  bail;(^^) 
nor  will  they  order  the  bail  bond  in  such  a  case  to  stand  as  a  security,  but 
only  require  that  the  plaintiff  shall  be  put  in  the  same  situation  as  if  the 
bail  had  justified  in  due  time.(Z)  And  where  an  attorney  has  become  bail 
to  the  sheriff,  and  the  bail  bond  has  been  assigned,  the  court  will  upon  the 
usual  affidavit,  stay  the  proceedings  upon  the  bail  bond,  upon  payment  of 
the  costs.  1  Younge  &  J.  367.  And  they  refused  to  order  a  bail  bond 
to  stand  as  a  security,  where  the  plaintiff  had  lost  a  trial  by  his  own  con- 
duct, in  not  accepting  reasonable  terms  offered  him  by  the  defendant.(m) 
But  when  a  trial  has  been  lost,  the  bail  bond  must  stand  as  a  security. (n) 
And  the  court  will  not  stay  proceedings  on  a  bail  bond,  upon  the  ground 
that  the  affidavit  upon  which  the  bail  above  were  rejected  was  founded  on 
perjury,  except  upon  the  usual  terms  of  paying  the  costs  incurred  by  the 
assignment  and  subsequent  proceedings.    1  Younge  &  J.  403. 

(k)  9  Price,  5,  9. 

(a)  R.  M.  59  Geo.  III.  K.  B.  2  Bara.  &  Aid.  240.    1  Chit.  Rep.  348,  (a),  572,  3,  {a).    2  Chit. 
Rep.  373,4. 

(6)  Append.  Chap.  XIII.  §  3.  (c)  Id.  §  4. 

(dd)  Id.  I  5.  he)  1  Chit.  Rep.  677. 

(/)  5  Bara.  &  Aid.  703.  \gg)  1  Chit.  Rep.  127. 

{hh)  Id.  572.  {ii)  1  New  Rep.  C.  P.  123. 

{kk)  11  Price,  633,  636.    13  Price,  114.    M'CIel.  44,S.  C. 

[l)  3  Price,  52.    13  Price,  114.    M'CIel.  44,  S.  C.  (m)  8  Price,  610. 

[n)  13  Price,  115,  16.    Ante,  299,300. 


UPON  THE  BAIL  BOND.  302 

•  When  the  proceedings  on  a  bail  bond  are  irregular^  or  against  good 
faith,  it  is  not  necessary  to  put  in  and  perfect  bail  in  the  original  action, 
in  order  to  set  them  aside  :{o)  And  if  the  defendant  be  surroidcrcd  by  his 
bail  above,  though  Avithout  justifying,  after  the  time  allowed  them 
for  ^justification  has  expired,  the  court  of  King's  Bench,  we  [  *303  ] 
have  seen,  will  stay  the  proceedings  on  the  bail  bond,  upon  pay- 
ment of  costs.(a)  But  when  the  proceedings  are  regular,  and  the  defendant, 
not  having  been  surrendered  by  his  bail  above,  applies  to  stay  them  upon 
terms,  he  must  in  general  put  in  and  perfect  bail  above,  before  the  appli- 
cation is  made  :{b)  Yet,  upon  particular  occasions,  the  rule  to  stay  the 
proceedings  may  be,  upon  condition  that  the  defendant  shall  put  in  and 
perfect  bail.(c)  And,  whenever  the  defendant  is  guilty  of  a  neglect,  in 
not  putting  in  bail  in  due  time,  by  which  the  bail  bond  becomes  forfeited, 
the  notice,  in  case  the  party  mean  to  put  in  bail,  (in  order  to  stay  the 
proceedings  upon  the  bail  bond,)  should  be,  that  he  will  put  in  and  ijcrfect 
bail  on  such  a  day ;  when  the  plaintiff'  may  oppose  them  in  court,  without 
its  being  a  waiver  of  the  bail  bond.((^) 

Bail  above,  Avhen  necessary,  being  put  in  and  perfected,  the  court  should 
be  moved  in  term  time,  or  an  application  made  to  a  judge  in  vacation,(e) 
for  a  rule  or  summons  to  stay  the  proceedings  on  the  bail  bond,  on  payment 
of  costs,  and  that  in  the  meantime  all  proceedings  be  stayed ;  and  it  is  usual 
to  draw  up  the  rule  for  the  allowance  of  bail,  with  the  rule  or  summons  for 
staying  the  proceedings,  and  serve  them  both  together.  In  the  Common 
Pleas,  notice  of  the  intended  motion  should  be  given  to  the  plaintiff's 
attorney,  and  "  why  in  the  meantime  all  proceedings  should  not  be  stayed ;" 
otherwise  the  court  will  not  add  these  words  to  the  rule.(/)  When  the 
plaintiff  has  not  lost  a  trial,  the  court  in  term  time,  or  a  judge  in  vacation, 
will  stay  the  proceedings  on  the  bail  bond,  upon  putting  in  and  perfecting 
bail  above,  and  paying  the  costs  incurred  by  the  assignment  of  the  bail 
bond,  to  be  taxed  by  the  master  in  the  King's  Bench,  or  prothonotaries  in 
the  Common  Pleas  :  and  also,  if  necessary,  or  the  cause  require  it,((/)upon 
receiving  a  declaration  in  the  original  action,  pleading  issuably,  and  taking 
short  notice  of  trial,  so  that  the  cause  may  be  tried  the  same  tcrm.(Z()  But 
if  the  plaintiff  has  lost  a  trial,  the  court  or  a  judge  will  further  require  the 
bail  to  consent,  that  the  bail  bond  shall  stand  as  a  security,  even  when  the 
defendant  has  been  surrendered  by  his  bail.(i)  By  losing  a  trial  is  meant, 
that  the  plaintiff  has  been  prevented,  by  the  neglect  of  the  defendant  to 
put  in  or  perfect  bail  in  due  time,  from  trying  his  cause  in,  and  obtaining 
judgment  of  the  same  term  in  which  the  writ  was  returnable. (/.•)  This  of 
course  can  only  happen  in  toivii  causes,  or  where  the  venue  is 
laid  in  London  or  Middlesex  ; {I)  and  depends  on  the  *state  of  [  *304:  ] 

(o)  4  Moore,  149. 

(a)  5  Duruf.  &  East,  401,  534.  7  Durnf.  &  East,  297,  529;  and  sec  8  Durnf.  &  East,  222. 
Ante,  282. 

(6)  4  Moore,  149.  (c)  Per  Buller,  J.  H.  20  Geo.  III.  K.  B. 

(d)  Cowp.  769.  (c)  1  Sel.  Pr.  2  Ed.  188, 

(/)  Iiup.  C.  P.  7  Ed.  142.  '         (y)  2  Smith,  R.  13. 

(A)  R.  M.8  Ann.rfiT.  1,  (c),  K.  B.    Cowp.  71.    1  Bos.  &  Pul.  334. 

\i)  2  Barn.  &  Aid.  585.    1  Chit.  Rep.  270,  S.  C. 

\k)  1  Chit.  Rep.  270,  («),  357,  (n) ;  and  see  1  Dowl.  &  Ryl.  450.  8  Dowl.  &  Ryl.  140.  9 
Moore,  422.    2  Bing.  227,  S.  C. 

{I)  In  country  causes,  it  has  not  been  usual,  on  staying  proceedings  on  the  bail  bond, 
when  a  trial  hiis  been  lost,  to  require  the  bail  to  consent  that  the  bond  shall  stand  as  a 
security ;  though  there  seems  to  be  the  same  reason  for  it,  as  iu  town  causes :  and  see  1 


304  OF  PROCEEDINGS 

the  proceedings,  as  when  the  writ  was  returnable,  and  declaration 
delivered,  and  whether  the  defendant  lives  more  than  forty  miles  from 
London  ;  for  if  he  do,  he  is  entitled  to  fourteen  days'  notice  of  trial. (a) 
The  plaintiff  therefore,  in  opposing  the  rule  for  setting  aside  the  pro- 
ceedings on  the  bail  bond,  or  for  an  attachment  against  the  sheriff,  must 
show  distinctly  in  his  affidavit,  the  time  when  his  writ  was  returnable,  and 
declaration  delivered, (^>)  or  filed,  &c.  And  it  is  observable,  that  there  is 
a  difference  in  this  respect,  between  actions  by  hill,  and  by  original  writ: 
In  the  former,  the  jury  process  being  returnable  on  a  day  certain,  the 
plaintiff  may  obtain  judgment  of  the  term,  when  the  cause  is  tried  at  the 
last  sitting  ;  but  in  the  latter,  the  jury  process  can  only  be  made  return- 
able on  a  general  return ;  and  therefore,  when  the  cause  is  tried  at  the 
last  sitting,  which  happens  after  the  last  general  return,  the  plaintiff 
cannot  have  judgment  till  the  following  term.(c) 

In  the  King's  Bench,  when  the  application  is  to  set  aside  the  proceedings 
upon  the  bail  bond,  for  an  irregularity,  in  assigning  it,  or,  if  regular,  to 
stay  them  upon  terms,  the  rule  or  summons  and  afHdavit  should  it  is  said 
be  entitled  in  the  original  cause  :((Z)  but  when  the  application  is  to  stay  the 
proceedings,  for  some  irregularity  in  the  process  in  the  action  upon  the  bail 
bond,  the  rule  or  summons  and  affidavit  ought  to  be  entitled  in  that  action, 
and  not  in  the  original  cause. (e)  So,  in  the  Common  Pleas,  the  true  and 
proper  distinction  seems  to  be,  that  if  a  bail  bond  has  been  irregularly 
assigned,  the  affidavit  to  set  aside  the  proceedings  upon  it  must  be  entitled 
in  the  original  action ;  but  if  it  has  been  assigned  regularly,  then  in  the  action 
on  the  bail  bond :(/)  And,  in  that  court,  the  judgment  in  the  original  action, 
as  well  as  the  judgments  in  the  actions  against  the  bail,  may  be  set  aside 
upon  one  motion  and  affidavit,  entitled  in  the  original  action. (^)  When 
the  rule  for  staying  the  proceedings  is  made  absolute,  or  a  judge's  order 
obtained  upon  the  summons,  it  is  incumbent  on  the  defendant  immediately 
to  get  an  appointment  thereon  from  the  master  in  the  King's  Bench,  or 
prothonotaries  in  the  Common  Pleas,  to  tax  the  costs,  and  to  serve  a  copy 
of  it  upon  the  plaintiff's  attorney ;  and  when  the  costs  are  taxed,  to  pay 
the  same  without  delay, (A)  otherwise  the  rule  or  order  will  not  operate  as 
a  stay  of  proceedings.  After  the  proceedings  have  been  stayed  on  the 
bail  bond,  the  defendant  cannot  plead  in  abatement  in  the  original 
action  ;(^)  nor  a  plea  of  bankruptcy  pit/s  darrein  continuance. [k)  But, 
in  the  Common  Pleas,  though  it  was  formerly  usual  to  give  judgment,  on 

staying  proceedings  in  an  action  on  the  bail  bond,  when  *the 
[  *305  ]  bail  consented  that  it  should  stand  as  a  security,  and  execution 

only  was  stayed,(aa)  yet  it  is  now  holden,  that  the  bail  in  such 

Price,  535.  1  Younge  &  J.  373,  by  which  latter  case  it  appears  that  in  a  country  cause, 
where  the  plaintiff  has  lost  a  trial,  the  court  of  Exchequer  will  not  stay  proceedings  upon  a 
bail  bond,  unless  upon  the  terms  of  its  standing  as  a  security, 

(a)  Chit.  Rep.  357,  (a). 

(6)  /'/.  271,  in  notis.  Append.  Chap.  XIII.  §  6.  (c)  1  Chit.  Rep.  271. 

{d)  Webb  V.  Mitchell,  M.  48  Geo.  III.  K.  B. ;  and  see  4  Durnf.  &  East,  G89.  8  Durnf.  &  East, 
456.  Keille  v.  Woodfidd,  T.  40  Geo.  111.  K.  B.j  but  see  2  Chit.  Rep.  109,  by  which  it  seems, 
that  the  affidavit  may  be  entitled,  either  in  the  original  cause  or  in  the  action  on  the  bail 
bond.  (e)  Webb  v.  Mitchell,  M.  48  Geo.  III.  K.  B. 

(/)  7  Moore,  521.  1  Bing.  142,  S.  C. ;  and  see  Willes,  461.  Barnes,  94,  S.  C.  1  Bos.  &  Pul. 
337.    7  Moore,  600. 

(g)  3  Bos.  &  Pul.  118.  {h)  Imp.  K.  B.  10  Ed.  149.  1  Sel.  Pr.  201. 

{i)  2  Salk.  519.   Goss  v.  Harrison,  T.  44  Geo.  III.  K.  B.    2  Bos.  &  Pul.  465. 

(k)  4  Barn.&  Aid.  249. 

(aa)  Barnes,  85. 


UPON  THE  BAIL  BOXD.  305 

case  arc  at  liberty  to  plead  to  the  action  on  the  Lail  bond  ;  and  conse- 
quently are  entitled  to  a  rule  to  plead,  and  demand  of  a  plea,  before  judg- 
ment can  be  signed  against  them. (6) 

The  sheriff's  bail  are  liable  to  pay  what  is  really  due  to  the  plaintiff, 
though  beyond  the  sum  sworn  to  and  costs,  to  the  full  extent  of  the  pen- 
alty of  the  bond  :{c)  and  they  are  liable  for  their  own  costs,  as  well  as 
those  of  the  original  action.  And  whore  several  actions  are  brought  upon 
the  bail  bond,  it  is  usual,  in  suing  out  execution,  to  apportion  the  debt 
and  costs  in  the  original  action,  amongst  the  different  defendants,  so  as  to 
levy  a  part  on  each,  together  with  his  own  costs. (rZ)  But  the  bail,  it 
seems,  are  not  liable  beyond  the  pcnalt}'-  of  the  bond,  where  they  are  let 
in  upon  terms  to  try  the  cause,  the  bail  bond  standing  as  security  ;  although 
tlic  debt  and  costs  exceed  the  penalty  after  the  trial. (t')  If  the  j^htintiff 
die  after  the  arrest,  and  before  the  return  of  the  writ,  the  court  will  set 
aside  proceedings  on  the  bail  bond.(/)  And  where  the  defendant  dies, 
before  the  plaintiff  could  have  had  judgment  against  him,  if  there  had 
been  no  delay  in  putting  in  and  perfecting  bail,  the  courts  will  stay  pro- 
ceedings on  the  bail  bond,  upon  payment  of  costs  only :(/-///)  But  they 
will  not  relieve  the  sheriff's  bail,  upon  the  death  of  the  defendant,  where 
the  plaintiff  might  have  had  judgment  against  him,  if  bail  above  had  been 
put  in  and  perfected  in  time.(A/i)  The  bail  cannot  avail  themselves  of  the 
hankruptcij  of  the  defendant :(«)  And  it  seems,  that  rendering  the  defen- 
dant to  the  King's  Bench  prison,  before  the  return  of  the  writ,  will  not 
discharge  his  bail  to  the  sheriff.(A;/f)  But  if  the  defendant  or  his  bail 
become  bankrupt,  after  the  bond  is  forfeited,  the  plaintiff's  demand,  being 
proveable  under  the  commission,  is  barred  by  the  certificate. (Z)  The  bail 
to  the  sheriff  are  discharged  by  the  defendant's  giving  a  cognovit  without 
the  knowledge  of  the  bail,  for  payment  of  debt  and  costs. (?>j)  And,  in  the 
case  of  a  render  in  discharge  of  bail,  the  court  will  stay  the  proceedings 
on  a  bail  bond  without  costs,  if  the  notice  of  render  be  given  before  the 
assignment  ;(n)  otherwise  not.(o) 


*If  there  be  no  bail  bond,  or  the  plaintiff  be  dissatisfied  with 
the  bail  taken  by  the  sheriff,  it  is  usual  to  rule  him  to  return  the    [  *306  ] 
writ;(a)[A]  and  in  the  King's  Bench,  we  have  seen,(W)  if  the  bail 

{b)  1  New  Rep.  C.  P.  G3. 

(c)  .lavage  v.  West,  9  Geo.  III.  cited  in  Cowp.  71.8  Durnf.  &  East,  28.  1  East,  91,  in  notia. 
K.  B.  2  Biac.Rep.  816.  1  H.  Blac.  76,  C.  P. 

(rf)  It  is  not  in  general  necessary,  however,  to  brinpj  several  actions  on  the  hail  homl  ; 
and,  if  brought  without  sufficient  reason,  the  court  of  King's  Bench,  we  have  seen,  will  only 
allow  the  costs  of  one  action.    Ante,  300. 

(e)  2  Smith  R.  354.  (/)  8  Mod.  210. 

\gg)  Cowp.  71.    Barnes,  61,  70,  99. 

(M)  R.  M.  8  Ann.  rc^.  l,(c),K.  B.    Gilb.  K.  B.  302.    Cowp.  71.    Barnes,  99,  112. 

[ii)  I  Ken.  504.  1  Bur.  244,  S.  C.  /f/.43G.  Carmichael  v.  Chandler,  Imp.  K.  B.  10  Ed.  149. 
2  East,  442  ;  but  see  Barnes,  105. 

{kk)  Forster  v.  Ilgde,  M.  41  Geo.  III.  K.  B. ;  but  see  3  Bos.  &  Pul.  232.  Ante,  226. 

{I)  Cowp.  25  ;  and  see  4  .Moore,  350.    2  Brod.  &  Bing.  8,  S.  C. 

(m)  4  Barn.  &  Aid.  91.    Ante,  295,  301. 

(n)  2  Chit.  Rep.  103  ;  and  see  2  New  Rep.  C.  P.  85. 

(o)  5  Durnf.  &  East,  401,  534.  7  Durnf.  &  East,  2D7,  529  ;  and  see  8  Durnf.  k  East,  222. 
Ante,  282. 

(a)  Gilb.  C.  P.  21.  R.  M.  G  Geo.  II.  (a),  K.  B.  2  Wras.  Saund.  5  Ed.  61,  c,  (7) ;  and  see 
Append.  Chap.  XIII.  §  7,  8,  9.  {hb)  Ante,  255. 

[a]  In  Pennsylvania,  since  the  act  of  1836,  the  plaintilT  excepting  to  the  bail  taken  by  the 


306 


or  PROCEEDINGS 


to  the  slicrifF  become  bail  above,  the  plaintiff  cannot  except  to  them,  after 
he  has  taken  an  assignment  of  the  bail  bond  ;  though  it  is  otherwise  in  the 
Common  Pleas :  In  the  King's  Bench  therefore,  if  the  plaintiff  be  dissatis- 
fied with  the  bail  taken  by  the  sheriff,  he  can  only  proceed  by  ruling  hira 
to  return  the  writ,  and  bring  in  the  body ;  for  if  he  were  to  take  an 
assignment  of  the  bail  bond  he  would  admit  the  sufficiency  of  the  bail  to 
the  sheriff,  and  if  they  were  afterwards  put  in  as  bail  above,  he  could  not 
except  to  them.  But  a  rule  to  return  the  writ  cannot  be  had,  after  the 
plaintiff  has  taken  an  assignment  of  the  bail  bond,  if  valid  ;  for,  by  taking 
such  assignment,  he  discharges  the  sheriff;(c)  though  if  the  bail  bond  be 
void,  it  is  otherwise.(tZ)  And  where  there  were  three  defendants,  two  of 
whom  were  arrested  and  bailed,  and  the  plaintiff  took  assignments  of  the 
bail  bonds,  and  as  to  the  third,  the  sheriff  returned  non  est  inventus,  the 
court,  under  these  circumstances,  discharged  the  rule  to  bring  in  the 
body.(e)  So  it  has  been  holden,  that  if  the  sheriff  appoint  a  special  bail 
to  arrest  the  defendant,  at  the  request  of  the  plaintiff  or  his  agent,  he 
cannot  be  ruled  to  return  the  writ:(/)  but  he  is  notwitstanding  respon- 
sible for  the  safe  custody  of  the  defendant  after  the  arrest  made.(^)  The 
proper  course  seems  to  be  for  the  sheriff,  when  ruled  to  return  the  writ 

(c)  Gilb.  0.  P.  21.  1  Salk.  99.  3  Bos.  &  Pul.  564;  and  see  2  Chit.  Rep.  391. 

(d)  1  "Wils.  223.    Williams  v.  Jacques,  M.  24  Geo.  III.  K.  B.  (e)  2  Chit.  Rep.  391. 
(/)  2  Blac.  Rep.  952.    4  Durnf.  &  East,  119.    1  Chit.  Rep.  613,  14.  (a). 

(g)  8  Durnf.  &  East,  505  ;  and  see  2  Esp.  Rep.  591.  1  Chit.  Rep.  614,  iii  notis.  9  Moore,  71. 
2  Bing.  65,  S.  C. 

sheriff,  may  rule  him  to  bring  in  the  body,  and  the  court  can  compel  obedience  to  the  rule 
by  attachment.  Wltite  v.  Fitler,  7  Barr,  533.  "At  the  common  law,"  says  Chief  Justice 
Gibson  in  this  case,  p.  534,  "  the  sheriff's  return  to  a  capias  ad  respondendum,  was  that  he 
had  talceii  the  defendant,  and  had  him  ready  in  court  at  the  return  day  of  the  writ ;  and  it 
continued  to  be  so  after  the  enactment  of  the  statute  23  Hen.  VI.,  only  because  it  was  at 
first  supposed  to  be  a  private  one,  and  the  bond  was  consequently  supposed  to  be  the 
sheriff's  private  security  against  the  consequences  of  setting  the  prisoner  at  large,  while  he 
was  supposed  to  be  potentially  within  the  officer's  grasp,  though  he  would  have  been  a 
trespasser  had  he  laid  a  finger  on  him.  It  was,  therefore  thought,  that  as  the  court  could 
not  take  notice  of  the  statute  where  it  was  not  pleaded,  it  could  not  recognize  the  validity 
of  a  return  exclusively  grounded  upon  it.  Hence  the  form  of  the  return  has  continued  to 
be  the  same  in  England  perhaps  to  this  day,  notwithstanding  the  grumbling  of  the  judges 
at  the  earlier  decisions,  and  their  entire  overthrow  in  Samuel  v.  Uvans,  2  Term  Rep.  569, 
by  which  the  statute  of  the  23  H.  VI.  was  declared,  as  it  ought  to  have  been  at  first,  a 
public  one.  The  history  of  the  subject  is  condensed  in  a  note  to  Benson  v.  Welby,  2  Saund. 
155.  What  might  have  been  the  effect  of  a  modification  of  the  return  on  a  question  like 
the  present  in  the  English  courts,  it  is  impossible  to  say;  but,  in  Pennsylvania,  where  the 
statute  was  always  held  to  be  a  public  one,  the  return  in  use,  perhaps  from  the  foundation 
of  the  province,  has  been  '  cepi  corpus  and  bail  bond,'  and  yet  no  one  ever  doubted  the 
power  of  the  court  to  rule  the  sheriff  to  bring  in  the  body.  It  was  put  exactly  on  a  footing 
with  the  vetu.ru  par  a  him  Jrnbeo,  which  every  one  knew  to  be  a  fiction  where  the  defendant 
was  at  large.  Had  the  sheriff'  not  produced  him,  he  could  not  have  been  successfully  sued 
for  a  false  return  in  even  the  English  courts ;  for,  in  Laughton  v.  Gardner,  Moor,  428,  in 
which  it  was  held  that,  had  he  pleaded  the  statute  as  a  justification,  instead  of  confessing 
the  falsity  of  his  return  by  a  demurrer,  he  would  have  had  judgment.  He  would  have  it 
now  without  pleading.  Under  the  practice  in  Pennsylvania,  however,  the  return  being 
adapted  to  the  truth  of  the  case  on  the  admitted  basis  that  the  statute  was  a  public  one, 
there  was  no  discrepancy.  The  return  on  the  23  H.  VI.  here  was,  as  it  is  now,  on  the 
statute  of  1836,  that  the  sheriff  had  taken  the  defendant  and  a  bail-bond,  which  differed 
from  the  one  at  present  in  use  only  in  the  form  of  the  condition.  This  return  to  be  sure, 
showed  no  compliance  with  the  command  of  the  writ,  which  was  to  have  the  defendant  in 
court ;  but  it  showed  a  compliance  with  the  legal  effect  of  it  as  modified  by  the  statute 
which  authorized  him  to  dispense  with  the  letter  of  the  mandate,  and  sustained  the  return 
just  as  an  aj)pearance  within  six  weeks  after  the  return  of  the  writ,  was  held  in  Lynn  v. 
M-Millcn,  3  Penna.  Rep.  170,  to  sustain  by  force  of,  4  Anne,  c.  10,  s.  20,  the  plea  of  com- 
peruit  ad  diem  in  an  action  on  a  bail  bond." 


AGAINST  THE  SHERIFF,  ETC.  30G 

after  a  special  bailiff  has  been  appointed,  instead  of  making  a  return,  to 
move  the  court  to  set  aside  tlie  rule  to  return  it.{Ji) 

Tlie  rule  to  return  the  writ  is  a  side-har  or  treasury  rule.  In  the  King's 
Bencli,  it  is  obtained  from  the  clerk  of  tiie  rules ;  and  usually  taken  out  on 
the  return  day  of  the  writ  by  hill,  or  quarto  die  pout  by  original,  in  order 
that  it  may  keep  pace  with  the  time  to  put  in  bail :  But  it  cannot  regularly 
be  taken  out  before,  though  dated  on  the  return  day,(/)  or  cjuarto  die  post 
by  original. (/f)  In  tlie  Common  Pleas,  the  rule  to  return  the  writ  is  obtained 
from  the  secondaries,  and  usually  taken  out  on  the  first  day  of  term,  when 
the  process  is  returnable  on  tlie  first  return  ;  or  if  returnable  on  the  second, 
or  any  subsequent  return,  it  may  be  taken  out  on  the  return  day  of  tiie  pro- 
cess ;  being  the  periods  from  which  the  time  for  putting  in  bail  is  reckoned. 
But  by  statute  20  Geo.  II.  c.  37,  §  2,  "  no  sheriff  shall  be  liable  to  be  called 
upon  to  make  a  return  of  any  writ  or  process,  unless  he  be  required  so  to 
do,  within  six  months  after  the  expiration  of  his  ofl^ce."  Upon  which 
statute  it  has  been  holden,  in  case  of  sheriffs,  that  the  months 
are  lunar  months,(/)  that  the  day  of  the  *sheriff's  quitting  his  [  *'"]07  ] 
office  is  to  be  reckoned  as  one;(rt)  and  that  the  sheriff  cannot  be 
ruled  to  return  the  writ,  after  the  expiration  of  six  months,  though  re- 
quested before.(J)  In  the  courts  of  Great  Sessions  inWales,  the  protho- 
notaries  are  authorized,  by  a  late  act  of  parliament,((?)  to  grant  rules  for 
sheriffs  to  return  writs  in  vacation. 

The  rule  to  return  the  writ,  being  intended  to  bring  the  sheriff  into  con- 
tempt must  be  personally  served  on  the  sheriff  himself,  or  his  under-sher- 
iff;((7)  except  in  London,  Middlesex,  and  Surrey,  where  service  on  the 
deputy  secondary  of  the  compters,  sheriff's  deputy,  or  under-sheriff 's  agent 
in  town,  is  deemed  sufficient  ;(e)  for  as  six  days  only  are  allowed,  after 
service  of  the  rule,  to  return  the  writ,  it  might  otherwise  be  impossible  to 
obey  the  rule  in  distant  countries.  In  the  King's  Bench,  the  rule  to  re- 
turn the  writ  expires  in  four  da3's  after  service,  in  London,  or  Middle- 
sex ;{f)  and  in  six  days,  in  any  other  city  or  county.(^)  And  the  writ 
should  regularly  be  returned  by  the  sheriff,  on  the  day  on  which  the  rule 
for  returning  it  expires,  if  in  term  :  but  when  the  rule  expires  in  vacation, 
the  sheriff  need  not  return  it  till  the  first  day  of  the  ensuing  term,  and  has 
the  whole  of  that  day  to  file  his  return. (7J/)  In  the  Common  Pleas,  the 
sheriff  had  formerly  in  all  cases  six  days  after  service  of  the  rule,  to  re- 
turn the  writ;(n)  but  the  time  for  returning  it,  in  toivn  causes,  was  after- 
wards reduced  io  four  days;(A:7t)  so  that  now  it  is  the  same  in  both  courts. 
But,  in  the  Common  Pleas,  when  the  rule  to  return  a  writ  expires  in  vaca- 
tion, the  sheriff  must  file  it  at  the  return,  and  cannot  wait  till  the  ensuing 
term  ;  the  Common  Pleas  oflEice  being  open  during  vacation  :(/^)  And  this  is 
also  the  practice  in  the  Exchequer.(??i?;i) 

The  sheriff  being  ruled  to  return  the  writ,  either  does,  or  docs  not  re- 
turn it.     And  where  the  writ  is  executed  by  the  old  sheriff  while  in  office, 

(/()  1  Chit.  Rep.  614,  in  notig. 

((•)  1  Durnf.  &  East,  552.    2  East,  242.  (A)  Per  Cur.  M.  42  Geo.  III.  K.  B. 

(/)  Doug.  403.    2  Wins.  Saund.  5  Ed.  47,  m. 

\a)  Doug.  463.    2  Wnis.  Saund.  5  Ed.  47,  q.  (h)  2  Durnf.  &  East,  1. 

( c)  Stat.  5  Geo.  IV.  c.  106,  <i  7.  (d)  Cis.  Pr.  C.  P.  123.  Pr.  Reg,  381,  S.  C. 

(c)  Doug.  420.    3  Durnf.  &  East,  351.  (/)  R.  T.  6  Geo.  III.  K.  B.  3  Bur.  1921. 

Iff)  Xolice,  M.  6  Geo.  II.  K.  B.  (Iih)  5  East,  3S6.  1  Smith,  R.  427,  S.  C. 

{»)  R.  H.  8  Geo.  I.  C.  P.  {kk)  R.  H.  7  Geo.  III.  C.  P.  Barnes,  494. 

(«)  Taunt.  647.  I  Marsh.  270,  S.  C  (m)  9  Price,  255. 


307 


OF  PROCEEDINGS 


he  oufflit  to  make  his  return  to  the  same,  and  hand  such  writ  and  return 
over  to  the  neiv  sheriff,  -who  comes  into  office  hefore  the  return  day;  and 
such  new  sheriff  will  return  the  writ,  with  the  old  sheriff's  return  thereon: 
and  if  the  old  sheriff,  after  arresting  a  defendant,  suffer  him  to  escape, 
and  go  out  of  office  before  the  return  day,  he  is  answerable  for  the 
escape. (w)  The  new  sheriff,  however,  is  not  answerable  for  the  escape  of 
a  debtor  taken  in  execution  in  the  time  of  his  predecessor,  and  not  tleliv- 
ered  over  to  him  by  indenture,  1  ]Moody  &  M.  34.  If  there  be  no  return, 
it  is  a  contempt ;  for  which  the  court,  on  a  proper  affidavit,  (o)will  grant  a 
rule  for  an  attachment :(/))  and  this  is  the  constant  mode  of  proceeding 
against  the  late  sheriff, ((/)  as  well  as  the  present  one ;  for,  as  to  the  former, 
he  ought  in  strictness  to  have  returned  the  writ  before  he  was  out  of 
office,  and  therefore  the  contempt  Avas  actually  committed  whilst 
[  *308  ]  he  was  a  servant  of  the  court. (^)  But  where  the  sheriff,  on  *be- 
ing  ruled  to  return  a  writ,  gave  notice  to  the  plaintiff  that  the 
writ  was  lost,  and  that  the  defendant  was  in  custody,  the  plaintiff  should 
have  proceeded  as  if  the  sheriff  had  returned  cepi  corpus  ;  and  the  court 
of  Common  Pleas  set  aside  an  attachment  issued  against  the  sheriff,  for 
not  returning  the  writ. (a)  The  writ  should  regularly  be  returned,  by  the 
sheriff,  on  the  day  on  which  the  rule  for  returning  it  expires ;  and  in  de- 
fault thereof,  the  plaintiff  may  move  for  an  attachment  on  the  next  day  :(5) 
or,  if  the  rule  expire  on  the  last  day  of  term,  he  may  move  for  an  at 
tachment  at  the  rising  of  the  court  on  that  day ;((?)  and  the  rule  for  the 
attachment  is  regular,  though  the  sheriff  make  his  return  on  a  subsequent 
day  in  vacation,  before  he  is  actually  served  with  the  rule.(c)  In  order  to 
ascertain  the  time  of  making  the  return,  in  the  King's  Bench  the  custos 
brevium  is  required  to  indorse  on  every  writ,  on  what  day,  and  at  what 
hour  the  same  was  filed. (c?) 

The  sheriff's  return  to  a  capias  ad  respondendum  is  either  that  the  defend- 
ant is  not  found  in  his  bailiwick, (e)  or  that  he  has  taken  him ;  and,  in  the  lat- 
ter case,  it  is  either  that  he  has  him  ready, [f)  or  in  custody, {g)  to  answer 
the  plaintiff;  or,  by  way  of  excuse,  that  he  is  sicJc,{h)  (languidus  est,) 
or  has  escaped,  or  been  rescued  ;(^)  or  that  the  sheriff  has  discharged  him, 
or  delivered  him  over  to  another  custody,  by  direction  of  the  plaintiff,(A;) 
or  by  order  of  the  court ;(?)  or  that  he  has  been  discharged  from  the  arrest, 
under  the  statute  43  Geo.  III.  c.  46,  §  2,  on  depositing  in  the  sheriff 's 
hands,  the  sum  indorsed  on  the  writ,  with  ten  pounds  in  addition  to  answer 
costs,  &c.  And  where  the  return  to  a  writ  of  latitat  stated,  that  the  de- 
fendant was  insane,  and  could  not  be  removed  without  great  danger,  and 
continued  so  till  the  return  of  the  writ  to  court,  we  have  seen,(m)  refused 
an  attachment  against  the  sheriff.    But  where  the  return  to  a  writ  of  latitat 

{n)  4  East,  604 ;  and  see  6  Taunt.  231.  1  Marsh.  554,  S.  C. 

(o)  Append.  Chap.  XIII.  §  10,  11. 

(p)  N.  M.  6  Geo.  II.  R.  T.  17  Geo.  III.  K.  B.    Append.  Chap.  XIII.  §  12,  13. 

Iq)  Doug.  464.  {a)  1  Marsh.  289. 

\b)  R.  M.  32  Geo.  III.  K.  B.  4  Durnf.  k  East,  496  ;  and  see  1  Price,  338.  1  Chit.  Rep. 
356,  (a). 

(c)  11  East,  591.  1  Chit.  Rep.  356,  (a).  R.  T.  38  Geo.  III.  C.  P.  Pos?,  312. 

{d)  R.  T.  30  Geo.  III.  K.  B.  3    Durnf.  &  East,  787. 

(e)  Append.  Chap.  XIII.  ^  14,  17.  (/)  Id.  §  15,  17.  {g)  Id.  ?  16. 

[h)  Id.  §  21.  But  it  does  not  seem  to  be  a  good  return  to  a  capias,  that  the  defendant  is 
dead.    0.  Bridg.  469.  (;)  Append.  Chap.  XITI.  ?  18. 

(k)  6  Moore,  497.  (1)  Append.  Chap.  XIII.  ^  19,  20. 

[m)  Ante,  216. 


AGAINST  THE  SHERIFF,  ETC,  308 

Stated  tliat  the  defendant,  upon  being  arrested  in  his  own  liouse,  was  con- 
fined to  his  bed  by  illness,  and  eould  not  be  removed  without  danger  to 
his  life,  and  continued  so  ill  at  and  after  the  return  of  the  writ,  and  for 
such  cause  the  custody  of  the  defendant  was  relinquished  ;  the  court  were 
of  opinion  that  this  return  was  bad,  though  they  allowed  the  sheriff  time 
to  amend  it  upon  payment  of  costs, (n)     And  where  the  sherifl'  returned 
as  follows,  "  I  have  taken  the  body  of  M.  N.,  and  kept  and  detained  her 
in  custody,  till  it  appeared  to  me,  that  she  had  surrendered,  in  discharge 
of  her  bail,  into  the  custody  of  the  marshal,  and  was  in  his  custody,  to 
all  intents  and  purposes,  by  virtue  of  the  act  for  indemnifying  the  mar- 
shal for  escapes  in  consequence  of  prisons  being  burnt, "(o)  the 
court  quashed  the  *return  as  bad,  and  would  not  give  leave  to  [  '309  ] 
amend  it, (art)     So,  Avhere  the  sheriff  had  untruly  returned  to  a 
capias^  that  he  had  taken  the  defendant,  whose  body  remained  in  prison 
under  his  custody,  the  court  of  Common  Pleas  refused  to  allow  him  to  amend 
his   return,  by  striking   it  out,  and   making   another,   according  to   the 
fact. (6)     If  the  sheriff  return  non  est  inventus^  where  he  has  or  might 
have  taken  the  defendant,  he  is  liable  to  an  action  for  a  false  return  ;(c) 
and  if  he  return  cepi  corpus,  et  paratum  habeo,  where  he  has  taken  the 
defendant,  and  let  him  go  at  large  without  bail,  he  is  liable  to  an  action, 
if  the  defendant  be  not  in  custody,  or  bail  above  be  not  put  in  and  per- 
fected, at  the  return  of  the  writ,(cZ)     But  when  the  sheriff  has  taken 
bail,  he  is  not  liable  to   an  action,  upon  the  return   of  cepi  corpus  et 
paratum  habeo ;{e)  for  it  was  his  duty  to  take  bail:    and   though  the 
latter  part  of  the  return  be  not  strictly  true,  yet  this,  which  was  the 
ancient  return,  is  not  altered  by  the  statute  23  Hen.  VI.  c.  9.     Still, 
however,  he  might  have  been  amerced  by  the  courts,  upon  such  return, 
for  not  bringing  in  the  body,  or  putting  in  and  perfecting  bail  above ;(/) 
and  in  the  beginning  of  the  reign  of  George  the  Second,  the  practice  of 
amercing  the  sheriff  appears   to  have  given  way  to   the  proceeding  by 
attachment, ((/) 

If  the  defendant  reside  within  a  liherty,  the  bailiff  of  which  has  the 
execution  and  return  of  writs,  it  is  usual  for  the  sheriff  to  return,  that  he 
has  made  his  mandate  to  the  bailiff  of  the  liberty,  who  has  given  him  no 
answer,  or  has  returned  that  the  defendant  is  not  found  in  his  bailiwick,  or 
that  he  has  taken  the  defendant  and  has  him  ready, (7i)  In  the  first  case, 
the  plaintiff  is  entitled  to  a  non  omittas,  by  the  statute  Westm.  "2,  c,  39:(z) 
In  the  second,  if  the  return  be  false,  the  bailiff  is  liable  to  an  action  ;  the 
sheriff  not  being  answerable  at  common  law,  for  the  false  return  of  the 
bailiff:(/c)  In  the  last  case,  the  ancient  mode  of  proceeding  was  by  dis- 
tringas ;[l)  but  it  seems  that  the  bailiff  may  now  be  called  upon  by  rule^ 

{n)  8  Dowl.  &  Ryl.  606. 

(o)  Stat.  21  Geo.  III.  c.  1.  {aa)  Per  Cur.  T.  21  Geo.  III.  K'.  15. 

(b)  7  Moore,  552.     1  Ding.  156,  S.  C,  and  see  8  Moore,  518.     1  Bing.  423,  S.  C. 

(c)  2  Esp.  Rep.  475. 

((/)  Gill).  C.  P.  22.     Noy.  39.     1  Mod.  228.     2  Mod.  178,  S.  C. 

{c)  Cro.  Eliz.  624,  808,  852.     Nov,  39,  S.  C.     1   Sid.  22,  439.     1  Vent.  55,  85.     2  Wms. 
Saund.  oEd.GO,  154.    1  Mod.  35,  5""  227.    2Mod. 83,177.    3  Sulk.  314,  15.     An(c,2:i5. 

(f)  Same  cases  as  in  the  preceding  note;  and  R.  .M.  6  Geo.   II.,  (<j),  K.  IJ.     1  Wils.  262. 
1  H.  Biac.  233,  4. 

[g)  2  H.  Blac.  434,  [a) ;  and  see  2  Wms.  Saund.  5  Ed.  58,  (2). 
(A)  Off  Brcv.  216.     Ret.  Bnv.  168,  9.     Append.  Cliap.  XIII.  J  22. 
(i)  Gilh.  C.  P.  26.     1  Barnard.  K.  B.  282.     9  East,  330. 

(k)  Gilb.  C.  P.  30. 

{/)  Id.  31.     Brownl.  Brev.  Jud.  35.  &c.     Append.  Cbap.  XIII.  J  23,  4. 

Vol.  I.— 20 


300  OF  PROCEEDINGS 

to  bring  in  the  body.(w)  If  the  bailiflf  make  an  insufficient  return,  he  is 
liable  to  he  amerced  for  it,  and  not  the  sheriff,  by  the  statute  27  Hen. 
YIII.  c.  24,  §  9.(?i) 

Upon  the  sheriff's  return  oi  cepi  corpus,  et  paratum  habeo,  if  bail  above 
be  not  duly  put  in,  or,  if  put  in  and  excepted  to,  they  do  not  justify  in 
due  time,  the  plaintiff  has  his  election,  either  to  take  an  assignment  of  the 
bail  bond,  or  to  proceed  against  the  sheriff,  by  ruling  him  to 
[  *310  ]  bring  in  the  body  ;(o)  *and  if  there  be  no  bail  bond,  or  the  plain- 
tiff be  dissatisfied  with  the  bail  taken  by  the  sheriff,  it  is  usual, 
and  necessary  in  the  King's  Bench,  for  the  plaintiff  to  rule  him  to  bring  in 
the  body,  (a)  But  where,  on  the  return  of  cepi  corpus,  the  plaintiff  brought 
an  action  against  the  sheriff  for  an  escape,  and  recovered  damages,  the 
court  of  King's  Bench  held,  that  he  could  not  afterwards  rule  the  sheriff 
to  bring  in  the  body,  with  a  view  to  proceed  in  the  original  action  for 
costs.(66)  The  rule  to  bring  in  the  body  is  a.  four  day  rule  in  London  or 
Middlesex,  and  a  six  day  rule  in  any  other  city  or  county  ',[cc)  and  should 
be  served  in  like  manner  as  the  rule  to  return  the  writ.  In  the  King's 
Bench,  it  is  a  side  bar  rule,  and  obtained  from  the  clerk  of  the  rules  ;(c?) 
but,  in  the  Common  Pleas,  it  is  given  by  the  filacer  who  issued  the  pro- 
cess, (e)  on  a  note  or  extract  of  the  writ  and  return  from  the  custos  bre- 
vium,  after  which  the  rule  is  drawn  up  by  the  secondaries, (/)  and 
served. (</)  And  there  should  be  no  delay  in  giving  the  rule  :  for  where 
the  sheriff  had  returned  cejji  corpus  to  a  bailable  writ  in  Hilary  term, 
upon  which  the  plaintiff  proceeded  no  further  till  3ficJiaelmas  term  follow- 
ing, and  in  the  mean  time  the  bail  became  insolvent,  and  the  defendant 
absconded,  the  court  of  King's  Bench  thought  it  unreasonable  that  the 
sheriff  should  be  called  upon  to  bring  in  the  body  after  such  delay  :  and 
they  set  aside  an  attachment  which  had  issued  against  him  for  not  doing 
it.(A) 

The  intent  of  this  rule,  when  the  defendant  is  not  in  custody,  is  to  com- 
pel the  sheriff  to  put  in  and  perfect  bail  above  ;{i)  And  it  cannot  in  gene- 
ral, be  taken  out  until  the  time  for  putting  in  bail  has  expired  ;[k)  for  it  is 
necessary  that  the  proceedings  against  the  sheriff  should  keep  pace  with 
the  times  allowed  for  putting  in  and  perfecting  bail ;  otherwise  this  incon- 
venience might  ensue,  that  the  sheriff  might  be  fixed  with  the  payment  of 
the  debt  and  costs,  and  upon  his  bringing  an  action  against  the  defendant 
or  his  bail,  upon  the  bail  bond,  they  might  plead  co7nperuit  ad  diem.  In 
the  King's  Bench,  where  the  rule  to  return  the  writ  is  given  on  the  return 
day,  a  rule  to  bring  in  the  body,  dated  on  the  day  of  the  return  by  the 
sheriff  of  cepi  corpus,  though  issuing  afterwards  in  the  vacation,  is  irregu- 
lar.(?)     But  where  the  writ,  in  a  country  cause,  was  returnable  on  the^rs^ 

(m)  2  Durnf.  &  East,  5.  (n)  Gilb.  C.  P.  30.  (o)  Ante,  297. 

(a)  Wms.  Saund.  5  Ed.  61,  {d).  (bb)  2  Barn.  &  Aid.  623.     1  Chit.  Rep.  393,  S.  C. 

(cc)  N.  M.  6  Geo.  II.     R.  T.  6  Geo.  III.     3  Bur.  1921,  K.  B.     N.  H.  7  Geo.  III.  C.  P. 

(d)  Append.  Chap.  XIII.  g  25. 

(e  R.  T.  2  W.  &  M.  reff.  1,  C.  P.     Append.  Chap.  XIII.  ^  26. 

(/)  Append.  Chap.  XIII.  ^  27.  And  for  the  form  of  the  rule  in  the  Exchequer,  see  id. 
§28. 

(5')Imp.  C.  P.  7  Ed.  149,  155. 

(h)  7  Durnf.  &  East,  452  ;  and  see  3  Bos.  &  Pul.  151.     9  East,  467. 

{{)  R.  M.  6  Geo.  II.  [a),  K.  B.     1  Wils.  262.     1  H.  Blac.  233,  4. 

(k)  5  Durnf.  &  East,  479.  8  East,  525.  Spicer  v.  Linnel,  E.  23  Geo.  III.  C.  P.  Imp.  C. 
P.  7  Ed.  212.     2  H.  Blac.  276.     1  Price,  3,  103. 

{I)  2  East,  241. 


AGAINST  THE  SHERIFF,  ETC.  310 

of  Juno,  and  the  sheriff  was  ruled  to  return  it  on  the  second,  and  on  the 
eighth  he  returned  cepi  corpvs,  upon  which  the  plaintiff,  on  the  same  day, 
served  him  with  a  rule  to  bring  in  the  body,  and  on  i\\Q  fifteenth  obtained 
an  attachment,  the  court  held  the  proceedings  to  be  regular; 
although  it  was  objected,  that  the  sheriff  had  all  the  ehjhth  to  [  *311  ] 
return  the  writ,  and  *conscqucnt]y,  that  the  rule  to  bring  in  the 
body  should  not  have  been  served  till  the  ninth:  for  in  this  case,  the  time 
for  putting  in  bail  had  expired,  before  the  service  of  the  rule  to  bring  in 
the  body:(a)  Agreeably  to  which  it  is  now  settled,  that  in  all  cases  where 
the  time  for  putting  in  bail  has  expired,  the  sheriff  may  be  ruled  to  bring 
in  the  body,  on  the  same  day  that  he  returns  cepi  corpms.[l>) 

When  the  sheriff  is  called  upon  to  bring  in  the  body,  he  must  either  brin^ 
it  into  court,(c')  or  put  in  and  perfect  bail  above,  within  the  time  allowed 
him  by  the  rule:(c?(^)  otherwise  it  is  a  contempt,  for  which  the  court  will 
grant  an  attachment,  on  an  affidavit  of  the  service  of  the  rxx\(i,{ee)  and  that 
no  bail  has  been  put  in  ;  or  that  bail  has  been  put  in,  but  not  perfected. (]^) 
an  affidavit  that  the  plaintiff's  attorney  had  received  notice  of  bail,  not 
being  sufficient  :(^)  And  where,  on  a  just  cause  of  action  against  two^ 
defendants,  the  sheriff  was  served  with  two  different  rules  to  bring  in  the- 
bodies ;  the  court  of  Common  Pleas  held,  that  two  writs  of  attachment 
should  be  issued  against  the  sheriff,  on  his  non-compliance  with  such, 
rules. (//)  But  the  contempt  is  not  incurred  till  the  day  is  past,  on  which 
the  rule  to  bring  in  the  body  expires  ;  for  the  sheriff  has  the  whole  of  that 
day  to  bring  it  in,  and  therefore  an  attachment  cannot  be  moved  for  till 
the  next  day:(^)  And,  in  the  King's  Bench,  the  sheriff,  we  have  seen,(/c) 
is  not  liable  to  an  attachment,  where  the  defendant  is  rendered  at  any 
time  before  the  expiration  of  the  day  allowed  for  bringing  in  the  body  ; 
or  even  after  the  rule  for  bringing  it  in  has  expired.  The  sheriff,  however, 
is  not  entitled,  in  that  court,  to  the  benefit  of  a  render  made  after  the 
original  time  for  putting  in  bail  has  expired  :{k)  And  where  two  days' 
time  to  justify  is  given,  if  bail  are  not  justified  on  the  last  of  the  two  days, 
an  attachment  may  issue  on  that  day.(^) 

In  the  King's  Bench,  the  plaintiff  may  move  for  an  attachment  against 
the  sheriff,  at  any  time  after  the  expiration  of  the  rule  to  bring  in  the  body ; 
and  if  it  be  obtained  before  the  service  of  the  rule  for  the  allowance  of 
bail,  the  sheriff  is  fixed.  But  an  attachment  obtained  after  a  summons  to 
attend  before  a  judge,  for  payment  of  debt  and  costs,  which  Avas  not 
attended  by  the  plaintiff's  attorney,  is  irregular  -.{m)  And,  in  the  Common 
rieas,  though  the  rule  to  bring  in  the  body  has  expired,  yet  if 
the  defendant  justify  bail  *before  the  attachment  against  the  [  *ol2  ]  ' 

(a)  Parl-cr  .j-  ^yaU,  M.  26  Geo.  III.  K.  B,     Goodwin  v.  Montague,  E.  23  Geo.  III.  K.  B.  S.  P. 

(6)  4  Manic  &  Sel.  427.  (c)  B.arnes,  392. 

\dd)  I  Wils.  2G2.     R.  M.  6  Geo.  II.  (o),  K.  B.     2  Wms.  Saund.  5  Kd.  CI,  c. 

{ee)  2  Miirsh.  251. 

iff)  Append.  Chap.  XIII.  ^  29,  30.  And  for  the  form  of  the  rule  for  an  attachment  in  K. 
B.  seeu/.  ^  32,  and  in  C.  P.  id.  ^  33.  The  affidavit  upon  which  a  motion  for  an  attachment  is 
founded,  in  tlie  Common  Pleas,  must  not  merely  state,  that  the  officer  of  the  sheriff  was 
served  with  a  copy  of  the  rule  to  bring  in  the  body,  but  must  likewise  add,  that  the  original 
rule  was  at  the  same  time  shown  to  him.     1  New  llep.  C.  P.  121. 

(17)  2  Ken.  467.  (A)  8  xMoore,  162. 

(i)  RiX.  V.  Slt>'rifo/ Essex,  11.36  Geo.  III.  K.  B.,  cited  in  7  Durnf.  &  East,  52a.  8  Durnf.  & 
East,  4(J4.     1  Price,  338.     1  Chit.  Rep.  356. 

(/■-)  AiUc,  282. 

{l)  1  Chit.  Rep.  356 ;  and  see  2  Dowl.  &  Ryl.  225.  (w)  5  Barn.  &  Aid.  746. 


312 


OF  PROCEEDINGS 


sheriiF  Is  moved  for,  it  is  in  time  to  prevent  tlie  attachment. (a)  And 
the  former  court  will  never  allow  any  advantage  to  be  taken  of  the 
priority  of  motion  on  the  same  day  :(«)  Therefore,  if  bail  be  brought  up 
on  the  same  day  on  which  an  attachment  has  been  obtained  against  the 
sheriff,  the  court  will  permit  them  to  justify,  and  set  it  aside. (6)  But  the 
plaintiff,  in  such  case  is  entitled  to  the  costs  of  moving  for  the  attach- 
ment.(6')  So,  if  the  plaintiff  has  incurred  the  costs  of  instructing  counsel 
to  move  for  an  attachment,  before  the  defendant  gives  notice  of  his  render, 
though  he  render  before  it  is  actually  obtained,  the  Court  of  Common 
Pleas  will  order  the  costs  of  those  instructions  to  be  paid  by  the  defendant, 
upon  setting  aside  the  attachment. (t^)  When  a  rule  to  bring  in  the  body 
expires  on  the  last  day  of  term,  the  plaintiff  is  at  liberty,  at  the  rising  of 
the  court  on  that  day,  to  move  for  an  attachment  in  the  King's  Bench, (e) 
as  well  as  in  the  Common  Pleas, (/)  for  not  bringing  into  court  the  body 
of  the  defendant :  and  such  attachment  may  be  accordingly  issued  on  the 
following  day,  provided  bail  shall  not  then  be  perfected,  or  the  defendant 
rendered  in  their  discharge.  In  the  Exchequer,  as  in  the  Common  Pleas, 
though  the  rule  to  bring  in  the  body  has  expired,  yet  if  the  defendant 
justify  bail  before  the  attachment  against  the  sheriff'  is  moved  for,  it  is  in 
time  to  prevent  the  attachment. (^^)  But  where  bail  was  put  in  and  per- 
fected on  the  same  day,  but  after  an  attachment  had  been  granted  against 
the  sheriff  for  not  bringing  in  the  body,  that  court  refused  to  set  aside  the 
attachment  on  payment  of  costs,  except  on  the  terms  of  the  defendant 
pleading  issuably  instanter  ;  taking  short  notice  of  trial,  for  the  sittings 
after  term ;  giving  judgment  as  of  the  term,  and  letting  the  attachment 
stand  as  a  security  to  the  plaintiff,  in  the  event  of  his  obtaining  a 
verdict. (7z) 

In  counties  palatine,  the  attachment,  or  other  process  of  contempt,(2) 
issues  against  the  party  who  is  in  fault ;  as  against  the  chancellor  of  Lan- 
caste7',  the  bishop  of  Durham,['k)  or  the  chamberlain  of  Chester,  or  their 
officers,(Z)  if  they  refuse  to  make  a  mandate  to  the  sheriff,  or  to  return  the 
writ  into  court,  after  he  has  made  his  return  to  them ;  or  against  the 
sheriff,  if  he  will  not  return  his  mandate,  or  bring  in  the  body  of  the 
defendant,  pursuant  to  his  return  of  cepi  coiyus,  &c. ;  for  though  the 
sheriff  is  not  the  immediate  officer  of  the  court  above,  he  is  answerable  to 
it  for  contempts. 

It  was  formerly  usual,  in  the  King's  Bench,  to  proceed  against  the  late 
sheriff,  for  not  bringing  in  the  body,  by  distriyigasini)  where  the 
[  *ol3  ]   rule  to  *bring  in  the  body  had  not  expired  before  he  went  out  of 
office.     If  it  had,  the  contempt  being  then  complete,  an  attach- 
ment was  deemed  the  proper  process  -.{aa)  But  now,  by  rule  of  that  court,(65) 

(a)  1  H.  Blac.  9,  C.  P. ;  and  see  1  Bos.  &  Pul.  325.     9  East,  468.     8  Dowl.  &  Ryl.  137. 

(i)  2  Bos.  &  Pul.  38  ;  and  see  1  Bos.  &  Pul.  334. 

(c)  2Bos.  &  Pul.  38,  {a).     3  Bos.  &  Pul.  603.  [d)  1  Taunt.  656.     Ante,  305. 

{e)  11  East,  591.     1  Chit.  Rep.  356,  (a).  (/)  R.  T.  38  Geo.  III.  C.  P. 

{gg)  1  Price,  103,  338.  {h)  M'Clel.  83.     13  Price,  262,  S.  0. 

(i)  Flight  and  others  v.  Stanley,  M.  44  Geo.  III.  K.  B.  In  this  case,  a  distringas  issued 
against  the  bishop  of  Durham-i  being  a  peer,  instead  of  an  attachment,  for  not  returning 
a  writ. 

[k)  1  Sid.  92.  {I)  Andr.  191  ;  and  see  Doug.  749.     3  East,  131. 

(m)  Trye,  144,  5.  2  Lil.  P.  R.  510.  5  Bur.  2726.  Doug.  464.  For  the  form  of  a  dis- 
tringas against  the  constable  of  Dover  Castle,  being  a  peer,  to  compel  him  to  bring  in  the 
body,  see  Append.  Chap.  XIII.  ^  31. 

[aa)  Skeat  v.  Scrivens,  M.  31  Geo.  III.  K.  B. 

[bb)  R.  T.  31  Geo.  III.  K.  B.     4  Durnf.  &  East,  379  ;  and  see  2  Wms.  Saund.  5  Ed.  01,  e. 


A(3iAINST  THE  SHERIFF,  ETC.  313 

"  where  any  sheriff,  before  his  going  out  of  office,  shall  arrest  any  defendant, 
and  a  ce^^i  corpus  sliall  afterwards  be  returned,  he  shall  and  may,  Avithin 
the  time  allowed  by  law,  be  called  upon  to  bring  in  the  body,  by  a  rule 
for  that  purpose,  notwitlistanding  he  may  be  out  of  office,  before  sucli  rule 
shall  be  granted."  A  similar  practice  has  also  prevailed  in  the  Common 
Pleas  \[c)  And  in  that  court,  a  sheriff  who  is  ruled  on  the  lust  day  of 
term,  but  goes  out  of  office  before  the  next  term,  is  liable  to  an  attachment, 
for  not  bringing  in  the  body.((?) 

The  distringas  against  the  late  sheriff  was  a  judicial  writ,  issuing  out  of 
the  King's  Bench  office  by  hill,  or  filacer's  office  by  original,  and  directed 
to  his  successor;  commanding  him  to  distrain  the  late  sheriff,  by  all  his 
lands,  &c.,  so  that  he  might  have  the  defendant's  body  in  court,  to  answer 
the  plaintiff.(e)  This  writ  must  have  been  made  returnable  on  a  day  cer- 
tain or  general  return,  according  to  the  former  proceedings  ;(/)  and  must 
have  lain  four  days  exclusive  in  the  sheriff's  office  :  but  it  need  not  have 
been  left  there  before  the  return,  it  being  deemed  sufficient  to  leave  it  on 
the  return  day.((7)  Upon  the  first  distringas,  the  sheriff,  to  whom  it  was 
directed,  levied  issues  to  the  amount  of  forty  shillings,  which  the  plaintiff 
moved  to  increase ;  and  if  the  debt  were  small,  the  court  would  order  the 
whole  of  it  to  be  levied,  with  costs,  upon  an  alias  distringas;  but  otherwise 
the  plaintiff  moved  again  to  increase  the  issues,  and  sued  out  a.  pluries  dis- 
tringas, &c. :  and  when  issues  were  returned,  to  the  amount  of  the  debt 
and  costs,  the  plaintiff  moved  for  a  sale  of  them,  under  the  statute  10  Geo. 
III.  c.  50  §  3.(70 

By  the  statute  3  Geo.  I.  c.  15,  §  8,  it  is  enacted,  that  "  if  any  high  sheriff 
of  any  county  of  England  or  Wales,  shall  happen  to  die  before  the  expira- 
tion or  determination  of  his  year,  or  before  he  be  lawfully  superseded,  in 
such  case  the  under-sheriff,  or  deputy-sheriff  by  him  appointed,  shall  never- 
theless continue  in  his  office,  and  shall  execute  the  same,  and  all  things 
belonging  thereunto,  in  the  name  of  the  deceased  sheriff,  until  another  sheriff 
be  appointed  for  the  said  county  and  sworn,  in  manner  as  therein  is  directed  ; 
and  the  said  under-sheriff,  or  deputy-sheriff,  shall  be  answerable 
for  the  execution  of  the  said  office  in  all  *things,  and  to  all  respects  [  *314  ] 
intents  and  purposes  whatsoever,  during  such  interval,  as  the  high 
sheriff  so  deceased  would  by  law  have  been,  if  he  had  been  living  ;  and  the 
security  given  to  the  high  sheriff  so  deceased,  by  the  said  under-sheriff  and 
his  pledges,  shall  stand,  remain  and  be  a  security  to  the  king,  his  heirs  and 
successors,  and  to  all  persons  Avhatsoever,  for  such  under-sheriff's  due  per- 
formance of  his  office,  during  such  interval."  On  this  statute,  a  rule  for  an 
attachment  against  an  under-sheriff,  on  the  death  of  the  sheriff  during  his 
year,  is  not  absolute  in  the  first  instance.(a)  And  where  two  sheriffs  had 
been  ruled  to  bring  in  the  body,  and  then  one  of  them  died,  the  court  granted 
an  attachment  against  the  surviving  sheriff  only. (6)  Before  the  making  of 
the  statute  7  Geo.  IV.  c.  17,  the  office  of  sheriff  in  the  county  palatine  of 

(c)  Barnes,  102.  [d)  1  H.  Blac.  629. 

(e)  Brownl.  Brev.  Jud.  Thcs.  Brev.  and  Off.  Brev.  tit.  Distringas:  and  see  Append.  Chap. 
XIII.  I  23,  4. 

(/)  Trye,  144,  5.  {g)  Per  Cur.  E.  23  Geo.  III.  K.  B. 

(A)  5  Bur.  2726,  7.  The  mode  of  proceeding  by  distringas  ajjainst  the  late  sheriff,  on 
mesn«  process,  is  obsolete,  in  consequence  of  the  rule  and  practice  before  stated  ;  but  it  m.ay 
Btill,  it  seems,  be  used  against  the  bailiff  of  a  liberty,  for  not  bringing  in  the  body.  Ante, 
309. 

(a)  2  Chit.  Rep.  389.     *  (6)  TFj^ie  v.  Benwdl,  T.  25  Geo.  III.  K.  B. 


OJ4  OF  PROCEEDINGS 

Durlwm,  being  held  by  grant  of  the  bishop  of  Durham  for  the  time  being, 
durino-  the  pleasure  of  the  same  bishop,  became  vacant  upon  his  decease : 
But  now,  by  that  statute,(c)  "  no  grant  or  appointment  of  or  to  any  office 
or  employment,  concerning  the  administration  of  justice  in  the  said  county 
palatine,  shall  cease,  determine  or  bo  void,  by  reason  of  the  death  of  any 
such  bishop ;  but  every  such  grant  and  appointment  shall  continue  in  full 
force,  for  the  term  of  six  calendar  months  after  any  such  death,  unless  in 
the  mean  time  determined  by  any  succeeding  bishop  of  the  said  see." 

The  attachment{d)  is  a  criminal  process,  directed  to  the  coroner,  when 
it  issues  against  the  present  sheriff;  or  when  against  the  late  one,  to  his 
successor  :  and,  in  the  King's  Bench,  it  must  be  made  returnable  on  o.  gene- 
ral return,  though  the  original  process  was  at  a  day  certain.{e)  The 
attachment  may  be  moved  for  on  the  last  day  of  term;(/)  and  until  it  be 
granted,  the  proceedings,  in  the  King's  Bench,  are  on  the  plea  side  of  the 
court,  and  must  be  entitled  with  the  names  of  the  parties :  But  as  soon  as 
the  attachment  is  granted,  the  proceedings  are  on  the  croivn  side,  and 
from  that  time  the  king  is  to  be  named  as  the  prosecutor.(^)  If  the  coro- 
ner or  sheriff,  being  called  upon  by  rule,(7i7i)  neglect  to  return  the  attach- 
ment, he  maybe  attached  himself;  and  the  attachment  against  the  coroner 
should  be  directed  to  elisors,  named  by  the  master  in  the  King's  Bench, 
or  prothonotaries  in  the  Common  Pleas. (^)  If  cepi  corpora  be  returned  to 
the  attachment,  the  mode  of  proceeding,  for  obtaining  payment  of  the  debt 
and  costs,  is  by  moving  the  court  for  writs  of  habeas  corpora,{k)  to  bring 
up  the  bodies  of  the  sheriffs,  before  one  of  the  judges  at  chambers,  to 
answer  to  such  matters  as  shall  be  there  alleged  against  them ;(?)  which  is 

a  motion  of  course,  and  may  be  made  without  an  affidavit. (?) 
[  *315  ]  *When  the  sheriff"  is  fixed  for  a  contempt,  he  is  liable,  in  like 
manner  as  his  bail  upon  the  bail  bond,  to  the  payment  of  what  is 
really  due  to  the  plaintiff",  though  beyond  the  sum  sworn  to  and  costs,  to 
the  full  extent  of  the  penalty  of  the  bond  :(a)  And  he  cannot  relieve  him- 
self, by  payment  of  the  debt  sworn  to  and  indorsed  on  the  writ,  since  the 
statute  43  Geo.  III.  c.  46,  §  2,  having  neglected  to  take  the  money  at  the 
time  of  the  arrest,  as  directed  by  that  act ;  but  must  pay  the  whole  debt 
and  costs  :{h)  neither  can  he  be  relieved  on  the  ground  of  the  defendant's 
death,  after  the  contempt  was  incurred,  and  before  the  attachment  issued. (cc) 
But  he  is  not  liable  beyond  the  penalty  of  the  bond:(c?t^)  And  where  an 
attachment  issues  in  an  action  against  the  acceptor  of  a  bill  of  exchange, 
the  sheriff"  is  not  liable  thereon,  to  pay  the  costs  in  actions  against  the 
drawer  or  indorsers.(ee) 

If  a  party  has  a  right  to  enforce  payment  of  his  debt  against  the  sheriff",  he 

(c)  I  2.  {d)  Append.  Chap.  XIII.  ?  34,  &c. 

(e)  1  Str.  624.  (/)  1  Bar.  651.     Ante,  312. 

{g)  3  Durnf.  &  East,  133,  253.  7  Durnf.  &  East,  439,  528.  2  East,  182.  12  East,  165  ; 
and  see  5  Barn.  &  Ores.  389.     8  Dowl.  &  Rjl.  149,  S.  C.     2  Bos.  &  Pul.  517,  («},  C.  P. 

{hh)  Append.  Chap.  XIII.  I  37,  8. 

(2")2Blac.  Rep.  911,  1218.     Append.  Chap.  XIII.  ^  42. 

[k]  Anpend.  Chap.  XIII.  g  43,  4.  {I)  1  Chit.  Rep.  249. 

(a)  7  Durnf.  &  East,  370.     8  Durnf.  &  East,  28.     1  H.  Blac.  233,  543,  C.  P. 

(6)  9  East,  316.  (cc)  3  Durnf  &  East,  133. 

{dd)  3  East,  604  ;  and  see  Doug.  464.  Starke?/  v.  Poole,  E.  25  Geo.  III.  K.  B.  Ui/rev.  Bull, 
same  term,  K.  B.  See  also,  4  Durnf.  &  East,  433.  2  H.  Blac.  36,  547.  1  Taunt.  218.  3 
Stark.  Ni.  Pri.  168.  8  Moore,  27.  3  Bing.  56.  10  Moore  324,  S.  C.  1  Younge  &  J.  285, 
as  to  the  liability  of  the  sheriff,  in  an  action  on  the  case,  for  taking  insufHcieut  pledges  in 
replevin. 

(ec)  2  Barn.  &Ald.  192. 


AGAINST  THE  SHEllIFF,  ETC.  315 

must  pursue  It  within  a  reasonable  time,  and  not  lay  by  so  long  as  tliatby 
his  laches  the  sheriff  shall  be  deprived  of  his  remedy  over  against  the 
debtor :  Therefore,  where  the  rule  for  an  attachment  against  the  sheriff,  for 
not  bringing  in  the  body,  was  obtained  on  the  1  Itli  of  Fclruary,  which 
attachment  was  returnable  on  the  4th  of  May,  and  tlie  plaintiff  did  not  issue 
the  attachment  till  the  3d  of  Ma;/,  and  in  the  mean  time  the  defendant 
became  bankrupt  on  the  10th  of  March,  by  which  means  the  sheriff  lost  his 
opportunity  of  paying  the  debt,  and  proving  it  under  the  commission,  the 
attachment  was  set  aside  for  such  laches :(/)  And  on  a  similar  ground,  it  is 
holden  that  a  cor/novit,  for  payment  of  the  debt  and  costs  by  instalments, 
discharges  the  sheriff':  although  it  was  agreed  that  the  ri'jjht  of  moving  for 
an  attachment  a'j:ainsthim  should  remain  with  the  plaintiff'  as  a  security,  in 
case  any  of  the  instalments  should  not  be  paid.(f/)  But  where  the  phTintiff, 
at  the  desire  of  the  sheriff 's  officer,  forbore  to  enforce  an  attachment  in  the 
first  instance,  and  two  days  aftcrwai-ds  applied  to  the  sheriff  for  the  debt  and 
costs  ;  the  court  of  Common  Pleas  held,  tliat  the  sheriff  was  not  discharged 
by  the  indulgence  given  to  the  officer.(A)  So,  where  the  rule  to  bring  in 
the  body,  served  on  the  5th  Juli/,  expired  on  the  second  day  of  3Iichaebna8 
term,  two  judges  of  that  court  held  that  the  sheriff  was  not  discharged,  by 
the  plaintiff's  having,  on  the  7th  Juli/  preceding,  and  previously  to  the 
justification  of  bail,  consented  to  an  order  to  stay  proceedings,  on 
payment  of  debt  and  costs  within  a  month. (i)  *And  in  general,  [  *316  ] 
the  court  will  not  set  aside  an  attachment  against  the  sheriff  on  the 
ground  of  delay,  unless  there  have  been  gross  laches  on  the  part  of  the 
plaintiff,  to  the  prejudice  of  the  sheriff'.(fl!) 

If  the  proceedings  against  the  sheriff  are  irregular,  they  may  be  set 
aside,  with  costs  ;{b)  or,  if  regular,  may  be  set  aside  or  stayed  upon  terms, 
by  the  favour  and  indulgence  of  the  court,  in  order  to  let  in  a  trial  of  the 
merits,  for  the  benefit  of  the  sheriff",(c)  or  of  the  defendant,  or  his  bail.(f?) 
But,  in  the  King's  Bench,  by  a  late  rule  of  court,(e)  "  no  rule  can  be  drawn 
up  for  setting  aside  an  attachment  regularly  obtained  against  a  sheriff",  for 
not  bringing  in  the  body,  unless  the  application  for  such  rule,  if  made  on  the 
part  of  the  original  defendant,  be  grounded  upon  an  affidavit  of  merits ;( /f) 
or,  if  made  on  the  part  of  the  sheriff  or  bail,(^^)  or  any  officer  of  the 
8heriff,(_^)  be  grounded  upon  an  affidavit,  showing  that  such  application  is 
really  and  truly  made  on  the  part  of  the  sheriff  or  bail,  or  officer  of  the 
sheriff",  (as  the  case  may  be,)  at  his  or  their  own  expense,  and  for  his  or 
their  only  indemnity,  and  without  collusion  with  the  original  defendant;" 
which  rule  was  adopted,  in  a  late  case,  by  the  court  of  Common  Pleas.  1 
Moore  &  P.  177,  4  Bing.  427,  S.  C.     This  rule  applies  only  to  motions 

(/)  n  East,  467.     3  Bos.  &  Pul.  151.     1  Taunt.  Ill,  accord,  and  vitle  ante,  310. 

Ig)  1  Taunt.  159;  and  see  4  Taunt.  Ar^G.  5  Taunt.  319.  1  Marsh.  59,  S.  C.  Wightw. 
121.  4  Barn.  &  Aid.  91.  1  Dowl.  &  Ryl.  163.  9  Moore,  695.  2  Bing.  366,  S.  C.  Ante, 
295,  301,  305. 

(h)  1  Tiiunt.  489 ;  and  sec  1  Dowl.  &  Ryl.  388. 

(t)  Per  Beift,  Ch.  J.  k  Gftselee,S.  disnenticntibus  Park  <j-  Burroughs  Justices,  2  Bing.  366. 
But  on  a  subsequent  day,  it  appears.  Best,  C.  J.  said,  that  upon  payment  of  costs,  the  court 
would  consent  to  make  the  rule  absolute,  for  setting  aside  the  proceedings.     Id.  369. 

(a)  2  Chit.  Rep.  58.  {/,)  An/e,  '2^7.  310.  312,  315.  (c)  2  II.  Blac.  235. 

(d)  Goodwin  v.  Montague,  E.  23  Geo.  III.  K.  P..  1  Chit.  Rep.  237  ;  and  see  2  Wms.  Saund. 
5  Ed.  61,/. 

(c)R.  M.  59  Geo.  TTI.K.  B.  2  Barn.  &  Aid.  240.  1  Chit.  Rep.  348,  (rt),  572,  3,  f«).  2  Chit. 
Rep.  373,  4;  and  see  7  Diirnf.  &  East,  239.     3  Maule  &  Sel.  299.     1  New  Rep.  C.  P.  123. 

(/)  Append.  Chap.  XIII.  I  45.  {gg)  Id.  §  46. 


3](3  OF  PROCEEDINGS  AGAINST  THE  SHERIFF,  ETC. 

fi)r  scttin;^  aside  attacliments  regularly  obtained  :{Ji)  And  if  the  affidavit  be 
made  on  behalf  of  the  sheriff  or  bail,  it  must  comply  with  the  terms  of  the 
rule :  Therefore,  an  affidavit  which  did  not  state  that  the  application  was 
made  at  tlie  expense  of  the  bail,  and  for  their  o)ilij  indemnity,  was  deemed 
insufficient. (/)  The  affidavit  in  such  case  should  regularly  be  made  by  the 
defendant  himsclf.(/i;)  And,  the  court  will  not  set  aside  an  attachment 
against  the  sheriff,  for  not  bringing  in  the  body,  on  payment  of  costs,  upon 
an  affidavit  that  the  plaintiff  purposely  prevented  the  defendant's  being  re- 
taken after  a  rescue,  and  that  the  application  was  by  the  sheriff  himself, 
without  negativing  the  fact  of  his  having  an  indemnity. (^)  If  an  affidavit 
of  merits  however  be  produced,  it  is  not  necessary  to  state  on  whose  behalf 
the  motion  is  made.(??t) 

The  practice,  when  the  sheriff  has  been  fixed,  is  to  move  for  a  rule  to 
show  cause  why,  on  putting  in  bail,  the  proceedings  against  him  should 
not  be  set  aside ;  and  to  have  the  bail  ready  to  justify,  when  the  rule  is 
disposed  oL[n)  If  the  plaintiff  has  not  lost  a  trial,  the  court  will  set  aside 
the  proceedings,  upon  putting  in  and  perfecting  bail  above,  and 
[  *317  ]  payment  *of  costs  :[aa)  But  if  a  trial  has  been  lost,  the  court  will 
further  require,  that  the  attachment  shall  remain  in  the  office, 
and  stand  as  a  security  to  the  plaintiff  for  the  sum  recovered  :(J6)  And  it 
seems,  that  the  attachment  shall  stand  as  a  security,  as  well  as  the  bail 
bond,  where  a  trial  has  been  lost,  although  the  defendant  has  been  sur- 
rendered in  discharge  of  his  bail.(cc)  On  setting  aside  a  regular  attach- 
ment, on  payment  of  costs,  the  question  whether  or  not  the  attachment 
shall  stand  as  a  security,  depending  upon  the  fact  whether  a  trial  has 
been  lost,  it  is  for  the  plaintiff,  who  seeks  to  qualify  the  rule,  to  show  by 
his  affidavit  the  necessary  facts,  such  as  the  day  of  the  delivery  of  the 
declaration,  &c.  which  may  entitle  him  so  to  do:((i)  And  where  the  court 
ordered  an  attachment  against  the  sheriff,  of  which  he  had  regular  notice, 
to  stand  as  a  security  to  the  plaintiff  for  the  debt  and  costs,  and  the  sheriff, 
in  the  next  term,  applied  to  discharge  that  part  of  the  rule  which  related 
to  the  attachment  standing  as  a  security,  urging  that  he  was  no  party  to 
the  rule,  the  court  held  the  application  to  be  too  late.(e) 

When  the  sheriff  has  been  guilty  of  a  breach  of  duty,  in  discharging  the 
defendant  out  of  custody,  without  the  plaintiff's  assent,  upon  his  oivn  un- 
dertaking to  appear  and  put  in  bail,  or  by  taking  money  from  him,  instead 
of  a  bail  bond,  the  court  will  not  assist  the  sheriff,  by  staying  the  proceed- 
ings in  an  action  for  an  escape,  or  by  setting  aside  the  attachment  upon 
an  affidavit  of  merits,  and  payment  of  costs ;(/)  and  it  is  now  decided, 

(h)  ]  Chit.  Rep.  446.     Ante,  302.  (?)  1  Chit.  Rep,  347. 

(k)  Id.  722.  {I)  1  Barn.  &  Aid.  192. 

(m)  1  Chit.  Rep.  572  ;  and  see  id.  720,  21.     Ante,  302. 

[n]  1  Bos.  &  Pul.  334,/)e;-  Buller,  J. 

[aa)  4  Durnf.  &  East,  352.     2  H.  Blac.  235.     Ante,  303. 

(bb)  Gravett  v.  Williams,  T.  15  Geo.  III.  K.  B.,  cited  in  4  Durnf.  &  East,  352.  1  Chit.  Rep. 
237,  270,  357. 

(cc)  1  Chit.  Rep.  270,  (a).  Nias  v.  Gray,  M.  57  Geo.  III.  K.  B.  there  cited,  contra :  and  see 
8  Dowl.  &  Ryl.  137. 

[d)  5  Taunt.  606.  1  Chit.  Rep.  271,  in  notis.  Ante,  304.  And  for  what  is  meant  by  losing 
a  trial,  see  id.  ibid. 

(e)  1  Chit.  Rep.  180. 

(  f)  7  Duruf.  &  East,  109,  239.  2  Barn.  &  Aid.  354.  1  Chit.  Rep.  68,  S.  C. ;  and  see  1 
Chit.  Rep.  567,  (a),  721.  2  Chit.  Rep.  93.  4  Dowl.  &  Ryl.  155.  1  Bos.  &  Pul.  225.  1 
Taunt.  119.  6  Taunt.  554.  2  Marsh.  261,  S.  C.  6  Moore,  111.  7  Moore,  552.  1  Bing. 
156,  S.  C;  but  see  1  Price,  103.     5  Barn.  &  Cres.  244,  contra.     Ante,  236,  282,  3. 


OF  PROCEEDINGS  IN  ACTIONS,  ETC.  3 17 

that  lie  cannot,  after  paying  tlie  debt  and  costs,  maintain  an  action  against 
the  defendant,  for  money  paid.((/)  But,  if  he  has  taken  a  bail  bond,  he 
may  resort  to  the  defendant  or  his  bail,  by  putting  it  in  suit  against  thera: 
though,  in  general,  the  money  is  paid  by  the  oiRcer,  on  issuing  the  attach- 
ment, and  he  brings  the  action  on  the  bail  bond,  in  the  sheriff's  name.(/t) 
In  an  action  on  a  bail  bond,  if  the  issue  depend  on  the  date  of  the  appear- 
ance, the  court  of  Common  Pleas,  upon  an  application  by  the  plaintiff, 
will  order  the  day  of  the  appearance,  to  be  entered  in  the  filacer's  book; 
although,  before  tlie  application  to  the  court,  issue  has  been  joined  on  the  plea 
of  coiiijtendt  ad  diem ;(/)  And  where  bail  above  were  put  in  but  not  justified, 
and  the  sheriff  being  fixed,  brought  an  action  on  the  bail  bond, 
*to  which  the  defendant  pleaded  comperuit  ad  diem,  that  court,  [  *318  ] 
on  motion  by  the  sheriff,  ordered  the  recognizance  of  bail  in  the 
original  action  to  be  taken  off  the  file;  though  the  defendant  alleged,  that 
the  sheriff  was  fixed  through  his  own  negligence:  for  that  should  have 
been  the  subject  of  a  motion  to  stay  proceedings  on  the  bail  bond.(rt) 


^CHAPTER    XIV.  [  *319  ] 

Of  the  Proceedings  in  Actions,  hy  and  against  Attorneys  and  Offi- 
cers, in  the  Courts  of  King's  Bench,  Common  Pleas  and  Exche- 
quer ;  and  of  the  Recovery  and  Taxation  of  their  Costs. 

The  proceedings  in  actions  against  defendants  when  at  large,  and  mode  of 
bringing  thera  into  court,  in  ordinary  cases,  having  already  been  considered ; 
I  shall  next  proceed  to  show  whatever  is  jyeculiar  to  the  proceedings  in 
actions  by  and  against  attorneys,  \i\\o  are  supposed  to  be  already  in  court, 
and  against  prisoners  in  the  actual  custody  of  the  sheriff,  &c.  or  of  the 
marshal  of  the  King's  Bench,  or  ivarden  of  the  Fleet  prison. 

Attorneys,  we  have  seen,  may  sue  by  attachment  of  privilege,  and  must 
be  sued  by  hill.{aa)[^k\     In  the  King's  Bench,  the  attachment  of  privilege, 

(«7)  8  East,  171. 

(/()  2  Wins.  Saund.  61,/.     And  see  Petersd.  Part  I.  Chap.  XV.  as  to  the  right  of  the  bail 
agaiii.st  their  iirincipal,  and  against  each  other;  and  a  surety's  right  against  the  bail, 
(t)  1  Taunt.  23.     Ante,  236  ;  and  see  9  Price,  406. 
{a)  6  Taunt.  167.     1  Marsh.  520,  S.  C. 
{aa)  Ante,  80. 

[a]  By  the  common  law,  attorneys  are  privileged  from  arrest  on  mesne  process,  and  are 
entitled  to  be  proceeded  against  by  bill.  Scott  v.  Ahtync,  9  Johns.  216.  And  this  privilege 
continues,  unless  it  be  taken  away  by  rule,  though  the  attorney  do  not  show  that  he  has 
acted  as  such  within  a  year.  Ogden  v.  Hughes,  2  South.  718.  If  an  attorney  or  coun- 
sellor be  taken  on  a  ca.  sa.  during  his  attendance  in  court,  having  business  to  transact  there, 
he  may  be  discharged  on  motion  and  affidavit,  &c.  Secor  v.  Bell,  18  Johns.  52.  A  judge, 
at  the  circuit,  may  also  discharge  him,  under  the  like  circumstances.  lb.  So  also  a  coun- 
sellor of  the  Sii]>rcme  Court  is  privileged  from  arrest  during  the  sitting  of  the  court,  though 
not  in  actual  attendance.  Sperr;/  v.  WUlnrd,  1  Wend.  ?>'2.  Commonwealth  v.  Ronald,  4  Call, 
97.  But  a  counsellor  is  not  privileged  from  arrest  while  attending  a  master,  examiner, 
or  judi^e,  out  of  court.  Cole  v.  M-Lelhm,  4  Hill,  53  ;  nor  while  he  remains  at  home,  though 
such  arrest  prevents  his  contemplated  attendance  at  court.     Corey  v.  Ru.i.'ell,  4  Wend.  204. 

Where  an  attorney  on  being  arrested,  does  not  mention  his  privilege,  but  requests  the 
officer  to  obtain  a  bail  bond,  and  executes  it,  he  waives  his  privilege.     Cole  v.  M-Lellan,  4 


319  OF  PROCEEDINGS  IN  ACTIONS,  BY 

at  the  suit  of  an  attorney,  is  in  nature  of  a  latitat  :{h)  therefore,  in  reply- 
ing it  to  a  plea  of  the  statute  of  limitations,  the  plaintiif  must  set  forth  the 
continuances. (c')  And  an  attachment  of  privilege  is  not  a  continuance  of 
a  bill  of  lliddlesex,  so  as  to  avoid  the  statute  of  limitations.(cZ)  In  the 
King's  Bench,  it  is  a  rule,  that  "  every  attorney  shall  leave  a  prsecipe{e) 
Avith  the  signer  of  the  writs,  containing  the  defendant's  names,  not  exceed- 
four  in  each  writ,with  the  return,  and  day  of  signing  such  writ,  and  the 
agent's  or  attorney's  name  who  sued  out  the  same:  and  that  all  such 
prsecipes  shall  be  entered  on  the  roll,  where  the  jy^'secijjes  of  latitats,  and 
all  other  writs  issuing  out  of  this  court,  are  entered ;  and  the  officer  that 
signs  the  writs  in  this  court,  shall  not  sign  such  attachment,  till  a  prsecipe 
be  left  with  him  for  that  purpose. "(/)  But  when  an  attorney  sues  by  at- 
tachment of  privilege,  his  name  need  not  be  indorsed  on  the  writ :  for  the 
2  Geo.  11.  c.  23,  §  22,  which  requires  the  name  of  the  plaintiff's  attorney 
to  be  indorsed  on  the  writ,  only  extends  to  cases  where  the  attorney  sues 
for  another  person. (^)  And  an  attorney,  plaintiff,  may  sue  by  com- 
mon process,  and  indorse  his  own  name  on  the  copy  as  the 
[  *320  ]  *attorney,  and  may  afterwards  declare  by  another  attorney.(aa) 
If  an  attorney  sue  by  attachment  of  privilege,  for  words  spoken 
in  Wales,  and  the  venue  be  laid  there,  and  the  plaintiff  do  not  recover  a 
verdict  for  ten  pounds,  it  may  be  suggested  on  the  roll,  that  the  defend- 
ant was  resident  in  Wales,  &c.  in  order  to  entitle  the  defendant  to  enter  a 
nonsuit,  under  the  statute  13  Geo.  III.  c.  51,  §  1,  2:{bb)  but  if  the  venue 
had  been  laid  in  Middlesex,  it  might  have  made  a  difference. (55) 

In  the  Common  Pleas,  an  attachment  of  privilege  is  in  nature  of  an 
original  writ;(c?c?)  and  must  have  fifteen  days  between  the  teste  and  re- 
turn.(c^tf)  This  writ  should  regularly  be  returnable  on  a  day  certain,  in  full 
term  :[ee)  But  where  it  was  made  returnable  after  the  essoin  day,  and 
before  the  quarto  die  post,  the  court  allowed  it  to  be  amended,  on  payment 
of  costs. (ee)  And,  being  in  nature  of  an  original  writ,  it  is  sufficient, 
when  replied  to  a  plea  of  the  statute  of  limitations,  to  show  the  teste  of  it, 
without  the  continuances.(^)     It  is  a  rule  in  this  Q,ovii%{gg)  that  "  no 

(b)  1  Show,  367;  and  see  Append.  Chap.  XIV.  ^  2,4,6. 

(c)  Garth.  144.    1  Show.  366,  7.    2  Salk.  430,  S.  C. 

(d)  3  Durnf.  &  East,  662  ;  but  see  Willes,  259,  (a).  And  for  the  entry  of  an  attachment 
of  privilege  on  the  roll,  to  save  the  statute,  in  K.  B.,  see  Append.  Chap.  XIV.  §  7. 

(e)  Append.  Chap.  XIV.  §  1,  3. 

(/)  R.  H.  20  Geo.  II.  K.  B. ;  and  see  1  Ken.  394. 

(g)  4  Durnf.  &  East,  275.  {aa)  7  Durnf.  &  East,  35. 

[bb)  6  Durnf.  &  East,  500.  This  determination  was  before  the  stat.  5  Geo.  IV.  c.  106, 
§  19,  20,  by  which  the  above  act  of  parliament  was  repealed,  and  other  provisions  substi- 
tuted in  lieu  thereof. 

{cc)  Append.  Chap.  XIV.  §  10.  {dd)  Barnes,  410.  Cas.  Pr.  C.  P.  149,  S.  C. 

(ec)  6  Moore,  113.    3  Brod.  &  Bing.  25,  S.  C.  (/}  1  Wils.  167. 

{gg)  R.  T.  9  W.  III.  C.  P. ;  and  see  R.  T.  29  Car.  II.  reg.  3,  C.  P. 


Hill,  59.  The  sheriff  cannot  take  notice  of  his  privilege,  nor  can  he  discharge  him  from  his 
custody  under  process  of  the  court,  on  his  producing  a  writ  of  privilege  ;  and  if  he  do  so, 
he  is  liable,  as  for  an  escape  for  the  amount  of  the  debt,  and  interest,  and  also  for  the 
poundage,  if  the  plaintiff  has  paid  any.  Secor  v.  Bell,  18  Johns.  52.  Sperry  v.  Willard,  1 
Wend.  33. 

Since  the  passing  of  the  statute  of  New  York,  of  April,  1813,  all  ofBcers  of  the  Supreme 
Court,  courts  of  Common  Pleas  and  Chancery,  are  liable  (except  during  the  actual  sitting 
of  such  courts,)  to  arrest  on  mesne  process,  and  may  be  held  to  bail  like  other  persons. 
Secor  V.  Bell,  18  Johns.  52.  And  they  now  stand  on  the  same  ground  as  other  persons, 
with  respect  to  costs  ;  and  if  sued  by  bill  during  term,  and  less  than  fifty  dollars  is  reco- 
vered, they  are  not  liable  for  costs.     Foster  v.  Gurnseg,  13  Johns.  465. 


AND  AGAINST  ATTORNEYS.  320 

attorney  shall  sue  out  an  attachment  of  privilege  at  his  own  suit,  nor  shall 
the  same  be  sealed,  unless  it  be  first  stamped  or  signed  by  the  clerk  of  the 
warrants  or  his  deputy,  for  which  no  fee  is  to  be  paid,  to  the  intent  to  show  that 
such  person  is  an  attorney  of  this  court  duly  entered  and  continued  on  the 
roll  of  attorneys."  And  there  is  another  rule,(/t)  similar  to  that  in  the  King's 
Bench,  that  "every  attorney,  who  shall  sue  out  a  writ  of  privilege  against 
any  defendant,  shall  leave  a  prsecipe{i)  at  the  prothonotaries'  oilice,  with 
the  defendant's  names,  not  exceeding  four  in  the  whole,  and  the  return 
day  thereto,  and  the  day  of  signing  the  same,  together  with  the  agent's  or 
attorney's  name  who  sues  out  the  same ;  and  that  such  pnecipe  shall  be 
entered  by  the  prothonotaries  upon  a  remembrance  roll,  in  their  respective 
offices,  to  be  kept  for  that  purpose,  without  fee  or  reward;  and  that  the 
prothonotaries  do  not  sign  any  attachment  of  privilege,  without  such 
pnt'cipe  be  left  in  the  office,  at  the  time  of  signing  thereof."  Tlie  practice 
therefore,  as  governed  by  these  rules,  is  to  take  the  ptrvccipe  and  writ  to 
the  prothonotaries'  clerk,  who  will  sign  the  yvv'it  gratis,  keping  the prascipe  ; 
after  which  the  writ  is  marked  by  the  clerk  of  the  warrants,  and  then 
sealed. 

An  attorney  was  formerly  permitted  to  hold  the  defendant  to  special 
bail,  upon  an  attachment  of  privilege,  for  fees  or  disbursements,  however 
trifling.(/c)  But  now,  since  the  statutes  for  preventing  frivolous  and  vex- 
atious arrests,  the  defendant  cannot  be  arrested  and  holden  to  special  bail, 
upon  an  attachment  of  privilege,  or  any  other  process,  unless  the  cause  of 
action  amount  to  tiventy  pounds  or  upwards.  Where  it  is  under 
that  amount,  *the  defendant  must  be  served  with  a  copy  of  the  [  *321  ] 
process,  and  notice  to  appear,  as  in  other  cases. 

In  the  King's  Bench,  the  time  allowed  for  declaring  upon  an  attach- 
ment of  privilege,  is  the  same  as  upon  a  bill  of  3Iiddlescx  or  latitat,  kc. 
And  if  an  attoi'ney  sue  out  an  attachment  of  privilege,  and  deliver  or  file 
his  declaration, (a)  and  give  notice  thereof,  four  days  exclusive  before  the 
end  of  the  term  wherein  the  attachment  is  returnable,  the  defendant  must 
plead  as  of  that  term ;  the  plaintiff  having  entered  a  rule  to  plead,  and 
demanded  a  plea:  but  if  he  do  not  declare  within  that  time,  the  defendant 
may  imparl  to  the  next  term;  and  if  he  do  not  declare  before  the  essoin 
day,  the  defendant  will  have  an  imparlance  to  the  term  following. (6)  In 
the  Common  Pleas,  if  the  attachment  of  privilege  require  only  a  common 
appearance,  it  must  be  entered,  on  a  proper  pra'cipe,{c)  with  the  prothon- 
otaries; and  if  it  require  special  bail,  the  clerk  of  the  dockets  prepares  the 
bail-piece,(cZ)  and  attends  the  court  or  a  judge  when  the  recognizance  is 
entered  into,  as  the  filacer  docs  in  other  cases,  and  the  bail  justify,  or 
fresh  bail  is  added,  in  the  same  manner. (t?)  In  the  Exchequer,  the  declar- 
ation, at  the  suit  of  an  attorney  or  side  clerk,  begins  by  stating  the  char- 
acter in  which  he  sues;  and  omits  the  quo  minus  clause,  in  the  conclu- 
sion. (/) 

In  proceeding  against  attorneys  and  officers  of  the  court,  the  bill,  which 

(h)  Pv.  n.  11  Geo.  II.  reff.  2,  C.  P.  2  Blac.  Rep.  919. 
(i)  Append.  Chap.  XIV.  §  9. 

(A)  R.  M.  1654,  ?  9,K.  B.  R.  M.  1654,  ?  12,  C.  P.  Gilb.  K.  B.  246.   Gill).  C.  P.  36. 
la)  For  the  beginning  of  a  declaration,  at  the  suit  of  an  attorney,  in  K.  B.,  sec  Append. 
Chap.  XIV.  ?  8.    In  C.  P.  «V/.  §  14. 

(6)  R.  M.  5  Ann.  rey.  3,  a.  K.  B.  Gilb.  K.  B.  346. 

(c)  Append.  Chap.  XIV.  ^  12.  {d)  Id.  ?  13. 

(e)  Imp.  C.  P.  7  Ed,  541.  (/)  Append.  Chap.  XIV.  ^  17. 


321  OF  PROCEEDINGS  IN  ACTIONS,  BY 

is  the  foundation  of  the  action,  is  a  complaint  in  writing,  describing  the  de- 
fendant as  h am o^  jj7'es ent  in  court  ;{g)  and  generally  concludes  with  ?ip7'ai/er 
of  relief,  though  the  declaration  upon  the  bill  is  not  demurrable  for  want 
of  it. (hh)  In  the  King's  Bench,  the  bill  against  an  attorney  could  formerly 
have  been  filed  in  term  time  only,  sedente  curia,  and  not  in  vacation. (2) 
But  now  it  may  be  filed  in  vacation,  as  well  as  in  term  time  :{k)  And 
where  the  cause  of  action  arises  after  term,  there  should  be  a  special 
memorandum,  stating  the  day  of  bringing  the  bill  into  the  office  of  the 
clerk  of  the  declarations.(?)  If  a  bill  however,  filed  against  an  attorney 
of  that  court  in  vacation,  be  entitled  of  the  preceding  term,  and  the 
defendant  plead  the  statute  of  limitations,  he  may  show  when  it  was  in 
fact  filed. (7?i)  The  filing  of  a  bill  is  considered  as  the  commencement  of  an 
action  against  an  attorney  without  notice  being  served  upon  him. [a]  And 
where,  in  an  action  against  an  attorney  for  goods  sold,  the  plaintiff  proved 

that  he  filed  his  bill  at  a  certain  time  in  the  forenoon,  and  the 
[  *322  ]   defendant  gave  in  *evidence  a  receipt  for  the  sum  demanded, 

dated  the  same  day;  the  judge  at  7iisi  prius,  held  that  this  was 
no  answer  to  the  action,  without  proof  that  the  payment  was  made  before 
the  filing  of  the  bill. (a)  Where  the  bill  against  an  attorney  was  entitled 
of  the  term  generally,  being  before  the  cause  of  action  accrued,  the  court 
of  King's  Bench  on  motion  allowed  it  to  be  amended,  after  a  Avrit  of 
error  brought,  by  inserting  a  special  memorandum  of  the  day  of  filing 
the  same  ;  and  gave  the  plaintiff  leave  to  carry  in  a  new  roll,  agreeably 
to  the  amended  bill,  and  to  make  the  transcript  conformable  to  such  new 
roll,  on  payment  of  costs. (5)  But  such  an  amendment  cannot  be  made, 
after  the  proceedings  are  entered  on  record,  without  leave  of  the  court  :(c) 
and  in  one  case,  they  gave  the  defendant  leave  to  plead  de  novo,  upon 
terms,  (c?) 

In  the  King's  Bench,  it  is  usual  in  practice  to  file  the  bill  with  the  clerk 
of  the  declarations, (g)  in  the  King's  Bench  office ;  and  to  deliver  a  copy 
of  it,  to  the  defendant,  or  his  known  agent,(/)   with  notice  thereon  to 

(g)  1  Wms.  Saund.  5  Ed.  28,  c.  202.  2  Wms.  Saund.  5  Ed.  415,6;  and  see  Append.  Chap. 
XIV.  I  18,  19. 

(M)  Andr.  247. 

{i)  2  Salk.  544.    12  Mod.  163.    Gilb.  K.  B.  346. 

{k)  Doug.  313.  Law,  administrator,  v.  Wheat,  M.  23  Geo.  III.K.  B.    5  Durnf.  &  East,  173 ; 
and  see  8  Durnf.  &  East,  643,  4.    2  H.  Blac.  608.   1  Taunt.  126.    2  Wras.  Saund.  5  Ed.  1,  (1). 

{I)  5  Durnf.  &  East,  325  ;  and  see  7  Baru.  &  Ores.  406.    Append.  Chap.  XIV.  §  21. 

(m)  Peake's  Cas.  Ni.  Pri.  3  Ed.  275.  (a)  3  Campb.  331. 

[b)  7  Durnf.  &  East,  474. 

(c)  Id.  ibid.  1  Chit.  Rep.  336;  but  see  1  Maule  &  Sel.  232.  2  Barn.  &  Aid.  472.  1  Chit. 
Rep.  277,  S.  C.    10  Moore,  194.    2  Bing.  469.    1  M'Clel.  &  Y.  202,  S.  C. 

{d)  1  Chit.  Rep.  45. 

(e)  This  officer  is  appointed  to  receive  and  make  an  entry  of  declarations  and  bills  filed 
in  this  court ;  to  deliver  out  the  former,  and  to  file  and  keep  the  latter  ;  for  which  be  is  en- 
titled to  a  fee  of  two  shillings  jaer  term,  from  every  attorney.  R.  M.  15  Car.  II.  reg.  3.  E.  E. 
19  Car.  II.  K.  B. 

(/)  Imp.  K.  B.  10  Ed.  501.  But  such  agent  is  not  bound  to  accept  it.  Fer  Cur.  E.  39, 
Geo.  III.  K.  B. 

[a]  Whether  an  attorney  is  sued  by  writ  or  by  bill  in  New  York,  he  was  formerly  equally 
entitled  to  personal  service  of  the  declaration,  and  notices  of  all  subsequent  proceedings. 
Bridgeport  Bank  v.  Sherwood,  16  Johns.  43.  New  York  State  Bank  v.  Wood,  10  Wend.  594. 
Broivn  v.  Childs,  17  Johns.  1.  Lawrence  v.  Warner,  1  Cow.  198.  Aliter,  when  a  counsellor 
is  sued.  Sperry  v.  Willard,  1  Wend.  32.  But  if  an  attorney  be  sued  with  another  person, 
he  is  not  entitled  to  be  served  with  the  papers  in  the  cause,  if  he  do  not  give  notice  of  de- 
fending.    Chenango  Bank  v.  Root,  4  Cow.  126.     Stetvart  v.  Salter,  1  Halst.  Dig.  p.  97,  2d  Ed. 


AND  AGAINST  ATTORNEYS.  322 

plead  in /our  (lajs;(</)  ■which  notice  has  been  deemed  sufficient,  though  he 
reside  more  than  ticenty  miles  from  London  :{h)  Or,  if  the  defendant's 
name  and  place  of  abode  be  not  entered  in  the  master's  book  kept  for  that 
purpose,  a  copy  of  the  bill  may  be  stuck  up  in  the  office;  although  his 
name  and  place  of  abode  bo  entered  in  the  book  containing  a  list  of  cer- 
tificates.(w)  And  if  the  bill  be  filed,  and  a  copy  thereof  deli\-ered, /our 
days  exclusive  before  the  end  of  the  term,  including  >Vu/<(^;^,[a]  the  de- 
fendant must  plead  as  of  that  term ;  thephiiniinft'  having  entered  a  rule  to 
plead,  and  demanded  a  plea:  but  if  the  bill  be  not  filed,  and  copy  delivered, 
"within  that  time,  the  defendant  is  entitled  to  an  imparlance  :[kk)  "and 
where  the  defendant  was  served  with  a  copy  of  the  bill,  before  the  h'\\\ 
itself  was  filed,  the  proceedings  were  set  aside  for  irregularity. (//)  The 
bill  and  copy  were  required,  by  the  general  stamp  acts,(//«;/j)  to  be  written 
in  the  usual  and  accustomed  manner :  and  therefore,  the  copy  of  a  bill 
filed  against  an  attorney,  partly  printed  and  partly  written,  on  one  sheet 
of  paper,  stamped  with  a/our-penny  stamp,  which  contained  several  printed 
counts,  two  of  them  being  struck  out,  and  was  otherwise  obliterated,  and 
exceeded  seventeen  common  law  folios,  was  held  to  be  irregular;  and  it 
appearing  that  the  bill  was  framed  in  the  same  manner,  with 
the  same  obliterations,  *the  court  set  aside  the  proceedings  alto-  [*o23] 
gether.(a)  The  rest  of  the  proceedings,  by  and  against  attor- 
neys of  the  King's  Bench,  are  the  same  as  in  other  cases. 

In  the  Common  Pleas,  a  bill  may  it  seems  be  filed  against  an  attorney, 
to  avoid  the  statute  of  limitations,  in  vacation,  as  well  as  in  term  time  :{b) 
And  after  it  is  filed,  if  the  defendant  do  not,  on  being  publicly  called  in 
court,  appear  thereto,  judgment  is  given  against  him,  that  he  stand  fore- 
judged from  exercising  his  office  of  attorney,  for  his  contumacy :((?)  upon 
which  he  is  struck  oif  the  roll  of  attorneys ;  and  being  no  longer  entitled 
to  his  privilege,  he  may  be  proceeded  against  as  a  common  person.  For- 
merly, no  bill  could  have  been  filed  against  an  attorney  or  officer  of  the 
Common  Pleas,  to  be  called  in  court,  in  order  to  a  forejudger,  until  the 
bill  was  actually  entered  upon  record,  and  a  number  roll  put  thereon. (c?) 
This  rule  however  appears  to  be  disused  :(e)  and  at  present,  the  practice 
is  to  prepare  a  bill(/)  against  the  defendant,  which  is  delivered  to  one  of 
the  criers,  by  whom  the  defendant  is  to  be  thrice  called  in  open  court,  with 
an  intimation  that  he  will  be  forcjudgctl,  if  he  do  not  appear:  after  which, 
the  bill  is  entered  with  the  prothonotaries  :  and  a  rule  being  given  thereon 
by  the  secondaries,  for  the  defendant's  appearance,  the  bill  should  be  filed 
in  the  prothonotaries'  office  till  the  rule  is  out,  and  afterwards  with  the 
custos  brevium.{gg)  And  it  is  a  rule,  that  "  where  any  bill  shall  be  filed 
against  an  attorney  of  this  court,  no  forejudger  shall  be  entered  against 

{g)  Append.  Chap.  XIV.  §  20.  (A)  5  Durnf.  &  East,  369. 

((■(•)  V.  Hough,  one,  cjc.  T.  42  Geo.  III.  K.  B. 

(A-A-)  R.  M.  5  Ann.  reg.  3  a.  K.  B.  Gilb.  K.  B.  34G. 
(11)  Constahle  v.  Edwards,  E.  40  Geo.  III.  K.  B. 

{mm)  48  Geo.  III.  c.  149.  Sched.  Part  II.  55  Geo.  III.  c.  184.  Sched.  Part  II.  in  princ.ipio. 
But  the  stamp  dutiea  imposed  by  these  acts,  were  repealed  by  the  statute  5  Geo.  IV.  c.  41. 
(a)  1  Maule  &  8cl.  709  ;  and  see  12  East,  294.    1  Dowl.  k  Ryl.  5G2. 
{b)  Ante,  27.  6  Taunt.  347,  8,  355.    2  .Marsh.  50,  52,  56,  S.  C. 

(c)  For  the  form  of  the  entry  of  this  judgment,  see  Append.  Chap.  XIV.  ^  27. 

(d)  R.  T.  21  Car.  II.  reg.  2,  C.  P.  {()  Imp.  C.  P.  7  Ed.  647. 
(/)  Append.  Chap.  XIV.  §  24.                            (gg)  Gas.  Pr.  C.  P.  4. 

[a]  See  Anong.,  2  Hill's  N.  Y.  Rep.  376,  note  by  reporter.  Woolrich  on  Legal  Time.  p.  66, 
71,89. 


323  PROCEEDINGS  IN  ACTIONS  AGAINST  ATTORNEYS. 

Iiim  upon  such  bill,  for  want  of  appearance,  if  the  action  be  laid  in  Lon- 
don or  dlidcUesex,  and  such  attorney  reside  within  twenty  miles  of  Lon- 
don, xxwiW  four  days  after  notice  in  writing,  of  filing  such  bill,  be  given  to 
such  attorney  or  his  agent,  or  left  at  his  usual  place  of  abode,  and  a  rule 
given  for  such  appearance ;  and  if  such  attorney  reside  above  twenty 
miles  from  London,  or  the  action  be  laid  in  any  other  county  than  Lon- 
don or  Middlesex,  then  no  forejudger  shall  be  entered,  till  eiglit  days  after 
such  notice  shall  be  given,  in  such  manner  as  aforesaid,  and  a  rule  to 
appear  as  aforesaid :  the  said  days  to  be  exclusive  of  the  day  of  giving 
such  notice."(/i)  The  notice  of  filing  the  bill  ought  to  be  given /ortr  days 
exclusive  before  the  end  of  the  term,  or  the  defendant  will  be  entitled  to 
an  imparlance,  and  need  not  plead  till  the  first  four  days  of  the  next 
term. (2)  If  the  defendant  appear,  on  being  called  in  court,  he  enters  his 
appearance  with  the  prothonotaries ;  and  the  proceedings  against  him  are 

the  same  as  in  common  cases. (A;) 
[  *324  ]      *If  the  defendant  do  not  appear  in  due  time,  the  proceedings  are 

entered  on  a  roll,  which  is  obtained  from  the  prothonotaries,  and 
their  clerk  will  sign  the  judgment  of  forejudger,  on  an  incipitur  he'mg  first 
made  thereon.  The  roll  is  then  taken  to  the  clerk  of  the  warrants,  who  will 
strike  the  defendant  off  the  roll  of  attorneys  ;  after  which  he  may  be  pro- 
ceeded against  by  the  plaintiff,  or  any  one  else,(a)  as  a  common  person  : 
and  he  cannot  be  restored,  unless  he  pay  the  debt  and  costs  :  But  Avhen  he 
has  made  satisfaction  to  the  plaintiff,  he  may  obtain  a  rule  of  court  in 
term  time,  or  judge's  summons  in  vacation,  to  show  cause  why  he  should 
not  be  restored ;  and  if  it  appear  that  the  plaintiff  has  been  satisfied,  a 
rule  or  order  will  be  made,  for  the  clerk  of  the  warrants  to  restore  him. (5) 
It  was  formerly  holden,  that  a  bill  could  not  be  filed  in  vacation,  against 
the  warden  of  the  Fleet,  for  an  escape.(c)  But  now,  by  the  statute  59 
Geo.  III.  c.  64,  "  it  shall  and  may  be  lawful  for  any  person  or  persons, 
having  cause  of  action  against  the  warden  of  the  said  prison,  for  or  in 
respect  of  the  escape  of  any  person  or  persons  in  his  custody,  from  and 
out  of  the  said  custody,  to  commence  his  or  their  action  against  the  said 
warden,  by  filing  his  or  their  bill  against  him,  at  any  time  in  vacation,  in 
the  ofiice  of  the  prothonotaries  of  the  court  of  Common  Pleas,  or  with  the 
clerk  or  deputy  clerk  of  the  pleas  in  the  office  of  Pleas  in  the  court  of 
Exchequer,  for  or  in  respect  of  such  escape,  and  to  entitle  such  bill  as  of 
the  preceding  term  ;  a  copy  of  which  bill  so  filed  shall,  within  twenty-four 
hours  after  the  filing  thereof,  unless  a  Sunday  or  public  holyday  intervene, 
and  in  that  case  on  the  next  day  after  such  Sunday  or  public  holyday,  be 
delivered  to  the  said  warden  or  his  deputy,  or  to  the  turnkey  or  porter  of 
the  said  prison ;  and  the  said  warden  shall  appear  and  plead  to  the  said 
bill,  within  the  first  four  days  of  the  following  term  ;  otherwise  it  shall  be 
lawful  for  such  person  or  persons,  having  such  cause  of  action  as  afore- 
said, to  sign  judgment  against  him  in  such  action.     And,  for  the  better 

(/()  R.  H.  11  Geo.  II.  reg.  3,  C.  P.  And  for  the /orm  of  notice  of  a  bill  filed  against  an  at- 
torney see  N.  T.  13  Geo.  II.  3,  C.  P.    Append.  Chap.  XIV.  §  26. 

[i)  Morgan  v.  Beits,  one,  <j-c.  T.  33  Geo.  III.  G.  P.  Imp.  C.  P.  7  Ed.  546. 

{!()  For  the  beginning  of  a  declaration  against  an  attorney,  after  appearance,  by  hill  in 
C.  P.  see  Append.  Chap.  XIV.  I  28. 

(a)  Barnes,  43.  {b)  Imp.  C.  P.  6  Ed.  523. 

(c)  6  Taunt.  347,  352.  2  Marsh.  49,  54,  S.  C. ;  and  see  the  preamble  to  the  statute  59 
Geo.  III.  c.  64.  For  the  beginning  of  a  bill  against  the  warden  of  the  Fleet,  see  Append. 
Chap.  XIV.  I  25. 


OF  DELIVERING  AN  ATTORNEY'S  BILL.  324 

ascertaining  as  well  the  time  of  filing  such  bill,  as  of  delivering  such  copy 
thereof  as  aforesaid,  the  proper  officer  of  the  court  in  which  such  bill  shafl 
be  filed,  or  his  lawful  deputy,  shall,  at  the  time  of  filing  the  same,  indorse 
thereon  a  memorandum  of  the  time  of  filing  such  bill ;  and  the  said  warden 
or  his  deputy,  or  the  turnkey  or  porter  of  the  said  })rison,  shall,  at  the 
time  of  receiving  such  copy  of  the  said  bill,  indorse  ujion  such  copy  a 
memorandum  of  the  time  of  receiving  the  same."  In  the  construction  of 
this  statute  it  has  been  holden,  that  the  interval  between  the  essoin  day 
and  first  day  of  the  court's  actually  sitting,  must  be  taken  as  part  of 
the  term :  and  therefore,  a  bill  may  be  filed  against  the  warden  of  the 
Fleet  for  an  escape,  on  the  day  after  the  essoin  day,  entitled  as  of  the 
term  generally ;  and  if  the  plaintifl'  give  a  rule  to  plead  on  the  first  day 
the  court  sits,  he  will  substantially  comply  with  the  requisition 
of  the  statute  8  &  9  W.  III.  c.  27,  *§  12,  provided  he  do  not  [  *.325  ] 
sign  judgment  within  eleven  days  after  the  filing  of  the  bill.(«a) 

In  the  Exchequer,  the  bill  against  an  attorney,  or  side  clerk,  befrins  by 
stating  the  character  in  which  he  is  sued  :{hh)  and  the  proceedings  thereon 
are  similar  to  those  against  an  attorney  of  the  King's  Jiench. 


As  between  attorney  and  client,  the  remedy  given  by  law  to  an  attorney, 
for  recovery  of  his  bill'  of  costs,  in  an  action  of  assumjjsit.\A~\    This  action 


{aa)  4  Moore,  425.    2  Brod.  &  Bing.  51,  S.  C. 
{bb)  Append.  Chap.  XIV.  g  29,  30. 


[a]  An  attorney  or  solicitor  is  entitled  to  have  allowed  to  him,  for  his  professional  ser- 
vices, what  he  reasonably  deserves  to  have,  with  a  proper  reference  to  the  nature  of  the 
business  performed  by  him  for  his  client,  and  his  own  standing  in  his  profession  for  learn- 
ing and  skill,  whereby  the  value  of  his  services  is  enhanced  to  his  client.  Vilas  v.  Downer, 
6  Washb.  419.  Webb  y.  Browning,  14  Missouri,  353.  For  the  purpose  of  aiding  in  deter- 
mining this,  it  is  proper  to  receive  evidence  as  to  the  prices  usually  charged  and  received 
for  similar  services  by  other  persons  of  the  same  profession,  in  the  same  vicinity,  and  prac- 
tising in  the  same  court.  lb.  And  it  has  been  held,  that  when  an  attorney,  or  solicitor,  is 
employed  by  a  person  who  has  lull  knowledge  of  his  rate. of  charges,  without  stipulating 
as  to  price,  it  may  perhaps  be  fairly  inferred,  that  he  expected  to  pay  at  such  rates,  and  be 
equivalent  to  an  express  contract  to  that  effect.  But  when  the  client  is  informed,  during 
the  pendency  of  a  suit,  of  the  prices  which  his  attorney  is  charging  for  his  services,  his 
neglect  to  express  dissatisfaction  with  the  prices,  or  to  dismiss  the  attorney  from  his  em- 
ployment, cannot  be  held  as  an  acquiescence  in  those  prices,  or  as  binding  him  to  pay  after 
the  same  rate  for  future  services  in  the  same  suit.  lb.  But  he  cannot  recover  more  than 
he  has  agreed  to  receive  by  proof  that  his  services  were  worth  more.  Coopwood  v.  Wallace, 
12  Ala.  790. 

On  the  other  band,  where  a  contract  between  an  attorney  and  his  client,  by  which  the 
attorney  received  a  certain  portion  of  a  tract  of  land  in  litigation,  as  his  fee  for  conduct- 
ing the  suit,  had  been  acted  upon  by  the  parlies  for  nearly  twenty  years,  the  court  refused 
to  disturb  it,  although,  by  reason  of  the  enhanced  value  of  the  land,  it  appeared  unreason- 
able. Smith  v.  Thompson,  7  B.  Mon.  305.  He  cannot,  however,  recover  for  his  services  with- 
out proving  a  retainer;  and  proof  of  the  actual  performance  of  the  services  is  not  sufficient 
where  there  is  no  proof  of  a  knowledge  or  recognition  of  the  services  by  the  client.  Burg- 
hart  V.  Gardner,  3  Barb.  .Sup.  Ct.  R.  64.  The  law  implies  a  promise  on  the  part  of  the 
client,  to  pay  his  attorney,  for  his  services,  the  statute  rate  of  compensation.  The  burden 
of  proving  that  the  attorney  undertook  to  perform  the  services  for  a  less  rate,  or  without 
charge,  rests  upon  the  client,  and  such  an  agreement  should  be  made  out  by  evidence  equal 
to  a  positive  stipulation.  Bradg  v.  Mayor,  S;c.,  of  Xcw  York,  1  tfandf.  Sup.  Ct.  K.  509. 

In  Pennsylvania  and  Delaware,  an  action  can  be  supported  by  an  attorney,  or  counsellor 
at  law,  against  his  client,  for  advice  and  services  in  the  trial  of  a  cause,  over  and  above  the 
attorney's  fees  allowed  by  act  of  assembly.  Breckcnridgc  v.  JfFarlanc,  Addis.  49.  Gray  v. 
Brnckenridgc,  2  Pennsyl.  75,  overruling  Mooney  t.  Loyd,  5  S.  A;  R.  412,  S.  P.  Foster  v.  Jack, 
4  Watts,  384.    Stevens  v   Monges,  1  Ilarring.  127. 


325 


OF  TAXING  AN 


lies  for  business  done  in  other  courts,  as  well  as  in  the  court  of  which  the 
plaintift"  is  an  attornej.(c)  But  an  attorney  cannot  recover  a  charge  for 
conducting  a  suit,  in  -which  the  party  charged  has  not  had  the  benefit  of 

(c)  Cro.  Car.  159,  60. 

The  remarks  of  Gibson^  Ch.  J.,  in  Foster  v.  Jack,  page  337,  deserve  consideration  : — 
"  Thougli  dissatisfied  with  the  decision  of  Mooney  v.  Loyd,  on  principle  and  for  its  conse- 
quences, I  did  not  dissent.     On  principle,  because  I  was  unable  to  comprehend  why  a 
■valuable  consideration  might  not  raise  an  implied  promise  as  well  as  support  an  express 
one;  and  for  its  consequences,  because  I  felt  assured  it  would  be  found  entirely  incom- 
patible with  the  business  and  necessities  of  both  counsel  and  client  here.     As  anticipated, 
it  was  received  with  almost  universal  disapprobation  by  the  profession,  not  from  the  im- 
pulse of  interest,  but  a  conviction  of  its  artificial  structure  and  practical  injustice.     Its 
principle,  if  it  can  be  said  to  have  one,  had  its  origin  in  the  Roman  law,  when  the  practice 
of  forensic  oratory  was  so  elevated  as  to  be  fancifully  thought  to  be  incapable  of  stooping 
to  mercenary  considerations  without  debasement.     And  the  dignity  of  the  robe,  instead  of 
any  principle  of  policy,  furnishes  all  the  argument  that  can  be  brought  to  the  support  of  it 
at  the  present  day,  for  it  is  hard  to  imagine  a  principle  of  policy,  that  would  forbid  com- 
pensation for  services  in  a  profession  which  is  now  as  purely  a  calling  as  any  mechanical 
art.     The  English  courts  adopted  it  practically  and  professedly  on  the  foundation  of  dig- 
nity.    They  studiously  restricted  it  to  advocates,  properly  so  called ;  for  actions  for  attor- 
ney's fees  are  of  daily  occurrence.     But  the  decision  in  Mooney  v.  Loi/d  descended  a  step 
lower,  and,  abandoning  the  ground  of  dignity  altogether,  gave  the  rule  a  much  wider  sweep 
than  it  has  in  England.     Though  it  might  appear  from  the  report  that  the  cause  of  action 
was  compensation  for  services  in  the  trial  of  a  cause,  it  is  an  undeniable  truth  that  all  pre- 
paratory services  were  included,  though  these  are  such  as  are  rendered  in  England  by  the 
class  called  attorneys  in  the  strictest  sense.     No  discriminatiop  was  made  in  the  expres- 
sions of  the  court,  the  rule  of  the  decision  being  predicated  of  professional  services  gene- 
rally.    It  is  known  to  every  member  of  the  bar,  how  narrow  is  the  compass  of  his  duties 
as  an  advocate.    His  most  constant  and  efl'ective  efforts  are  made  in  the  preparatory  stages; 
and  his  agency  in  directing  the  process  of  execution  is  an  invaluable  one.     In  fact,  a  sub- 
stantial, if  not  a  preponderating  portion  of  professional  business  never  finds  its  way  to  the 
ear  of  the  judges  at  all ;  and  there  are  many  gentlemen  in  honorable  and  lucrative  prac- 
tice who  are  seldom  heard  at  the  bar.     They  practice  strictly  as  attorneys,  and  to  apply 
the  rule  of  the  Roman  law  to  them,  would  be  a  perversion  of  it.    Yet  Mooney  v.  Loyd  would 
have  done  it;  and  the  decision  in  Gray  v.  Brackenridge,  by  which  it  was  overruled,  seems 
to  be  as  deeply  seated  in  justice  as  it  is  in  legal  analogy.     It  was  held  in  the  latter,  that 
an  attorney's  action  may  be  maintained  on  an  implied  assumpsit,  and  without  regard  to  the 
quality  of  the  services.     The  English  rule  was  abolished  by  it  without  distinction  between 
advocates  and  attorneys,  as  its  analogue  had  been  abolished  by  universal  practice  and  with- 
out distinction  between  physicians  and  apothecaries.     The  subject  was  not  susceptible  of 
distinction ;  nor  would  there  be  the  same  propriety  in  it  where  the  habits  and  circumstances 
of  ihe  client  require  indulgenbe,  as  there  is  in  England,  where  the  barrister's  fee  is  handed 
to  him  with  his  brief." 

"  Whether  it  was  originally  wise,"  says  Judge  A'awf,  "to  invest  the  due  compensation  of 
counsel  with  the  incidents  of  a  legal  demand,  and  whether  the  dignity,  and  with  it  the  use- 
fulness of  the  profession,  might  not  have  been  better  secured  by  leaving  its  members  to  a 
merely  honorary  recourse,  has  divided  the  opinions  of  intelligent  and  honest  thinkers.  But 
the  question  is  now,  and  has  long  been,  a  merely  speculative  one  in  Pennsylvania  ;  and  our 
courts  have  either  to  remodel  the  law,  or  to  enforce  it  as  it  stands,  by  admitting  the  lawyer 
to  sue  for  his  quantum  meruit. 

"So,  too,  of  the  practice,  which  has  obtained  to  a  considerable  extent,  of  stipulating  be- 
forehand for  professional  fees,  contingent  on  the  result  of  the  litigation.  It  is  not  a  prac- 
tice to  be  generally  commended,  exposing  honorable  men  not  unfrequently  to  misapprehen- 
sion and  illiberal  remark,  and  giving  the  apparent  sanction  of  their  example  to  conduct, 
which  they  would  be  among  the  foremost  to  reprehend.  Such  contracts  may  sometimes  be 
necessary  in  a  community  such  as  that  of  Pennsylvania  has  been,  and  perhaps  as  it  is  yet; 
and  where  they  have  been  made  in  abundant  good  faith — uberimmd  fide — without  suppres- 
sion or  reserve  of  fact,  or  exaggeration  of  apprehended  difficulties,  or  undue  influence  ia 
any  sort  or  degree;  and  where  the  compensation  bargained  for  is  absolutely  just  and  fair, 
so  that  the  transaction  is  characterized  throughout  by  'all  good  fidelity  to  the  client;'  the 
court  will  hold  such  contracts  to  be  valid.  But  it  is  unnecessary  to  say,  that  such  con- 
tracts, as  they,  can  scarcely  be  excepted  from  the  general  rule,  which  denounces  as  suspi- 
cious the  dealings  of  fiduciaries  with  those  under  their  protection,  must  undergo  the  most 
exact  and  jealous  scrutiny  before  they  can  expect  the  judicial  ratification."  Ex  parte  PUtt, 
2  Wall.  Junr.  479. 


ATTORNEY'S  BILL.  305 

the  attorney's  judgment  and  superintcndance.((?)  It  is  also  said,  that  an 
attorney  ought  not  to  prosecute  an  action,  to  be  paid  in  gross ;  for  that 
will  be  champerty  :((■)  And  an  undertaking  liy  a  tliird  person,  to  pay  an 
attorney  the  further  expenses  of  business  alreaily  commenced,  must  be  in 
writing,  by  the  statute  of  frauds. (/) 

By  the  statute  3  Jac.  I.  c.  7,  §  1,  "all  attorneys  and  solicitors  shall 
give  a  true  bill  unto  their  masters  or  clients,  or  their  assigns,  of  all  charges 
concerning  the  suits  which  they  have  for  them,  subscribed  with  their  hands 
and  names,  before  such  time  as  they,  or  any  of  them,  shall  cliarge  their 
clients  with  any  the  same  fees  or  charges."  Upon  this  statute  it  was  a 
good  plea,  to  an  action  brought  by  an  attorney  for  his  fees,  that  no  bill 
had  been  delivered  to  the  defendant  ;(</)  or  the  statute  miglit  have  been 
given  in  evidence,  on  non  assu7npsit.[h)  But  if  an  attorney  had  delivered 
his  bill  to  the  defendant,  after  the  arrest  and  before  the  bill  filed,  it  was 
well  enough :(/')  and  this  statute  did  not  extend  to  attorneys  in  inferior 
courts,  but  only  to  those  in  the  courts  at  Wcst7ni)ister.{k)  It  should  also 
seem,  that  an  attorney's  bill  could  not  have  been  taxed,  unless  an  action 
was  depending  thereon, (^j  nor  without  bringing  the  amount  of  it  into 
court. (m) 

To  remedy  these  manifold  inconveniences,  it  was  enacted  by  the  statute 
2  Geo.  II.  c.  23,  §  23,  (made  perpetual  by  the  80  Geo.  II.  c.  19,  §  75,) 
that  "  no  attorney  of  his  majesty's  court  of  King's  Bench,  Common  Pleas, 
or  Exchequer,  or  duchy  oi  Lancaster^  or  of  any  of  his  majesty's  courts  of 
Great  Sessions  in  Wales,  or  any  of  the  courts  of  the  counties  palatine  of 
Chester,  Lancaster,  and  Durham,  or  any  other  court  of  record  in  that  part 
of  Great  Britain  called  England,  wherein  attorneys  have  been 
*accustomably  admitted  and  sworn ;  nor  any  solicitor  in  any  [  *326  ] 
court  of  equity,  either  in  his  majesty's  high  court  of  Chancery, 
court  of  equity  in  the  Exchequer  chamber,  court  of  the  duchy  chamber  of 
Lancaster,  at  Westminster,  or  courts  of  the  counties  palatine  of  Chester, 
Lancaster,  or  Durham,  or  of  the  Great  Sessions  in  Wales,  or  in  any  other 
inferior  court  of  equity,  in  that  part  of  Great  Bi'itain  called  England, 
shall  commence  or  maintain  any  action  or  suit,  for  the  recovery  of  any 
fees,  charges,  or  disbursements,  at  law  or  in  E(|uity,  until  the  expiration 
of  one  month  or  more,  after  such  attorney  or  solicitor  respectively  shall 
have  delivered  unto  the  party  or  parties  to  be  charged  therewith,  or  left 
for  him,  her  or  them,  at  his,  her  or  their  dwelling-house  or  last  place  of 
abode,  a  bill  of  such  fees,  charges  and  disbursements,(a)  written  in  a  com- 
mon legible  hand,  and  in  the  English  tongue,  except  law  terms  and  names 
of  writs,  and  in  words  at  length,  except  times  and  sums ;  which  bill  shall 

{d)  I  Bing.  13.  7  Moore,  237,  S.  C;  and  see  3  Campb.  451.  3  Stark.  Ni.  Pri.  75.  1  Man.  k 
Ryl.  228.  7  Barn.  &  Cres.  419.  1  Alan.  &  Ryl.  238,  S.  C.  7  Barn.  &  Cres.  441.  1  .^[an.  k  Ryl. 
241,  S.  C. 

(e)  Com.  Dig.  tit.  Atfornn/,  (B.  14,)  Hob.  117  ;  and  see  2  Atk.  298.  4  Bro.  Cban.  Cas.  350. 
18.  Ves.  313,  in  Chan.    2  Marsh.  273. 

(/)  1  Stark.  Ni.  Pri.  270. 

(y)  3  Keb.  118,  514.  T.  Raym.  245.  3  Salk.  19,  S.  C.  ;  but  see  Carth.  57.  1  Show.  48. 
Comb.  12G,  S.  C. 

(h)  1  Show.  338.    Bui.  Ni.  Pri.  145. 

(/)  1  Lil.  P.  R.  145  ;  but  see  1  Sir.  633.    Cas.  Pr.  C.  P.  27,  S.  C. 

(A)  Ciirth.  147.     1  Show.  06.    1  Salk.  86,  S.  C. 

(I)  1  Salk.  332  ;  but  see  2    Chit.  Rep.  155. 

(m)  2  Ves.  451,  2. 

{a)  Barnes,  243.     Id.  L23. 

Vol.  l— 21 


326 


OF  TAXING  AN" 


be  subscribed  with  the  proper  hand  of  such  attorney  or  solicitor  respec- 
tively. 

"  And,  upon  application  of  the  party  or  parties  chargeable  by  such  bill, 
or  of  any  other  person  in  that  behalf  authorized,  unto  the  Lord  High 
Chancellor  or  Master  of  the  Rolls,  or  unto  any  of  the  courts  aforesaid,  or 
unto  a  judge  or  baron  of  any  of  the  said  courts  respectively,  in  which 
the  business  contained  in  such  bill,  or  the  greatest  part  thereof  in  amount 
or  value,  shall  have  been  transacted  ;{b)  and  upon  the  submission  of  the 
said  party  or  parties,  or  such  other  person  authorized  as  aforesaid,  to  pay 
the  whole  sum  that  upon  taxation  of  the  said  bill  shall  appear  to  be  due  to 
the  said  attorney  or  solicitor  respectively :  it  shall  and  may  be  lawful  for 
the  said  Lord  High  Chancellor,  Master  of  the  Rolls,  or  any  of  the  courts 
aforesaid,  or  for  any  judge  or  baron  of  any  of  the  said  courts  respectively, 
and  they  are  thereby  required,  to  refer  the  said  bill,  and  the  said  attor- 
ney's or  solicitor's  demand  thereupon,  although  no  action  or  suit  shall  be 
then  depending  in  such  court  touching  the  same,  to  be  taxed  and  settled 
by  the  proper  officer  of  such  court,  without  any  money  being  brought  into 
the  said  court  for  that  purpose :  and  if  the  said  attorney  or  solicitor,  or 
the  party  or  parties  chargeable  by  such  bill  respectively,  having  due  notice, 
shall  refuse  or  neglect  to  attend  such  taxation,  the  said  officer  may  pro- 
ceed to  tax  the  said  bill  ex  parte :  pending  which  reference  and  taxation, 
no  action  shall  be  commenced  or  prosecuted,  touching  the  said  demand. 

"  And,  upon  the  taxation  and  settlement  of  such  bill  and  demand,  the 
said  party  or  parties  shall  forthwith  pay  to  the  said  attorney  or  solicitor 
respectively,  or  to  any  person  by  him  authorized  to  receive  the  same,  that 
shall  be  present  at  the  said  taxation,  or  otherwise  unto  such  other  person 
or  persons,  or  in  such  manner,  as  the  respective  courts  aforesaid  shall 
direct,  the  whole  sum  that  shall  be  found  to  be  or  remain  due  thereon ; 
which  payment  shall  be  a  full  discharge  of  the  said  bill  and  demand  : 
[  *327  ]  and  in  default  thereof,  the  said  party  or  parties  shall  be  liable  *to 
attachment  or  process  of  contempt,  or  to  such  other  proceedings, 
at  the  election  of  the  said  attorney  or  solicitor,  as  such  party  or  parties 
was  or  were  before  liable  unto. 

"And  if,  upon  the  said  taxation  and  settlement,  it  shall  be  found  that 
such  attorney  or  solicitor  shall  happen  to  have  been  overpaid,  then  the  said 
attorney  or  solicitor  respectively  shall  forthwith  refund  and  pay  unto  the 
party  or  parties  entitled  thereunto,  or  to  any  person  by  him,  her  or  them 
authorized  to  receive  the  same,  if  present  at  the  settling  thereof,  or  other- 
wise unto  such  other  person  or  persons,  or  in  such  manner,  as  the  respec- 
tive courts  aforesaid  shall  direct,  all  such  money  as  the  said  officer  shall 
certify  to  have  been  so  overpaid ;  and  in  default  thereof,  the  said  attorney 
or  solicitor  respectively  shall,  in  like  manner,  be  liable  to  an  attachment 
or  process  of  contempt,  or  to  such  other  proceedings,  at  the  election  of 
the  said  party  or  parties,  as  he  would  have  been  subject  unto,  if  that  act 
had  not  been  made. 

"  And  the  said  respective  courts  are  thereby  authorized  to  award  the 
costs  of  such  taxations  to  be  paid  by  the  parties,  according  to  the  event  of 
the  taxation  of  the  bill,  that  is  to  say,  if  the  bill  taxed  be  less,  by  a  sixth 
part,  than  the  bill  delivered,  then  the  attorney  or  solicitor  is  to  pay  the 
costs  of  the  taxation ;  but  if  it  shall  not  be  less,  the  court,  in  their  discre- 
et) 1  Salk.  89  ;  but  see  2  Barnard,  K.  B.  182.    Barnes,  122. 


ATTORNEY'S  BILL.  327 

tion,  shall  charge  the  attorney  or  client,  in  regard  to  the  reasonableness 
or  unreasonableness  of  such  bill." 

The  provisions  of  the  above  statute  are  confined  to  actions  for  the 
recovery  of  fees,  charges  or  disbursements,  at  law  or  in  eciuity.  But 
though  the  statute  applies  only  to  particular  cases,  and  to  bills  of  a  par- 
ticular description,  yet  the  court  it  seems  still  retains,  and  has  always 
exercised,  a  right,  as  at  common  law,  to  direct  the  taxation  of  other  bills 
of  costs;  and  such  is  said  to  be  the  constant  pr:ictice.((^)  In  making  out 
an  attorney's  bill  on  this  statute,  it  is  not  sufficient  to  charge  the  costs  of 
an  action  brought  by  the  attorney  for  his  client,  at  one  sum  in  the  aggre- 
gate, although  the  costs  in  that  action  had  been  taxed  at  that  sum,  as 
between  party  and  party  :(i)  But  the  plaintiff  may  nevertheless  recover 
the  residue  of  his  bill,  as  to  which  the  provisions  of  the  statute  had  been 
complied  with.(6') 

It  having  been  doubted,  whether  an  attorney's  bill  could  be  delivered 
with  ahbrcviaiions{d)  it  was  enacted  by  the  statute  12  Geo.  II.  c.  13,(g) 
that  it  shall  and  may  be  lawful  to  and  for  every  attorney,  clerk  in  court, 
and  solicitor,  to  write  his  bill  of  fees,  charges  and  disbursements,  with  such 
abbreviations  as  are  now  commonly  used  in  the  English  language  ;  any 
thing  in  any  former  law  to  the  contrary  notwithstanding."  On  this  statute 
it  has  been  holden,  that  an  attorney  may  deliver  a  bill  of  costs,  containing 
•such  abbreviations  of  English  words,  as  are  usual  and  intelligible.(/) 
And  by  §  G,  "the  said  act  of  the  second  year  of  George  the  Second  for  the 
better  regulation  of  attorneys  and  solicitors,  or  any  clause,  matter 
or  *thing  therein  contained,  shall  not  extend  to  any  bill  of  fees,  [  *328  ] 
charges  and  disbursements,  due  from  any  attorney  or  solicitor, 
to  any  other  attorney  or  solicitor,  or  clerk  in  court ;  but  every  such 
attorney,  solicitor,  or  clerk  in  court,  may  use  such  remedies,  for  the 
recovery  of  his  fees,  charges  and  disbursements,  against  such  other  attor- 
ney or  solicitor,  as  he  might  have  done  before  the  making  of  the  said 
act." 

If  the  whole  bill  be  for  convey ancing ^{aa)  it  cannot  be  taxed.  But  if  any 
part  of  an  attorney's  bill,  which  has  been  delivered,  be  for  business  done  in 
court,  the  bill  must  be  delivered  a  month  before  the  action  is  brought  other- 
wise the  plaintiff  cannot  recover. (6^)  And  a  warrant  of  attorncy,{ec)  or 
dedimus  potestatem,{dd)  charged  in  an  attorney's  bill,  is  a  suilicicnt  item  to 
enable  the  court  to  refer  the  bill  for  taxation  ;  though,  with  this  exception, 
it  be  entirely  for  conveyancing.  So,  where  one  of  the  charges  was  for 
drawing  and  engrossing  an  affidavit  of  debt,  in  order  to  hold  a  party  to  bail, 
which  appeared  to  have  been  sworn,  the  court  of  King's  Bench  held  this  to 
be  a  charge  for  business  done  in  court,  which  made  the  bill  taxable. (ct')  And 
a  charge  in  an  attorney's  bill,  for  attending  at  a  lock-up  house,  and  obtain- 
ing the  defendant's  release,  and  filling  up  a  bail  bond,  will  render  the  bill 

(a)  2  Chit.  Rep.  155  ;  and  see  9  Price,  349.     Fast,  320,  30. 

h)  2  Car.  &  P.  69.    1  Ry.  &  Mo.  280,  S.  C. 

(c)  1  Ky.  &  Mo.  280.  (d)  Pr.  Reg.  37. 

(e)  §  5.  (/)  4  Taunt.  193. 

(aa)'M.  12  Geo.  TL  Anon.  K.B.  Barnes,  41,2,  C.  P.;  and  see  BuL  Ni.  Pri.  145. 

(bb)  6  Durnf.  &  East,  645  ;  and  see  Pealie's  Cas.  M.  Pri.  138.  3  E.sp.  Rep.  149.  2  Bos.  & 
Pul.343.   1  Camp.  437.  3  Bro.  Chan.  Cas.  233.   1  Rv.  &  Mo.  284.  2  Car.  &  P.  71,  2,  S.  C. 

(cc)  4  Campb.  68.  2  Stark.  Ni.  Pri.  538.  3  Barn.  &  Cres.  157.  4  DowL  &  Ryi.  736,  S.  C. 
accord ;  but  see  3  Barn.  &  Aid.  488,  9,  where  the  propriety  of  this  dctisioa  was  questioned. 

(dd)  1  New  Rep.  C.  P.  266.  4  Campb.  69,  n. 

[ec)  6  Durnf.  &  East,  645. 


328  0^  TAXING  AN 

subject  to  taxation. (^)  But  a  charge  for  preparing  an  affidavit  of  the 
petitioning  creditor's  debt  and  bond  to  the  Chancellor,  in  order  to  obtain  a 
commission  of  bankruptcy,  was  holden  not  to  be  a  taxable  item  within  the 
statute,  as  being  a  charge  at  law  or  in  equity,  the  affidavit  not  having  been 
sworn,  nor  a  commission  issued, (</)  So,  charges  for  searching  to  see  whe- 
ther satisfaction  of  a  judgment  was  entered,  or  whether  an  issue  was  en- 
tered and  docketed,  will  not  constitute  taxable  items  in  an  attorney's  bill, 
so  as  to  make  it  necessary  to  deliver  it  signed  before  action  brought.(7«) 
And  where  an  attorney  had  paid  money,  in  consequence  of  his  undertaking 
to  pay  the  debt  and  costs,  this  was  holden  not  to  be  a  disbursement,  by 
him  as  an  attorney,  within  the  meaning  of  the  statute. (i) 

It  has  been  made  a  question,  whether  an  attorney  may  recover  for 
charges  or  disbursements  not  taxable  when  part  of  his  demand  is  for  busi- 
ness done  in  court ;  and  the  distinction  that  has  been  taken  is,  that  he 
may,  where  he  has  delivered  no  bill  at  all;(^)  but  that  where  he  has  deli- 
vered a  bill  irregularly,  he  cannot. (/)  And  accordingly,  in  a  modern  case,(w) 
an  attorney  not  having  delivered  any  bill  to  his  client  before 
[  *329  ]  action  brought,  *but  having  afterwards  delivered  a  bill  of  par- 
ticulars under  a  judge's  order,  was  held  to  be  entitled  to  recover 
charges  for  money  paid  for  his  client's  use,  having  no  reference  to  his 
business  of  an  attorney,  although  other  items  in  the  bill  of  particulars  were 
taxable.  An  attorney  having  delivered  two  separate  bills,  one  of  which 
was  for  fees  and  disbursements  in  causes,  and  the  other  for  making  con- 
veyances, a  rule  was  made,  in  the  King's  Bench,  for  taxing  both. (a)  And 
so,  where  it  was  moved  that  the  master  might  be  directed  to  tax  those 
articles  in  an  attorney's  bill  which  related  to  conveyancing  and  parlia- 
mentary business,  the  rest  being  for  management  of  causes  in  the  court  of 
King's  Bench,  Lord  Mansfield  said,  "there  was  no  doubt  but  the  master 
might  tax  the  whole ;  that  he  recollected  a  case,  where  the  fees  paid  to  a 
proctor,  for  business  done  in  the  ecclesiastical  court,  made  part  of  the 
bill ;  and  it  was  determined,  that  as  the  whole  bill  had  been  referred  to 
the  master,  he  might  tax  that  part  of  it.  "(5)  So,  where  an  attorney  had 
delivered  three  several  bills,  one  for  business  done  as  an  attorney,  another 
as  agent,  and  a  third  for  fees  due  to  him  as  steward  of  a  manor,  for  admit- 
tances and  holding  courts,  the  court  held,  that  the  taxable  items  in  the 
bill,  for  business  done  as  an  attorney,  would  draw  after  them  the  fees  due 
to  him  as  steward  of  the  manor,  so  as  to  subject  all  the  bills  to  taxa- 
tion.(c) 

The  court  of  King's  Bench  will  refer  an  attorney's  bill  to  be  taxed, 
though  all  the  business  was  done  at  the  Quarter  Sessions,((i)  or  in  the  in- 
solvent debtors'  court  ;(e)  and  in  these  cases,  an  action  cannot  be  main- 
tained for  the  amount  of  the  bill,  unless  it  be  signed,  and  delivered  a 
month  before  the  bringing  of  the  action. (/)     And  a  bill  was  referred  to 

(/j  6  Barn.  &  Cres.  86.  {g)  3  Barn.  &  Aid.  486. 

(A)  2  Car.  &  P.  45.  1  Ey.  &  Mo.  262,  S.  C.  («)  6  Taunt.  196.  1  Marsh.  539,  S.  C. 

[k)  Peake's  Cas.  Ni.  Pri.  1  Ed.  102.  2  Bos.  &  Pul.  345.  11  East,  285  ;  but  see  3  Esp.  Rep. 
149.  1  Carapb.  437. 

{I)  G  Durnf.  &  East,  645.    2  Bos.  &  Pul.  343.    1  Campb.  439,  n. 

[m]  11  East,  285. 

(a)  Say.  Rep.  233.    Say.  Costs,  320,  S.  C.  (5)  Doug.  199,  in  nods. 

(c)  5  Barn.  &  Aid.  898.    1  Dowl.  &  Ryl.  511,  S.  C. 

(d)  4  Durnf.  &  East,  496  ;  but  see  id.  "l24.  Barnes,  122,  contra. 

(«)  1  Car.  &  P.  ei5.    4  Barn.  &  Cres.  364.    6  Dowl.  &  Ryl.  510,  S.  C. 
(/)  5  Durnf.  &  East,  694.    1  Esp.  Rep.  137,  S.  C.  ' 


ATTORNEY'S  LILL.  329 

be  taxed,  for  business  done  in  a  criminal  suit,  in  the  court  of  Great  Ses- 
sions at  Carmarthen :  and  though  it  was  objected  that  it  would  be  impos- 
sible for  the  master  to  tax  the  costs  in  Wales,  not  knowing  the  practice 
there,  yet  the  court  held  that  he  could  as  well  tax  these  costs,  as  costs  in 
the  spiritual  court;  and  if  he  were  at  a  loss,  he  might  call  in  assistance. (^) 
In  the  Exche(iuer,  a  crown  solicitor's  bill  of  costs,  for  business  done  under 
an  extent,  is  taxable  :(/t)  And  if,  on  the  taxation  of  his  bill,  a  considerable 
sum  be  disallowed,  the  court  will  not  only  order  the  costs  of  the  taxation 
to  be  paid  to  the  defendant  by  the  solicitor,  but,  if  he  have  received  the 
whole  amount  of  his  bill  by  sums  paid  him  on  account,  they  Avill  order  him 
to  pay  interest  on  the  balance  reported  to  be  due  from  him.(i)  But  the 
court  cannot  order  a  solicitor's  bill  of  costs,  for  business  wholly  done  in 
the  House  of  Lords,  in  the  prosecution  of  an  appeal,  to  be  referred  for 
taxation;  because  their  officer  has  no  means  whereby  he  may  be 
enabled  to  tax  such  a  bill  :(/c)  and  great  difficulty  is  said  *to  have  [  *330  ] 
frequently  occurred  in  the  House  of  Lords,  in  not  knowing  how 
directly  to  tax  a  solicitor's  bill.  This  however  has  been  done,  under  the 
recognizance;  and  the  house  has  called  in  the  assistance  of  a  master,  to 
determine  what  the  amount  ought  to  be :  but  that  has  been  considered  only 
as  putting  the  recognizance  in  force,  not  as  a  taxation  independent  of  it, 
by  virtue  of  any  inherent  authority  possessed  by  the  House. (a)  For 
establishing  a  taxation  of  costs  on  private  bills  in  the  House  of  Lords,  it 
is  enacted,  by  the  statute  7  &  8  Geo.  IV.  c.  64,  §  1,  2,  that  on  application 
made  to  the  clerk  of  the  parliaments,  as  to  the  costs  and  expenses  of  such 
bills,  he  shall  direct  the  same  to  be  taxed,  by  such  persons  as  he  shall 
appoint;  and  in  actions  against  persons  liable  to  pay  the  costs,  the  speak- 
er's certificate  shall  have  the  effect  of  a  warrant  to  confess  judgment. 
And  there  is  a  similar  provision  for  the  taxation  of  costs  on  private  bills, 
&c.  in  the  House  of  Commons,  by  the  statute  6  Geo.  IV.  c.  123,  §  1,  2. 

In  Chancery,  an  order  for  taxing  a  bill  of  costs,  entitled  in  the  cause, 
if  obtained  by  a  party  to  the  cause,  is  regular,  under  the  general  jurisdic- 
tion ;  but  a  person  not  a  party  to  the  cause  must  apply  ex  parte,  under  the 
statute  2  Geo.  II.  c.  23,  §  23.(6)  Whether  a  party,  having  obtained  such 
an  order  in  a  cause,  may  pursue  it  under  the  statute,  is  questionable ;  but 
if  the  order  be  acted  upon,  the  irregularity  is  waived. (?*)  An  order  has 
been  made  in  bankruptcy,  for  taxing  a  solicitor's  bill,  for  striking  the  docket, 
and  previous  business  relating  to  the  bankruptcy  ;(e)  and  also,  for  business 
done  in  bankruptcy  and  otherwise. (tZ)  But  it  has  been  decided,  that  a 
solicitor's  bill  of  fees,  for  business  done  for  a  royal  foundation,  the  office  of 
visitor  being  exercised  by  the  Lord  Chancellor,  is  not  within  the  statute  2 
Geo.  II.  c.  23,  §  23  ;  it  not  being  for  proceedings  in  law  or  equity,  and  it 
is  not  in  the  court  of  Chancery  that  the  king's  visitatorial  power  is  to  be 
exerciseil,  but  by  the  Lord  Chancellor. (c)  It  has  also  been  decided,  that 
the  jurisdiction  of  the  court  of  Chancery  docs  not  extend  to  taxing  a  soli- 
citor's bill  of  costs,  for  obtaining  an  act  of  parliament. {/)  Where  the 
plaintiff  was  employed  as  a  solicitor,  to  carry  on  proceedings  in  Chancery, 
after  which  the  defendent  married  one  of  the  parties  to  the  suit,  and 

(ff)  Lloyd  V.  Maund,  T.  25  Geo.  III.  K.  B. ;  but  see  2  Mcriv.  600,  in  Chan. 

(A)  Rex  V.  Partridge,  T.  5G  Geo.  III.  in  Scac.   3  Price,  2.'^0.    West  on  Extents,  230,  S.  C. 

(i)  9  Price,  349.  {h)  4  Price,  279. 

(o)  3  Ves.  &  Beam.  21.  (6)  1 1  Vcs.  328.  (c)  5  Ves.  706. 

{d)  13  Ve3.  124.  (e)  9  Ves.  547.  (/)  3  Ves.  &  Beam.  21 


330  OF  TAXING  AN 

eventually  received  a  proportionate  part  of  the  property  in  dispute,  in 
right  of  his  wife,  under  an  order  of  that  court;  the  court  of  Common 
Pleas  held,  that  he  was  liable  to  pay  the  plaintiff  his  proportion  of  his  bill 
of  costs,  after  taxation  by  the  master,  although  there  had  been  no  retainer 
of  the  plaintiff  by  the  defendant,  and  although  the  bill  had  not  been  de- 
livered to  the  latter,  but  to  a  co-defendant,  who  had  suffered  judgment  by 
default. ((/) 

By  the  statute  6  Geo.  IV.  c.  IG,  §  l-l,(/0  "  the  petitioning  creditor  or 
creditors  shall,  at  his  or  their  own  costs,  sue  forth  and  prosecute  the  com- 
mission, until  the  choice  of  assignees  ;  and  the  commissioners  shall,  at  the 
meeting  for  such  choice,  ascertain  such  costs,  and  by  writing  under  their 

hands,  direct  the  assignees,  (who  are  thereby  thereto  required,) 
[  *331  ]  to  *reimburse  such  petitioning  creditor  or  creditors  such  costs, 

out  of  the  first  money  that  shall  be  got  under  the  commission  ; 
and  all  bills  of  fees  or  disbursements  of  any  solicitor  or  attorney  employed 
under  any  commission,  for  business  done  after  the  choice  of  assignees, 
shall  be  settled  by  the  commissioners,  except  that  so  much  of  such  bills  as 
contain  any  charge  respecting  any  action  at  law  or  suit  in  equity,  shall  be 
settled  by  the  proper  officer  of  the  court  in  which  such  business  shall  have 
been  transacted ;  and  the  same,  so  settled,  shall  be  paid  by  the  assignees 
to  such  solicitor  or  attorney :  Provided,  that  any  creditor  who  shall  have 
proved  to  the  amount  of  tiventy  pounds  or  upwards,  if  he  be  dissatisfied 
with  such  settlement  by  the  commissioners,  may  have  any  such  costs  and 
bills  settled  by  a  master  in  Chancery :  who  shall  receive  for  such  settle- 
ment, and  the  certificate  thereof,  twenty  shillings,  and  no  more."  The 
former  part  of  this  clause  appears  to  have  been  taken  from  the  statute  5 
Geo.  II.  c.  30,  §  25,  upon  which  it  has  been  holden,  that  the  petitioning 
creditor  is  liable  to  the  solicitor,  for  the  expense  of  conducting  the  com- 
mission, up  to  the  choice  of  assignees.(a)  But,  as  between  the  solicitor 
and  messenger,  there  is  no  implied  contract  on  the  part  of  the  former,  to 
pay  him  his  expenses.(6)  The  solicitor  is  an  agent  merely,  and  is  not  to 
be  regarded  as  a  principal,  as  respects  the  messenger ;  and  although  he 
make  himself  responsible  to  the  messenger,  the  petitioning  creditor  will 
not  therefore  be  exonerated,  without  the  express  consent  of  the  messenger 
to  discharge  him.(c)  And  the  messenger  under  a  commission  of  bankrupt, 
may  recover  from  the  petitioning  creditor,  his  fees  for  his  services  before 
the  party  be  declared  a  bankrupt ;  although  the  party  was  duly  declared 
a  bankrupt,  and  the  messenger's  bill  ordered  by  the  commissioners  to  be 
paid  by  the  assignee  out  of  the  estate. (t?)  The  latter  part  of  the  above 
clause  of  the  statute  6  Geo.  IV.  c.  16,  §  14,  appears  to  have  been  taken 
from  the  statute  5  Geo.  II.  c.  30,  §  47,  upon  which  it  has  been  determined, 
that  the  bill  of  costs  of  a  solicitor,  under  a  commission  of  bankruptcy,  is 
taxable,  though  approved  by  the  commissioners,  and  stated  and  allowed  in 
the  accounts  of  the  assignees.(c)  And  an  attorney's  bill,  for  obtaining  a 
bankrupt's  certificate,  must  be  signed  and  delivered  a  month  before  he 

(^r)  7  Moore,  467,  [h]  And  see  stat.  5  Geo.  II.  c.  30,  ^  25,  47. 

(rt)  1  Rose,  449  ;  and  see  Holt,  M.  Pri.  235,  376.  5  Moore,  290.  2  Brod.  &  Bing.  457,  S.  C. 
3  Barn.  &  Ores.  43.  4  Dowl.  &  Ryl.  621',  S.  C. 

[b)  Holt.  Ni.  Pri.  247,  in  notis  ;  and  see  2  Maule  &  Sel.  438.  2  Car.  &  P.  124.  5  Barn.  &  Cres. 
330.  8  Dowl.  &  Ryl.52,  S.  0. 

(c)  Holt.  Ni.  Pri.  376.  And  for  the  messenger's  remedy  against  the  assignees,  see  id.  247, 
in  notis. 

{d)  2  Car.  &  P.  123.  (e)  3  Madd.  Rep.  49. 


ATTORNEY'S  BILL.  331 

can  sue  thereon. (/)  But  an  action  may  be  maintained  by  a  solicitor 
against  an  assignee,  for  business  done  under  a  commission  of  bankrupt, 
one  month  after  he  has  delivered  a  copy  of  his  bill,  although  it  has  not 
been  taxed  by  a  master  in  Chancery.(//) 

The  statute  2  Geo.  II.  c.  23,  §  2o,  does  not,  we  have  not 
seen, (/Ji)  extend  "to  any  bill  of  fees,  &c.,  due  from  any  attorney  [  *332  ] 
or  solicitor,  to  any  other  *attorney  or  solicitor,  or  clerk  in  court ; 
but  every  such  attorney,  solicitor  or  clerk  in  court,  may  use  such  remedies, 
for  the  recovery  of  his  fees,  (fcc,  against  such  other  attorney  or  solicitor, 
as  he  might  have  done  before  the  making  of  the  said  act."  And  there  is 
a  case  in  Wilsons  Report3,(a)  where  a  judge  of  the  King's  Bench  having 
made  an  order  to  refer  an  agenfs  bill  to  be  taxed,  ami  the  master  not 
having  obeyed  it,  the  court  was  applied  to,  and  held  that  the  order  was 
irregular  ;  the  master  declaring,  that  he  had  never  taxed  a  bill  for  agency. 
It  is  now  the  uniform  practice,  however,  of  all  the  courts, (^)  to  refer  an 
agent's  bill  to  be  taxed,  on  the  application  of  his  employer,  and  upon  his 
bringing  into  court  the  sum  claimed  by  the  plaintiff.  But  the  bill  of  an 
agent  to  the  attorney  employed  by  the  party,  in  respect  of  whose  business 
the  agency  charges  have  been  incurred,  cannot  be  taxed,  on  the  application 
of  the  client. (c)  It  is  not  necessary  that  an  agent's  bill  should  be  signed 
or  delivered,  before  the  commencement  of  an  action(tZ)  And  where  busi- 
ness has  been  done  by  an  attorney,  for  a  client  who  afterwards  becomes 
himself  an  attorney,  the  former  need  not  deliver  a  bill  signed,  in  order  to 
recover  his  costs.(c) 

It  is  not  necessary  for  the  executor  or  administrator  of  an  attorney  to 
deliver  a  bill  of  costs,  for  business  done  by  his  testator  or  intestate,  before 
the  commencement  of  an  action  ;(^')  the  statute  2  Geo.  II.  c.  23,  §  23, 
being  confined  to  actions  brought  by  the  attorney  himself,  and  not  extend- 
ing to  his  personal  representatives :  But  such  a  bill  may  be  referred  to  be 
taxed,  on  the  defendant's  undertaking  to  pay  what  is  (\.we.{gfj)  An  attorney 
delivered  his  bill,  and  after  his  death  application  was  made  to  tax  it,  and 
above  a  sixth  part  was  taken  off;  it  was  moved  that  the  executrix  might 
pay  the  costs  ;  but  the  court  of  King's  Bench  held  that  she  should  not : 
for  the  words  of  the  act,  2  Geo.  II.  c.  23,  §  23,  impose  them  upon  the 
attorney  or  solicitor  only,  and  the  executrix  is  not  to  blame,  if  she  stand 
upon  his  bill,  or  make  out  one  from  his  books. (7t) 

Before  an  attorney's  bill  has  been  settled  and  paid,  it  may  be  taxed  as  a 
matter  of  course,  at  any  distance  of  time.(0  But  after  it  has  been  settled 
and  paid,  and  the  payment  has  been  long  acquiesced  under,  the  courts  will 
not  refer  it  to  be  taxed  as  a  matter  of  course  ;  nor,  as  it  seems,  unless  a 

(/)  2  Taunt.  321.    1  Rose,  1 1 9,  S.  C. 

Iff)  1  Stark.  Ni.  Pri.  278  ;  and  see  2  Campb.  278.  2  Stark.  Ni.  Tri.  59.  3  Barn.  &  Aid.  486. 
Ante,  323. 

(hh)  Ante,  327,  S  ;  and  see  Dick.  112.    1  Cox,  49,  in  Chan.  (a)  1  Wils.  2G6. 

(t))  Doiip.  i;t9,  200,  and  the  cases  there  cited,  in  nolis.  Groomc  v.  Symonds,  E.  35  Geo.  III. 
K.  B. ;  and  see  Dick.  285,  in  Chan. 

(c)  8  Price,  677. 

{(l)  Doug.  199,  in  notis.  Peake's  Cas.  Nl.  Pri.  3  Ed.  1,2;  and  see  the  case  oi  Jones,  one,  ^c, 
V.  Price,  id.  2,  (a).    1  Esp.  Rep.  221. 

(?)  1  Esp.  420.    2  H.  Blac.  589,  S.  C. 

(/)  1  Barnard,  K.  B.  433.  Andr.  276.  Cas.  Pr.  C.  P.  58.  1  Car.  &  P.  3. 

(ffff)  1  Sftlk.  89.  2  Str.  1056.  Say.  Costs,  324,  5.  4  Taunt.  724  ;  but  see  Cas.  Pr.  C.  P.  58. 
Barnes,  119,  122,  contra. 

{h)  2  Str.  1056.    Say.  Costs,  327.  (i)  Per  Cur.  T.  34  Geo.  III.  K.  B. 


332  OF  TAXING  AN 

gross  error  or  imposition  be  pointed  out.{k)  So,  where  a  bond  had  been 
given  for  the  debt  five  years  before,  and  the  vouchers  had  been  delivered 
up,  the  court  of  Common  Pleas  would  not  refer  the  bill  to  be  taxed  ;  saying, 

an  attorney  at  this  rate  could  never  be  safe.(Z)  But  though  an 
[  *333  ]  ^attorney's  bill  has  been  settled  and  paid,  yet  the  courts,  under 

special  circumstances,  will  refer  it  to  be  taxed ;  for  the  client  may 
by  affidavit  show  that  the  business  charged  was  never  performed,  or  that  the 
charges  are  fraudulent :  and  where  that  is  the  case,  neither  payment,  nor  a 
release,  nor  a  judgment  for  the  money  due,  will  preclude  the  court  from 
having  the  bill  taxed. (a)  But  overcharges  alone,  without  circumstances 
showing  fraud,  do  not  seem  to  be  sufficient.(J)  An  attorney's  bill  may 
also  be  taxed,  though  there  was  a  special  agreement,  between  the  attorney 
and  his  client,  that  the  former  should  be  paid  for  his  time,  at  a  certain  rate 
by  the  day,  besides  his  expenses  :(<?)  or  though  he  has  obtained  a  warrant  of 
attorney  from  his  client,  for  confessing  judgment  for  the  money  due  upon 
his  bill,  and  has  entered  up  judgment  thereupon. (cZ)  But  the  plaintiff, 
having  paid  to  an  attorney  the  amount  of  his  bill,  cannot,  after  a  reduc- 
tion of  the  bill  by  taxation,  maintain  an  action  for  the  difference. (e) 
And  when  a  rule  has  been  served  for  taxing  an  attorney's  bill,  the  court 
of  King's  Bench  will  not  grant  an  attachment  against  the  attorney,  for 
not  paying  the  balance  due  to  his  client,  until  the  costs  have  been  taxed, 
though  the  balance  is  admitted,  and  it  has  been  agreed  to  dispense  with 
the  taxation. (/) 

Where  an  action  is  brought  on  an  attorney's  bill,  the  court  will  order  it 
to  be  taxed,  at  any  time  before  trial,  though  after  pleaded,  and  issue  join- 
ed. (^)  But  it  is  a  general  rule,  that  an  attorney's  bill  cannot  be  taxed, 
at  the  trial  of  an  action  brought  upon  it;(7t)  nor  after  judgment  by  default, 
and  a  writ  of  inc^uiry  executed  :(^■)  for  if  the  business  was  really  done, 
(which  must  be  proved  at  the  trial,)  the  delay  of  the  defendant  for  more 
than  a  month,  in  objecting  to  the  quajitum,  is  an  admission  that  he  thinks 
it  to  be  reasonable.  In  a  modern  case  however,  an  attorney's  bill  was 
referred  to  the  master  for  taxation,  after  an  action  had  been  brought  upon 
it  and  a  verdict  recovered  on  a  suggestion  that  some  of  the  itons  in  the 
bill  would  not  have  been  allowed  by  the  master,  had  it  been  originally 
referred  to  him  for  taxation ;  but  upon  the  terms  of  the  defendant  paying 
the  costs  of  the  application,  and  of  the  taxation,  with  the  costs  of  the  cause 
as  between  attorney  and  client,  the  plaintiff  being  at  liberty  to  take  out 
the  money  forthwith,  which  had  been  paid  into  court. (M) 

The  statute  2  Geo.  II.  c.  23,  §  23,  only  requires  the  delivery  of  a  bill, 
for  the  bringing  of  an  action;  and  therefore,  though  an  attorney  cannot 
bring  an  action  on  his  bill,  till  it  has  been  delivered  a  month,  that  circum- 
stance is  not  necessary  to  enable  him  to  set  it  off.    But  he  must  not  pro- 

(k)  Say.  Costs,  323.  Doug.  199  ;  and  see  14  Ves.  2G2.  1  Ves.  &  Beam.  126.  3  Ves.  &  Beam. 
lU,  5,  iii  Chan.   7  Moore,  496.  6  Dowl.  &  liyl.  339. 

(I)  Cas.  Pr.  C.  P.  109.  Pr.  Reg.  37,  S.  C. ;  but  see  1  Barnard,  K.  B.  144,  5. 

(a)  Say.  Costs,  323.  Doug.  199,  S.  P.;  and  see  2  Atk.  295.  Dick.  403.  14  Ves.  262.  3 
Meriv.  285.    Buck.  Ill,  in  Chan.  5  Price,  42,  in  Scac. 

{b)  14  Ves.  262.  3  Ves.  &  Beam.  174  ;  and  see  1  Anstr.  186. 

(c)  Say.  Costs,  321  ;  and  see  4  Bro.  Chan.  Cas.  350;  but  see  2  Barnard,  K.  B.  164,  contra. 

[d)  Say.  Costs,  322.  (c)  2  Stark.  Ni.  Pri.  85. 

(/)  2  Chit.  Rep.  66.  (ff)  Per  Cur.  T.  21  Geo.  III.  K.  B. 

(h)  Dougl.  199  ;  and  see  2  Bos.  &  Pul.  237.  7  Price,  234.  2  Chit.  Rep.  65.  1  Car.  &  P.  627. 
(i)  Barnes,  124. 
(kfc)  2  Chit.  Rep.  63  ;  and  see  3  Dowl.  &  Ryl.  33. 


ATTORNEY'S  BILL.  333 

(luce  it  at  the  trial  by  surprise:  It  is  sufficient  in  sucli  case,  to 
deliver  *the  bill  time  enough  for  the  plaintiff  to  have  it  taxed  [  •334  ] 
before  the  trial. (aa)  The  delivery  of  a  former  bill  is  conclusive 
evidence  against  an  increase  of  charge  in  a  subsequent  bill,  on  any  of  the 
items  contained  in  it,  and  strong  presumptive  evidence  against  any  addi- 
tional items  ;  but  if  there  were  any  real  errors  or  omissions  in  the  former 
bill,  they  may  be  rectified. (^/y)  And  a  mistake  in  the  date  of  items  in  an 
attorney's  bill,  which  does  not  mislead,  will  not  vitiate  the  delivery. (cc) 
If  a  defendant  be  arrested  by  an  attorney  for  fees,  after  a  bill  of  costs  has 
been  delivered  to  him,  without  being  signed,  he  cannot  be  discharged  out 
of  custody  on  entering  a  common  appearance,  in  the  Common  Pleas  ;  as 
the  want  of  such  signature  will  be  a  defence  to  the  action,  ou  producing 
the  bill  at  the  trial.((/) 

The  statute  requires  the  bill  to  be  delivered  one  month  or  more  before  the 
commencement  of  the  action  ;  which  is  construed  to  be  a  lunar  month. (e) 
And  where  a  bill  of  costs  is  delivered  to  the  party,  it  must  be  left  with  him, 
and  not  taken  back  again. (/)  When  two  persons  are  liable  to  an  attorney, 
for  business  done  on  their  joint  retainer,  it  is  sufficient  for  him  to  deliver 
a  copy  of  his  bill  to  one  of  them,  from  whom  he  received  his  instructions, 
and  to  whom  the  management  of  the  business  was  left  by  the  other  :(^) 
but  it  seems,  that  the  delivery  of  a  copy  of  the  bill  in  such  case,  to  the  one 
who  did  not  intermeddle,  would  not  be  sufficient;  for  he  cannot  be  con- 
sidered as  having  authority  to  receive  it  for  both,  nor  is  he  likely  to  know 
what  foundation  there  is  for  the  charges  in  the  bill. (A)  And  where  a  party 
in  a  cause  having  changed  his  attorney  in  the  progress  of  it,  a  judge's 
order  was  afterwards  obtained  by  the  second  attorney,  for  the  delivery  of 
a  bill  signed  by  the  first,  of  his  fees  and  disbursements,  which  delivery 
was  accordingly  made  to  the  second  attorney,  this  was  holden,  by  a  ma- 
jority of  the  judges  of  the  King's  Bench,  to  be  a  sufficient  delivery  of  the 
bill,  to  the  2)arty  to  he  charged  thereivith,  within  the  words  and  meaning 
of  the  statute,  so  as  to  enable  the  first  attorney  to  bring  his  action  against 
the  client,  for  the  amount  of  such  hi\\.{i)  So,  the  delivery  of  a  bill  to  the 
attorney  of  the  party  to  be  charged,  is  deemed  sufficient,  if  the  party  him- 
self attend  the  taxation,  or  the  bill  be  shown  to  have  come  to  his  hands. (A-) 
If  the  bill  be  not  delivered  to  the  party,  it  must  be  left  for  him  at  his 
dwelling  house,  or  last  place  of  abode;  leaving  it  at  the  compting  house 
not  being  deemed  sufficient. (Z) 

In  an  action  on  an  attorney's  bill,  it  is  sufficient  to  give  in  evidence  a 
judge's  order  to  tax  the  bill,  the  defendants  undertaking  to  pay  what 
should  appear  to  be  due,  and  the  master's  allocatur  thereupon  •,[m)  and 
the  defendant  will  not  be  permitted  to  question  the  reasonable- 
ness of  the  *item8  before  a  jury. (a)  In  such  an  action,  the  [  *33o  ] 
nisi  prius  record  is  good  prima  facie  evidence,  to  show  that  the 
action  was  not  commenced  till  the  expiration  of  a  month  after  the  delivery 

(aa)  Doup.  109,  in  notis.  Martin  S;  WifCy  administratrix,  v.  Winder,  one,  S;c.,  E.  23  Geo.  III. 
K.  B.  there  cited.    1  Esp.  Rep.  449,  S.  P. 

{bb)  1  Bos.  &  Pul.  49.  {cc)  4  Taunt.  806. 

(rf)  4  Moore,  4.  (c)  5  Esp.  Rep.  1 08.  (/)  1  H.  Blac.  290. 

(g)  2  Campb.  277  ;  and  see  1  Campb.  437.  2  Dowl.  &  Rvl.  461. 

(A)  2  Campb.  277.  (0  12  East,  372. 

{k)  1  Gow,  71. 

(/)  2  Bos.  k  Pul.  343  ;  but  sec  1  Stark.  Ni.  Pri.  324.    1  Gow,  73,  n. 

(m)  2  Campb.  496.  (a)  Doug.  199.  Ante,  333. 


335  OF  TAXING  AN 

of  the  bill. (5)  And  where  it  is  material  for  the  defendant  to  show  that 
the  action  Avas  commenced  earlier  than  it  appears  to  have  been  by  the 
nisi  prius  record,  the  declaration  delivered  by  the  plaintiff  is  admissible 
evidence.(c)  When  an  attorney  has  regularly  delivered  a  bill  signed,  he 
may  give  a  copy  of  it  in  evidence,  without  proof  of  notice  to  produce  the 
original. (tM)  It  may  indeed  be  inferred  from  one  case,(ee)  that  unless  a 
duplicate  of  the  bill  be  kept,  the  plaintiff  cannot  give  parol  evidence  of  its 
contents,  without  a  notice  to  produce  it :  But  in  a  subsequent  case  it  was 
decided,  that  a  copy  of  an  attorney's  bill,  not  signed  by  the  attorney,  the 
original  of  which,  duly  signed,  has  been  delivered  to  the  defendant,  is 
admissible  in  evidence,  without  proof  of  notice  to  produce  the  origi- 
nal.(#)    . 

If  an  attorney  refuse  to  deliver  a  signed  bill  to  his  client,  the  latter  may 
compel  him,  by  taking  out  a  summons  before  a  judge,  entitled  in  one  of  the 
causes  in  which  he  was  concerned;  and,  in  the  King's  Bench,  if  the  attor- 
ney, on  being  served  therewith,  do  not  attend,  an  order  will  be  made  for 
delivering  it  within  a  reasonable  time.  In  the  Common  Pleas,  three  sum- 
monses are  necessary,  in  case  of  non-attendance,  before  an  order  can  be 
obtained. ((/)  And,  in  either  court,  if  the  attorney  still  neglect  to  deliver 
it,  the  order  should  be  made  a  rule  of  court ;  and  on  personal  service  of 
the  rule,(7i)  and  making  affidavit  thereof,  the  court  on  motion  will  grant 
an  attachment.  The  bill  being  delivered,  a  judge's  summons  may  be 
obtained  for  the  attorney  to  show  cause,  why  it  should  not  be  referred  to 
the  master  in  the  King's  Bench,  or  one  of  the  prothonotaries  in  the  Com- 
mon Pleas,  to  be  taxed;  upon  which,  if  the  attorney  attend,  and  the  judge 
think  it  reasonable,  be  will  make  an  order  of  course  for  taxing  it,  on  an 
undertaking  signed  by  the  client  or  his  attorney,  in  the  judges  book,  to 
pay  what  shall  appear  to  be  due  upon  such  taxation  :(2)  And,  in  the 
King's  Bench,  a  peremptory  order  will  be  made  in  like  manner,  upon  the 
first  summons,  in  case  of  non-attendance  ',{k)  but,  in  the  Common  Pleas, 
if  the  attorney  do  not  attend,  there  must  be  three  summonses  taken  out, 
and  an  affidavit  made  of  the  service  and  attendance  thereon,  before  the 
judge  will  make  an  order  ex  parte. [1)  But  in  neither  court  can  the  client 
have  a  summons  for  delivery  of  the  bill,  and  taxing  it  together. (wi)  In 
the  Exchequer,  the  rule  for  an  attachment  against  an  attorney,  for  not 
delivering  his  bill  of  costs,  is  not  absolute  in  the  first  instance, 
[  *336  ]  but  only  a  rule  nisi:{n)  *and  where  it  appeared,  on  showing 
cause,  that  the  bill  had  been  delivered  since  the  rule  was  served, 
and  illness  was  assigned  in  the  affidavit,  as  the  cause  of  not  obeying  the 
order,  the  rule  was  discharged,  without  costs,  (a) 

When  the  order  is  made,  a  copy  of  it  should  be  served,  with  the  mas- 
ter's or  prothonotary's  appointment  thereon,  to  tax  the  costs ;  and  there 
is  a  rule  in  the  King's Bench,(W)  that  "on  every  appointment  to  be  made 

(6)  1  Bos.  &  Pul.  263.  (c)  2  Campb.  497,  n. 

{(Id)  2  Bos.  &  Pul.  237.  3  Esp.  Rep.  167,  S.  G.  Peake's  Evid.  5  Ed.  104,  261.    Ante,  35. 
{ee)  2  Campb.  110. 

(/)  6  Barn.  &  Cres.  394 ;  and  see  7  Moore,  112.  3  Brod.  &  Bing.  288,  S.  C. 
\g)  Imp.  C.  P.  7  Ed.  556.  Append.  Chap.  XIV.  |  31,  2.  {h)  2  Chit.  Rep.  Q.Q. 

\i)  For  the  form  of  an  undertaking  to  pay  an  attorney's  bill  on  taxation,  in  the  Exche- 
quer, see  Append.  Chap.  XIV.  ^  33. 

(k)  Imp.  K.  B.  10  Ed.  506.  [I)  Imp.  C.  P.  7  Ed.  556,  7. 

(m)  Imp.  K.  B.  10  Ed.  506.  Barnes,  126.  {n)  11  Price,  593. 

[a)  11  Price,  593. 

\bb)  R.  H.  32  Geo.  III.  K.  B.    4  Durnf.  &  East,  580. 


ATTORNEY'S  BILL,  330 

by  the  master,  the  party  on  ^vliom  the  same  is  served,  shall  attend  such 
appointment,  ■without  waiting  for  a  second;  or  in  default  thereof,  the  mas- 
ter shall  proceed  ex  parte,  on  the  first  appointment."  But,  in  the  Com- 
mon Pleas,  it  is  said  there  must  be  three  appointments,  in  case  of  non- 
attendance,  before  the  prothonotary  can  proceed  ex  parte.(e)  And  that 
court  will  not  stay  proceedings,  in  an  action  on  an  attorney's  bill,  brought 
subsequent  to  the  order  of  the  judge  of  another  court  for  its  taxation,  but 
previous  to  its  being  taxed  :{d)  Nor  will  they  require  the  attendance  of  a 
third  person  before  the  prothonotary,  on  the  taxation  of  a  bill  of  costs, 
which  had  been  referred  to  him  in  aid  of  a  master  in  Chancery,  to  whom 
the  reference  had  been  previously  made.(e)  And  where,  more  than  one 
sixth  part  of  the  attorney's  bill  having  been  taken  off  on  taxation,  the 
defendant  presented  a  petition  to  the  Vice  Chancellor,  to  allow  the  costs 
of  taxation,  and,  pending  this  proceeding,  the  attorney  brought  his  action 
for  the  residue  of  his  bill,  the  court  of  King's  Bench  held,  that  tlie  action 
was  well  brought ;  the  statute  2  Geo.  II.  c.  23,  §  23,  having  only  prohi- 
bited an  action  being  brought  pending  the  reference  and  taxation. (/) 

If  a  sixth  part  of  the  bill  be  taken  oif,  the  attorney  is  to  pay  the  costs 
of  taxation ;  but  if  less,  the  costs  are  in  the  discretion  of  the  court.(^) 
In  the  exercise  of  this  discretion  however,  the  courts  are  governed  by 
the  statute :  and  accordingly,  the  costs  of  taxation  have  been  always 
reciprocally  given  to  the  client  or  attorney,  as  a  sixth  part  has,  or  has  not 
been  taken  off.(7i)  But,  in  the  Common  Pleas,  an  attorney  is  not  liable  to 
pay  the  costs  of  taxing  his  bill,  where  the  deduction  of  one-sixth  is  occa- 
sioned, not  by  the  particular  items  being  taxed,  but  by  a  whole  branch  of 
it  being  disallowed. (i)  And  where  an  attorney  is  entitled  to  the  costs 
occasioned  by  the  taxation  of  his  bill,  he  ought  to  apply  for  them  at  the 
time  ;  and  cannot  recover  them  by  motion,  after  making  a  subsequent  set- 
tlement.(/c)  If  a  client,  in  the  course  of  a  cause,  advance  money  to  his 
attorney,  for  specific  disbursements  in  the  cause,  those  disburse- 
ments must  nevertheless  be  included  in  the  bill  of  costs:  There-  [  *837  ] 
fore,  where  a  sum  was  deducted  *upon  taxation,  less  than  one- 
sixth  of  the  amount  of  the  bill  delivered,  including  those  disbursements,  the 
court  of  Common  Pleas  ordered  the  client  to  pay  the  costs  of  the  taxa- 
tion.(a)  And  in  that  court,  where  an  order  is  obtained  for  taxing  an 
attorney's  bill,  and  delivering  up  all  papers,  &c.  upon  the  back  of  which 
the  prothonotary,  according  to  the  usual  practice,  indorses  his  alloeatur, 
the  attorney  is  entitled  in  the  first  instance  to  the  possession  of  it,  for  the 
purpose  of  enforcing  payment  of  his  bill.(^')  In  the  Exchequer,  where  a 
solicitor  engaged  in  various  suits  obtained  payment  out  of  court  of  a  sum 
of  money  standing  in  trust  in  the  cause,  and  retained  it  towards  his  costs, 
and  upon  a  subsequent  taxation  of  his  bill,  it  appeared  that  at  the  time 
he  obtained  payment  of  the  money,  he  had  in  fact  been  already  overpaid ; 
the  court  refused,  upon  a  motion  for  that  purpose,  to  charge  him  with 
interest,  the  parties  having  made  considerable  delay  before  they  taxed  the 

(c)  Imp.  C.  P.  7  Ed.  557.  (d)  1  Bos.  &  Pul.  3G5. 

(e)  8  Taunt.  670.  3  Moore,  3,  S.  C.  (/)  2  Barn.  &  Aid.  745. 

(g)  See  the  statute,  ante,  327  ;  and  Dick.  322,  in  Chan. 

(h)  5  Barn.  &  Cres.  7G0.  8  Dowl.  &  Ryl.  589,  S.  C.  K.  B.  Cag.  Pr.  C.  P.  78.  Pr.  Reg.  36. 
Barnes,  118,  S.  C.  /(/.  147, 8,  C.  P.  1  M'Clel.  &  Y.  354,  Exchcq. ;  and  see  14  Yes.  154.  3  Vcs. 
&  Beam.  141.    2  Madd.  Rep.  329.    Bacls,  129,  in  Chan. 

(i)  2  H.  Blac.  357.  (^-)  1  Hing.  207.  8  Moore,  40,  S.  C. 

(a)  1  Taunt.  536  ;  but  see  Buck,  129,  in  Chan.  (6)  1  Taunt.  38. 


337  OF  AN  ATTORNEY'S  LIEN 

costs,  and  there  being  no  fraud  or  laches  imputable  to  the  solicitor.     1 
Younge  &  J.  527. 

To  assist  the  attorney  in  recovering  his  costs,  he  has  a  lien  for  the  amount 
of  his  bill  upon  the  deeds,  papers  and  writings  of  his  client,  ■which  come  to 
his  hands  in  the  course  of  his  professional  employment  ;[a]  and  until  his 

[a]  The  attorney  has  a  lien  on  a  judgment  recovered  by  his  client,  for  his  costs,  and  if 
the  defendant,  after  notice  from  the  attorney,  pay  the  amount  of  the  judgment  to  the  plain- 
tift'  without  satisfying  the  attorney  for  his  costs,  it  is  in  his  own  wrong,  and  he  is  liable  to 
the  attorney  for  the  amount  of  his  bill.  I'indar  v.  Morris,  3  Caines,  165.  Ten  Broeck  v. 
De  Wilt,  10  Wend.  617.  Martm  v.  Hawks,  15  Johns.  405.  Power  v.  Kent,  1  Cow.  172. 
Siveet  V.  Bartlett,  4  Sandf.  Sup.  Ct.  R.  661.  Smilh  v.  Lowden,  I  lb.  696.  Gyon  v.  Fnjatt,  2 
Id.  638.  But  he  has  no  lien  until  judgment  is  entered.  Potter  \.  Mayo,  3  Greenl.  34. 
Eobson  V.  Watson,  4  Red.  20.  Before  judgment  the  client  may  settle  the  action,  and  dis- 
charge the  other  party  without  the  attorney's  consent,  or  reference  to  his  claim  for  fees, 
&c.  lb.  Getchell  v.  Clark,  5  Mass.  309.  Foot  v.  Teivksbury,  2  Verm.  97.  The  People  v. 
Ilardenburg,  8  Johns.  335.  Pindar  v.  Morris,  3  Caines,  165.  In  Massachusetts  and  Maine, 
an  attorney's  lien  on  a  judgment  is  given  by  statute  only.  Baker  v.  Cook,  11  Mass.  236. 
Hobson  v.  Watson,  sup.  Where  the  defendant  settles  with  the  plaintiff  without  notice  from 
the  attorney  of  his  claim,  the  court  will  not  interfere  in  the  absence  of  collusion.  Grant  y. 
Ilazletine,  2  N.  Hamp.  541.  But  the  notice  need  not  be  personal;  any  notice,  credible  in 
ordinary  circumstances,  that  the  lien  will  be  insisted  on,  is  suflBcient.  Lake  v.  Ingham,  3 
Verm.  149.     Heartt  v.  Chipman,  2  Aik.  162. 

The  attorney  has  a  lien  upon  an  award  of  arbitrators,  where  a  pending  suit  is  referred, 
to  the  full  extent  of  all  his  just  claims  as  attorney  in  the  suit.  Hutchinson  v.  Howard,  15 
Verm.  544.     Nor  can  this  lien  be  defeated  by  attachment  under  the  trustee  process,  lb. 

In  Maine,  under  the  statute  of  1821,  c.  60,  an  attorney  has  a  lien  for  his  costs,  upon  the 
judgment  recovered  in  a  suit  conducted  by  him,  which  the  creditor  cannot  discharge.  Stone 
V.  Hyde,  9  Shep.  318.  Potter  v.  iVayo,  3  Greenl.  R.  34.  Gammon  v.  Chandler,  17  Shep.  152. 
And  such  lien  is  not  discharged  by  a  delay  of  several  years  to  collect  the  demand,  if  there 
is  no  negligence  on  the  part  of  the  attorney,  and  the  debtor  has  notice  of  the  claim.  lb. 

The  lien  of  an  attorney  for  advances  made  for  his  client,  in  the  progress  of  the  cause,  oa 
the  judgment  recovered,  cannot  be  defeated  by  a  judgment  which  the  defendant  has  in  set- 
off. But  the  lien  cannot  extend  beyond  the  fees  legally  accruing,  and  advances  for  accruing 
costs.  Hooper  v.  Brundage,  9  Shep.  460.  Neither  can  it  affect  pre-existing  rights  of  third 
persons.  Walker  y.  Sergeant,  14^  Y arm.  I'^l.  Scharlach  y.  Bland,  I 'Rich.  20T.  An  attorney 
has,  as  against  his  client,  a  lien  for  his  general  balance,  upon  a  note  deposited  with  him  by 
his  client  for  collection.  Bennett  v.  Cutts,  UN.  Hamp.  163.  Pope  v.  Armstrong,  3  Smedes 
&  Marsh.  214.  Cage  v.  Wilkinson,  3  Smedes  &  Marsh.  223.  And  where  the  client  gave  the 
attorney  a  note,  for  the  amount  of  such  balance,  it  was  held,  that  the  lien  was  not  dis- 
charged, as  it  did  not  appear  that  the  note  was  given  or  received  in  payment  of  the  balance. 
lb.  Though  an  attorney  may  have  a  lien  for  costs,  &c.,  which  the  court,  after  notice,  might 
protect,  yet,  where  he  sues  his  client,  and  obtains  judgment  therefor,  and  assigns  the  judg- 
ment, the  lien  does  not  attach  to  the  claim  in  the  hands  of  such  assignee.  Beech  v.  Canaan, 
14  Verm.  485. 

An  attorney  has  no  lien  for  his  fees  on  money  in  the  hands  of  the  sheriff;  and  payment 
by  the  sheriff  to  him,  after  notice  that  his  authority  is  revoked,  will  not  avail  the  sheriff. 
Irti'in  V.  Workman,  3  Watts,  357.  Walton  v.  Dickerson,  7  Barr,  376.  But  he  has  a  lien 
upon  the  debt  which  he  has  prosecuted  to  judgment,  for  his  fees,  viz.,  for  the  term,  attor- 
ney, and  travel  fees,  and  for  all  moneys  expended  by  him  in  prosecuting  the  suit.  Heartt  v. 
Chipman,  2  Aik.  162.  Although  it  has  been  held,  that  his  lien  on  a  judgment  cannot  vary 
or  affect  the  rights  of  a  stranger.  Rumrill  v.  Huntington,  5  Day,  163.  Francis  v.  Rand,  7 
Conn.  221. 

The  court  will  protect  the  attorney's  lien  for  costs  to  the  same  extent  as  they  would  the 
rights  of  an  assignee.  Bradt  v.  Koon,  4  Cow.  416.  And  whoever  receives  by  the  client's 
assignment,  the  attorney's  costs,  &c.,  is  liable  therefor  to  the  attorney  in  an  action  for 
money  had  and  received.  Heartt  v.  Chipman,  2  Aik.  162.  Sexton  v.  Pike,  8  Eng.  Arkansas, 
193.  He  has  however  no  lien,  on  damages  recovered,  before  they  come  to  his  hands,  though 
he  have  a  claim  against  his  client  equal  to  the  amount;  and  where  the  plaintiff  has  dis- 
charged the  defendant  from  payment  of  the  damages,  and  the  costs  and  ofiQcer's  fees  are 
offered  to  be  paid,  the  execution  will  be  ordered  to  be  returned  satisfied.  St.  John  v.  Diefen- 
dorf,  12  Wend.  261.  He  has  a  lien  on  his  client's  papers  in  his  possession,  but  not  any 
thing  belonging  to  his  client,  till  it  is  in  his  possession.  lb.  But  the  Supreme  Court  of 
Pennsylvania,  in  Walton  v.  Dickerson,  7  Barr,  378,  held,  that  an  attorney  has  no  lien  either 
on  the  papers  of  his  client,  or  the  money  collected  for  him,  for  his  fees,  and  that  the  Eng- 
lish rule  is  changed,  inasmuch  as  the  right  is  given  him  to  recover  for  his  services. 


FOR  nis  COSTS,  337 

bill  be  paid,  the  court  will  not  order  them  to  be  delivered  up  :{c)  nor  can  an 
action  of  trover  or  detinue  be  waintained  for  them.  Tlierefore,  Avhcre  A. 
gave  his  attorney  a  specific  sum,  for  the  purpose  of  satisfying  a  debt,  for 
which  an  execution  had  issued  against  lils  goods,  at  the  suit  of  B.,  and  the 
attorney  paid  the  money  to  B.,  who  thereupon  delivered  to  him  a  lease 
which  had  been  deposited  by  A.  with  B.  as  a  security  for  the  debt,  the  court 
held,  that  the  attorney  had  a  lien  on  it  for  his  general  balance  due  from  A. ' 
and  that  such  lien  was  not  extinguished,  by  his  having  taken  acceptances 
from  A.  for  the  amount  of  that  balance,  before  the  lease  came  to  his  hands 
some  of  those  acceptances  having  been  previously  dishonoured,  and  one  of 
them  taken  up  by  the  attorney. (c?)  An  attorney  has  a  lien  upon  papers 
belonging  to  a  bankrupt,not  only  for  his  bill  for  business  done  but  for  the 
costs  of  an  action  brought  against  the  bankrupt,  subsequently  to  the  issuin^^ 
of  the  commission,  to  recover  the  amount  of  his  bill.(6')  And  an  a^-ent  for 
an  attorney  dying  intestate  and  Insolvent,  pending  a  suit  wherein  he  was 
plaintiff,  has  a  lien  for  his  costs  upon  a  ^^ostea,  of  which  the  a^-ent  has 
obtained  possession  after  the  death  of  the  intestate. (/)  But  the  lien 
which  an  attorney  has  on  the  papers  in  his  hands,  is  only  coramcnsurato 
with  the  right  which  the  party  delivering  them  has  therein  :  and  there- 
fore, where  the  delivery  is  unauthorized,  the  attorney  cannot  detain 
t\iem.((/)  And  a  solicitor  has  no  lien  in  equity  against  a  remainder-man 
on  deeds  put  into  his  hands  by  tenant  for  life. (7i) 

An  attorney  has  also  a  lien  on  the  money  recovered  by  his  client,  for 
his  bill  of  costs. (?)  If  the  money  come  to  his  hands,  he  may  retain  it  to 
the  amount  of  his  bill :  he  may  stop  it  171  transitu,  if  he  can  lay 

(r)  1  Lil.P.  R.  142.    3  Durnf.  &East,  275.  (rf)  1  Maule  &  Sel.  535. 

(e)  2  Barn.  &  Cres.  616.    4  Dowl.  &  Rjl.  125,  S.  C. 

(/)  0  Dowl.  &  Ryl.  384.  (^r)  4  Taunt.  807. 

(/()  2  Scho.  &  Lef.  279 ;  and  see  13  Ves.  161,  2.  16  Ves.  258,  275.  18  Ves.  282,  294.  2  Scho. 
&  Lef.  279 ;  as  to  the  lien  of  a  solicitor  in  equity,  on  papers  in  his  possession.  Ante,  87. 

(i)  3  Atk.  720.  4  Durnf.  &  East,  124  ;  and  see  2  P.  Wms.  460.  2  Vez.  25.  2  Str.  1126.  3 
Bur.  1313.  8  Moore,  229.  1  Bing.  277,  S.  C,  as  to  the  lien  of  ojkcrs  of  the  court,  and  their 
remedy  for  the  recovery  of  their  fees. 

In  England,  an  attorney  has  a  general  lien  for  the  amount  of  his  bill  upon  the  deeds, 
papers,  and  writings  of  his  client,  which  come  to  his  hands  in  the  course  of  his  jirofes- 
sional  employment,  although  his  demand  does  not  arise  from  services  in  relation  to  those 
papers.  This  lien  is,  however,  only  commensurate  with  the  right  which  the  party  deliver- 
ing llio  papers  has  in  them.  He  has  also  a  special  lien  upon  the  money  of  his  client,  which 
may  come  into  his  hands,  and  upon  a  judgment  procured  by  him  for  his  client.  If  the 
money  is  in  his  hands,  ho  may  retain  it;  and  if  in  the  hands  of  the  officers  of  the  court, 
the  court  will  hold  it  until  his  lien  is  satisfied.  .Var/>i>na/d  v.  Xapicr,  14  Geo.  89.  Attor- 
neys and  counsellors  at  law  in  .Missouri,  unlike  attorneys  and  solicitors  in  England,  are 
allowed  no  fees  which  are  ta.^ed  as  costs,  luit  look  solely  to  their  clients  for  remuneration, 
the  English  doctrine  of  lien  on  papers  and  judgments  having  an  extremely  limite<l  applica- 
tion. A  defendant  will  be  protected  in  paying  the  money  to  the  plaintilfin  the  judgment, 
notwithstanding  he  may  have  notice  that  the  fees  of  the  attorneys  are  unpaid.  Frhsdl  r. 
Jliiile,  18  Mis.  (3  Bennett,)  18. 

And  it  has  been  held  in  Connecticut,  that  the  lien  of  an  attorney  for  hi.!?  fees  and  ex- 
pense?; upon  the  judgment  recovered,  is  subject  to  the  judgment  debtor's  right  of  set-olT. 
Bmj.nnin  v.  lifnjamin,  17  Conn.  110.  Ami  an  assignment  of  a  judgment,  by  the  judgment 
creditor,  to  his  attorney,  in  payment  of  his  fees  and  disbursements  in  the  suit,  is  effectual 
to  ])revcnt  a  set-off  against  such  judgment,  of  another  judgment  previously  recovered  hv 
the  judgment  debtor  against  such  judgment  creditor,  [h.  [Church  and  ll'iiVr,  J.  J.,  dissenting.'] 
This  derision  is  founded  on  the  authority  of  Ruinrill  v.  Huntington,  5  Day,  1G3,  which  con- 
flicts with  the  uniform  course  of  more  modern  decisions  elsewhere,  and  makes  an  exception 
to  the  well-established  general  principle,  that  a  chose  in  action,  not  negotiable,  is  subject, 
in  the  hands  of  the  assignee,  to  all  the  efjuilies  which  existed  against  it  between  the  original 
parties,  at  the  time  of  the  assignment.  lb. 


338  OF  AN  ATTORNEY'S  LIEN 

hold  of  it :  *If  he  apply  to  the  court,  they  will  prevent  its  being  [  *338  ] 
paid  over,  till  his  demand  be  satisfied.(a)  And  Lord  Mansfield 
declared  he  was  inclined  to  go  still  further ;  and  to  hold,  that  if  the 
attorney  give  notice  to  the  defendant,  not  to  pay  the  money  recovered  by 
his  client,  till  his  bill  be  satisfied,  a  payment  by  the  defendant  after  such 
notice,  would  be  in  his  own  wrong,  and  like  paying  a  debt  which  has  been 
assigned  after  notice.(i)  Accordingly  it  has  been  holden,  that  if  the 
defendant's  attorney  pay  to  the  plaintiff  the  debt  and  costs  recovered, 
after  notice  from  the  plaintiff's  attorney  not  to  do  so,  till  his  bill  has  been 
first  satisfied,  the  former  is  liable  to  pay  over  again  to  the  latter,  the 
amount  of  his  lien  on  such  debt  and  costs  of  the  suit.{<7)  An  attorney  has 
also  a  lien  upon  a  sum  awarded  in  favour  of  his  client,  as  well  as  if  reco- 
vered by  judgment:  and  if,  after  notice  to  the  defendant,  the  latter  pay 
it  over  to  the  plaintiff,  the  plaintiff's  attorney  may  compel  a  repayment  of 
it  to  himself;  and  he  will  not  be  prejudiced  by  a  collusive  release  from 
the  plaintiff  to  the  defendant.(cZ)  But  the  courts  will  not  go  beyond  these 
limits :  and  therefore,  where  the  defendant,  not  having  had  any  notice  to 
the  contrary,  compromised  the  debt  and  costs  with  the  plaintiff,  before  his 
attorney  had  been  paid,  the  court  of  King's  Bench  would  not  oblige  the 
defendant  to  pay.(t;c)  In  the  Common  Pleas,  if  the  defendant,  after 
action  brought,  pay  the  debt  to  the  plaintiff,  without  knowledge  of  the 
attorney,  and  without  discharging  the  costs,  the  plaintiff  has  a  right  to 
proceed  in  the  action  for  the  recovery  of  them.(^)  And  if  a  plaintiff 
collude  with  the  defendant's  bail  and  attorney,  to  deprive  the  plaintiff's 
attorney  of  his  costs,  by  settling  the  debt  and  accepting  a  part  payment, 
without  the  intervention  of  the  latter,  the  court  of  Common  Pleas  will  not 
restrain  him  from  proceeding  against  the  bail,  in  order  to  recover  such 
costs.igf/)  But  where  there  is  no  fraud,  the  plaintiff  is  allowed  to  com- 
promise the  action  with  the  defendant,  in  that  court,  as  w^ell  as  in  the 
King's  Bench,  without  consulting  his  attorney. (7Ji)  And  if  the  plaintiff 
and  defendant  collusively  settle  the  debt  and  costs  upon  an  execution,  in 
order  to  defraud  the  plaintiff's  attorney  of  his  costs,  the  latter  cannot  sue 
out  a  second  execution  on  the  same  judgment,  to  levy  his  costs,  but  must 
apply  to  the  court. (i)  So,  where  the  defendant  had  been  discharged  out 
of  custody  of  the  sheriff,  with  the  consent  of  the  plaintiff,  notwithstanding 
a  notice  from  the  plaintiff's  attorney  to  the  sheriff's  ofiicer,  not  to  release 
the  defendant,  until  the  costs  were  paid,  the  court  held,  that  the  sheriff 
was  not  liable  to  pay  those  costs,  nor  bound  to  retain  the  defendant,  after 
the  plaintiff  was  satisfied. (Z:)     So  where  an  attorney,  without  a  regular 

authority  from  the  plaintiff,  commenced  an  action  o^  replevin,  and 
[  *339  ]  the  plaintiff,  knowing  of  the  proceedings,  suffered  the  cause  *to 

be  carried  down  to  trial,  but  afterwards,  concerting  with  the 
defendant,  entered  up  satisfaction  on  the  record,  without  securing  the 
attorney  his  costs  ;  the  court  to  refused  to  vacate  the  entry  of  satisfac- 
tion.(a)    And  where  the  plaintiff's  attorney  was  indebted  to  the  plaintiff, 

(a)  Dong.  104.  1  H.  Blac.  122. 
(h)  Doug.  238. 

(c)  6  Durnf.  &  East,  361. 

(d)  1  East,  4G4;  and  see  2  Rose,  237.  1  Madd.  Rep.  49,  in  Chan. 

(ee)  Doug.  238.  (if)  6  Esp.  Rep.  40.  6  Price,  15. 

iff!/)  2  New  Rep.  C.  P.  99.  (hh)  1  Taunt.  341. 

(i)  5  Taunt  429.  1  Marsh.  113,  S.  C. 

(k)  2  Barn.  &  Aid.  402.    1  Chit.  Rep.  241,  S.  C.  (a)  3  Ring.  132. 


FOR  HIS  COSTS.  '      339 

in  a  greater  sum  than  the  amount  of  the  attorney's  costs  in  tlic  cause,  the 
court  of  Common  Pleas  hehl  that  the  agent,  to  whom  the  plaintifi"s  attor- 
ney was  indebted  on  a  general  account,  in  a  sum  greater  than  the  amount 
of  such  costs,  could  not,  as  against  the  plaintiff,  retain  out  of  the  sum 
recovered  by  the  latter,  more  than  the  charge  fur  agency  in  that  parti- 
cular cause. (^^)  As  a  further  security  to  the  attorney,  he  cannot  be 
chanycd  by  his  client,  without  leave  of  the  court,  or  order  of  a  judge,  on 
payment  of  his  bill,  to  be  taxed  by  the  proper  officer.(f) 

In  the  King's  Bench,  when  the  defendant  applies  to  set  off  the  debt  and 
costs  in  one  action,  against  those  in  another,  the  court  in  general  will  not 
suffer  it  to  be  done,  until  the  attorney's  bill,  for  business  done  in  the  cause 
wherein  he  was  concerned,  be  first  discharged  :[d)  But  it  is  otherwise  in  the 
Common  Pleas;  where  the  attorney's  lien  for  his  costs  is  held  to  be  subject 
to  the  ctpiitable  claims  that  exists  between  the  parties  in  the  cause. (c)  And, 
in  the  King's  Bench,  it  has  been  holden,  that  an  attorney  has  a  lien  on  the 
judgment  obtained  by  his  client  against  the  opposite  party,  to  the  extent  of 
his  costs  of  that  cause  only ;(/)  and  the  plaintiff,  in  that  court,  may  set  oft' 
interlocutory  costs  in  the  same  cause,  payable  by  him  to  the  defendant, 
against  the  debt  and  costs  recovered  by  him  on  the  final  result  of  the  cause  ; 
notwithstanding  the  objection  of  the  defendant's  attorney,  on  the  ground  of 
his  lien,  which  only  attaches  on  the  general  result  of  the  costs,  <S:c.,  of  the 
cause. (^)  So  where  a  defendant,  being  sued  by  bill  as  an  attorney  of  that 
court,  pleaded  by  an  attorney  or  agent  who  had  not  filed  any  warrant  to 
defend,  and  the  plaintiff,  being  nonsuited,  moved  to  stay  the  proceedings  in 
the  action,  undertaking  to  set  off  the  defendant's  costs  against  a  judgment 
debt  due  from  him  to  the  plaintiff,  the  court  held,  that  the  defendant's  attor- 
ney or  agent  had  no  lien  upon  the  costs,  for  his  own  costs  in  defending  the 
suit. (A)  Where  the  plaintiff,  having  charged  the  defendant  in  execution, 
died,  and  the  defendant's  wife  took  out  administration  to  the  plaintiff,  the 
court  of  King's  Bench  ordered  the  defendant  to  be  discharged 
out  of  custody;  saying,  that  the  plaintiff's  *attoruey  had  no  lien  [  *340  ] 
on  the  judgment  for  his  costs. (a)  And  where  the  plaintiff,  after 
judgment  recovered,  settled  the  action  with  the  defendant,  and  employed 
a  new  attorney  to  enter  up  satisfaction  on  the  record,  the  court  held  that 
the  defendant  was  entitled  to  be  discharged  out  of  custody ;  although  the 
lien  of  the  plaintiff's  attorney  for  the  costs  had  not  been  satisfied.(A6) 

{h)  1  Bing.  20.  7  Moore,  249,  S.  C. ;  aud  see  6  Price,  203.  2  Dowl.  &  Rjl.  G.  C  Dowl.  k 
Ryl.  384.    Ante,^l. 

(c)  1  Lil.  P.  R.  141.    Doug.  217,    Ante,  94. 

{d)  4  Duruf.  &  East,  123,  4.  6  Durnf.  &  East,  456.  8  Durnf.  &  East,  70.  1  Maule  &  Sol. 
240.    8  Tauut.  52G. 

(e)  2  Blac.  Rep.  826.  Say.  Costs,  254,  S.  C.  1  H.  Blac.  23,  217.  2  H.  Blac.  440,  587.  2  Bos. 
&  Pul.  28.  1  New  Rep.  C.  P.  22.  4  Taunt.  320.  8  Taunt.  526.  95  Moore,  5.  4  Bing.  16.  1 
Price,  37G;  and  see  Lee's  Prac.  Die.  1  Ed.  108,  9,  340,  41.  15  Ves.  72,  539.  2  Ball  &  Beat. 
34,  in  Chan. 

(/■)  3  Barn,  k  Ores.  535.    5  Dowl.  &  Ryl.  399,  S.  C.    4  Bing.  17,  S.  C.  cited. 

(g)  8  East,  362.    1  Price,  375.  (/i)  1  Dowl.  &  Ryl.  1G8. 

la)  8  Durnf.  &  East,  407 ;  but  see  8  Moore,  145,  529.     1  Bing.  431,  S.  C. 

\bb)  4  Barn.  &  Aid.  466. 


*341  OF  THE  PROCEEDINGS 


*CnAPTER    XV. 

Of  the  Proceedings  in  Actions  against  Prisoners,  in  Custody  of  the 
'Sheriff,  ^c.  ;  and  of  the  Marshal  of  the  King's  Bench,  or  Warden 
of  the  Fleet  Prison  :  ivith  the  Relief  they  are  entitled  to,  under  the 
Lords'  Act,  ^c. 

Prisoners  in  general  may  be  considered  as  they  are  in  custody  on  a 
civil  or  criminal  account :  and  on  a  civil  account,  they  are  either  taken  or 
detained  in  custody  of  the  sheriff,  &c.  on  mesne  process  before,  or  final 
process  after  judgment ;  or  they  are  committed  to  the  custody  of  the  mar- 
shal of  the  King's  Bench,  or  warden  of  the  Fleet  prison,  on  a  cepi  cor- 
pus,{aa)  or  habeas  corpus,  or  surrender  in  discharge  of  bail. 

In  treating  of  prisoners,  I  shall  consider,  first,  the  mode  of  proceeding 
in  actions  against  them,  when  in  actual  custody  of  the  sheriff,  &c.  previ- 
ous to  the  plea ;  secondly,  the  writ  of  habeas  corpus,  and  manner  of  re- 
moving prisoners  under  it,  into  the  custody  of  the  marshal  of  the  King's 
Bench,  or  warden  of  the  Fleet  prison  ;  thirdly,  the  bill  against  prisoners, 
in  the  actual  or  supposed  custody  of  the  marshal,  and  how  far  it  is  con- 
sidered as  the  commencement  of  the  suit ;  fourthly,  the  proceedings  in 
actions  against  prisoners,  in  the  actual  custody  of  the  marshal  or  warden, 
previous  to  the  plea ;  fifthly,  the  proceedings  in  actions  against  them, 
when  in  actual  custody  of  the  sheriff,  &c.  or  of  the  marshal  or  warden, 
subsequent  to  the  plea ;  and  lastly,  the  relief  they  are  entitled  to  under 
the  Lords'  act,  and  other  acts  for  the  discharge  of  insolvent  debtors. 

It  has  already  been  seen,{bb)  that  when  the  defendant  is  arrested,  he  is 
either  let  out  of  custody,  upon  giving  bail  to  the  sheriff,  or  an  attorney's 
undertaking  for  his  appearance,  or  depositing  in  the  sheriflF's  hands,  the  sum 
indorsed  on  the  writ,  with  101.  in  addition  to  answer  costs,  &c. ;  or  he  re- 
mains in  custody,  or  escapes,  or  is  rescued,  &c.  And  when  he  remains  in 
custody  of  the  sheriff,  the  plaintiff  in  due  time  should  declare  against  him 
in  such  custody,  unless  he  be  removed  by  habeas  corpus,  to  the  custody  of 
the  marshal  of  the  King's  Bench,  or  warden  of  the  Fleet  prison. 

Before  the  making  of  the  statute  4  &  5  W.  &  M.  c.  21,  there  could  have 
been  no  declaration  in  either  court,  against  a  defendant  in  custody  of  the 
sheriff,  or  other  officer  by  whom  he  was  arrested;  but  the  plaintifi" 
[  *342  ]  was  ^obliged  to  bring  a  habeas  corpus  cum  causa,  and  so  turn 
him  over  to  the  custody  of  the  marshal  or  warden,  in  order  to 
charge  him  with  a  declaration. («)  But  now,  by  the  above  statute,(J)  which 
was  passed  to  relieve  plaintiffs  from  the  trouble  and  expense  of  bringing  up 
prisoners  by  habeas  corpus,{c)  "  if  any  defendant  be  taken  or  charged  in 
custody,  at  the  suit  of  any  person,  upon  any  writ  out  of  any  of  the  courts  at 
Westminster,  and  imprisoned  for  want  of  sureties  for  his  appearance,  the 
plaintiff  in  such  writ  may,  before  the  end  of  the  next  term  after  such  writ  is 
returnable,  declare  against  such  prisoner,  in  the  court  out  of  which  the  writ 
issued,  whereupon  the  said  prisoner  was  taken  and  imprisoned,  or  charged 

{aa)  Barnes,  392.  {Ih)  Ante,  221. 

(a)  See  the  preamble  to  the  statute.  R.  M.  1654,  g  II,  R.  E.  5  W.  &  M.  reg.  3,  g  1,  {a), 
K.  B.     IWils.  120.     2  Bur.  1051.     1  Duruf.  &  East.  192. 

(*)  §2.  (c)  1  Wils.  120.     1  Durnf.  &  East,  192. 


AGAINST  PIUSONERS,  ETC.  342 

in  custody;  and  may  cause  a  true  copy  thereof  to  be  delivered  to  such  pri- 
soner, or  to  the  fjaoler  or  keeper  of  the  prison  or  f^aol  in  whose  custody 
such  prisoner  shall  be  or  remain  ;  to  whicii  declaration  tlie  said  prisoner 
shall  appear  and  plead  ;  and  if  such  prisoner  shall  not  appear  and  plead  to 
the  same,  the  plaintiff  in  such  case  shall  have  judgment,  in  such  manner 
as  if  the  prisoner  had  appeared,  and  refused  to  answer  or  plead  to  such 
declaration." 

And,  by  the  same  statute,  §  3,  "in  all  declarations  against  any  prisoner 
detained  in  prison,  by  virtue  of  any  writ  or  process  issued  out  of  the  court 
of  King's  Bench,  it  shall  be  alleged  in  custody  of  what  sheriff,  bailiff,  or 
steward  of  any  franchise,  or  other  person  having  the  return  and  execution 
of  writs,  such  prisoner  shall  be,  at  the  time  of  such  declaration,  l»y  virtue  of 
the  proces  of  the  said  court,  at  the  suit  of  the  plaintiffs  :{d)  which  allegation 
shall  be  as  good  and  effectual,  to  all  intents  and  purposes,  as  if  such  prisoner 
or  prisoners  were  in  the  custody  of  the  marshal."  If  the  declaration  there- 
fore do  not  allege,  either  expressly  or  by  implication,  in  what  custody  the 
defendant  is  detained,  and  at  whose  suit,(g)  it  will  be  bad  on  a  general  de- 
murrer. This  allegation  however  is  only  necessary,  where  the  plaintiff 
proceeds  upon  a  bill  of  Middlesex  or  latitat,  &c.  or  by  attachmeyit  of  privi- 
lege, in  the  King's  Bench;  and  not  where  he  proceeds  by  original  writ 
in  that  court,  or  by  action  in  the  Common  Pleas.  And,  in  a  declaration 
in  debt,  it  is  unnecessary  to  state  at  whose  suit  the  defendant  is  in  cus- 
tody ;  the  words  "  of  a  plea  that  he  render,  &c.,"  being  a  sufficient  allega- 
tion, that  he  is  in  custody  at  the  plaintiff's  suit.(/) 

Upon  this  statute,  a  defendant  in  the  actual  custody  of  the  sheriff  or 
other  officer,  may  be  proceeded  against  by  the  same  plaintiff  at  whose  suit 
he  was  arrested,  or  by  a  tliird  person  :  by  the  former,  upon  the  original 
caption,  by  the  latter  upon  a  subsequent  charge,  and  by  either  of  them, 
upon  a  re-caption  by  virtue  of  an  escape  warrant. (^) 

When  the  defendant  is  a  prisoner  in  custody  of  the  sheriff,  &c.,  a  bill  must 
be  filed  against  him,  in  the  King's  Bench,  with  the  clerk  of  the 
*declarations  in  the  King's  Bench  office  ;  it  being  holden,  that  the  [  *343  ] 
delivery  of  a  declaration  against  a  prisoner,  though  within  tivo 
terms,  is  a  nullity,  if  there  were  no  bill  filed  before  -.[aa)  And,  by  rule  of  E. 
5  W.  k  M.  if  the  declaration  be  not  filed  in  the  King's  Bench, (M)  and  Ex- 
chequer,((?)  or  entered  and  left  in  the  office  in  the  Common  Pleas,  before 
the  end  of  the  next  term  after  the  writ  or  process,  by  which  the  prisoner 
was  taken  or  charged  in  custody,  is  returnable,  the  prisoner  shall  be  dis- 
charged, in  the  King's  Bench  and  Exchequer,  on  filing  common  bail ;  or, 
in  the  Common  Pleas,  upon  entering  his  appearance  with  the  proper  offi- 
cer, by  writ  of  supersedeas,  made  by  him,  according  to  the  ancient  prac- 
tice of  that  court. ((M) 

The  statute  expressly  provides,  that  the  plaintiff  may  declare  against  a 
defendant  in  custody  of  the  sheriff,  &c.,  before  the  end  of  the  next  term 
after  the  process  is  returnable :     But  a  subsequent  rule,  of  the  court  of 

(rf)  Append.  Chap.  XV.  g  1,  &c.  [f)  2  Ld.  Ravm.  l."?62.     1  Wils.  119,  20. 

(/)  Id.  ibid.  1  Ken.  114.  (^)  Ante,  233,  4,  5. 

(^aa)  4  E;ist,  IG  ;  and  see  1  Chit.  Rep.  389. 

(bb)  R.  E.  5  \V.  k  .M.  rejj.  3,  g  6,  K.  B. ;  and  sec  Carth.  469.      1  Salk.  98,  S.  C. 
(c)  R.  E.  5  W.  &  M.  rcg.  3,  §  6,  in  Scac.     Man.  Ex.  Append.  208. 

(dd)  R.  E.  5  W.  &  M.  re^.  3,  ^  6,  C.  P.     And  for  tho  form  of  the  writ  of  aupersedeat.  see 
Append.  Chap.  XV.  g  35,  &c. 

Vol.  I.— 22 


o  J3  OF  THE  PROCEEDINGS 

King's  Tiench,{e)  having  rather  ambiguously  required,  that  if  the  defen- 
dant should  remain  in  custody  for  two  terms,  and  the  plaintiff  should  not 
declare  against  him  within  that  time,  the  defendant  should  be  discharged 
out  of  custody,  after  the  end  of  the  second  term  after  such  imprisonment ; 
the  judges  of  that  court,  in  favour  of  liberty,  determined,  that  Avhere  a 
defendant  was  arrested  in  one  term,  on  a  writ  returnable  the  next,  the 
term  in  which  the  defendant  Avas  arrested  should  be  reckoned  as  one  of 
the  two  terms ;  and  consequently,  that  the  defendant  should  be  discharged, 
for  want  of  a  declaration,  after  the  end  of  the  same  term  in  which  the 
writ  was  returnable. (/)  This  practice  however  has  been  since  altered ; 
and  it  is  now  settled,  agreeably  to  the  letter  and  intention  of  the  statute, 
that  in  all  cases  where  a  prisoner  is  taken  or  charged  in  custody,  by  mesne 
process  issuing  out  of  the  King's  Bench,  the  plaintiflf  may  declare  against 
him,  before  the  end  of  the  next  term  after  the  return  of  the  process,  by 
virtue  whereof  he  was  taken  or  charged  in  custody. "(^)  And  a  plaintiff 
need  not  declare  against  a  prisoner,  until  the  term  next  after  the  return 
of  the  writ,  even  though  there  was  time  in  the  term  in  which  the  W'rit  was 
sued  out,  to  have  made  it  returnable  in  that  term,  and  it  be  not  in  fact 
made  returnable  until  the  next  term. (7i)  The  term  however,  in  which  the 
process  whereon  the  defendant  was  arrested  is  returnable,  is  still  accoun- 
ted one  of  the  two  terms  ;  although  it  be  returnable  on  the  last  day  of  the 
term  :(i)  and  the  plaintiff  cannot  declare  before  the  return  of  the  process, 
upon  which  the  defendant  was  taken  or  charged  in  custody.(A;) 

If  the  defendant  be  taken  and  detained,  or  charged  in  custody  of  the 

sheriff,  &c.,  for  a  bailable  cause  of  action,  a  copy  of  the  declara- 
[  *34:4:  ]    tion  should  *be  delivered  personally  to  the  defendant,  or  left  for 

him  with  the  gaoler  or  keeper  of  the  goal  or  prison  in  whose 
custody  he  is  confined,  before  the  end  of  the  next  term  after  the  return 
of  the  process  :{a)  And  if  any  gaoler  or  keeper  of  a  prison,  having 
received  a  copy  of  a  declaration  against  any  prisoner  in  his  custody,  shall 
suppress  the  same,  and  not  deliver  it  forthwith  unto  such  prisoner,  an 
attachment  shall  be  issued  against  him. (J)  It  is  not  sufficient,  where  the 
defendant  is  a  prisoner  in  custody  of  the  sheriff,  &c.,  to  file  or  enter  a 
declaration  in  the  office,  to  which  the  defendant  is  not  obliged  to  plead, 
and  on  which  the  plaintiff  cannot  take  a  regular  judgment  :(<?)  And,  in 
the  Common  Pleas,  if  a  defendant  in  custody  employ  an  attorney,  merely 
for  the  purpose  of  putting  in  bail,  the  delivery  of  a  declaration  to  such 
attorney  is  not  sufficient. ((i)  But  it  is  not  necessary,  in  that  court,  to 
enter  the  declaration  with  the  prothonotary,  before  the  delivery  thereof 
to  the  prisoner ;  it  being  sufficient,  if  it  be  entered  at  any  time  before  the 
giving  of  a  rule  to  appear  and  plead. (ec)  And,  in  the  King's  Bench,  if  the 
defendant  be  served  in  custody  of  the  sheriff,  &c.,  with  a  copy  of  process, 
at  the  suit  of  the  sa?ne  or  a  differeiit  plaintiff,  it  is  not  necessary  that  a 

(e)  R.  T.  2  Geo.  I.  K.  B. 

(/)  3  Bur.  1448.     4  Bur.  2060.     Cookmn  v.  Forstcr,  T.  23  Geo.  III.  K.  B. 

Iff)  R.  H.  26  Geo.  III.  K.  B.     2  Blac.  Rep.  1242,  3,  C.  P.  accord. 

(h)  6  Durnf.  &  East,  547.  (i)  R.  T.  2  Geo.  I.  (a),  K.  B. 

(k)  R.  E.  5  W.  &  M.  reff.  3,  §  1,  K.  B.  C.  P.  &  Excheq. 

(a)  Slat.  4  &  5  W.  &  M.  c.  21,  §  2.     1  Bos.  &  Pul.  535. 

(b)  R.  E.  5  W.  &  M.  reff.  3,  |  7,  K.  B.  C.  P.  &  Excheq. 

(c)  1  Str.  474.     1  Bos.  &  Pul.  535  ;  and  see  1  Chit.  Rep.  386,  720. 

(d)  1  Taunt.  493 ;  and  see  5  Durnf.  &  East,  35. 

(ee)  Barnes,  372.     Pr.  Reg.  329.     Cas.  Pr.'  C.  P.  114,  S.  C.     1  Bos.  &  Pul.  539. 


AGAINST  PRISONERS,  ETC.  344 

copy  of  the  declaration  should  be  delivered  personally  to  the  defendant, 
or  left  for  him  with  the  gaoler  or  turnkey :  but  it  may  be  delivered  or 
filed,  absolutely  or  de  bene  esse,  and  the  plaintift"  may  proceed  thereon,  as 
if  the  defendant  were  at  large. (/) 

The  plaintiff  having  declared,  an  ajfuhivlt  should  be  made,  and  filed  with 
the  clerk  of  the  rules,  in  the  King's  Bench,  before  the  first  day  of  the 
ensuing  term  \{g)  stating  the  delivery  of  a  copy  of  the  declaration,  and 
the  time  when,  and  person  to  whom,  the  same  was  delivered  ;(/i)  if  to  a 
gaoler  or  turnkey,  that  he  acknowledged  the  defendant  was  then  a  prisoner 
in  his  custody  ;(i)  and  that  the  defendant  was  arrested,  or  charged  in  cus- 
tody, by  process  of  this  court,  returnable  before  the  delivery  of  the  copy.(/cj 
The  time  when  such  affidavit  was  filed  should  be  entered  thereon,  by  the 
clerk  of  the  rules,  and  a  copy  of  it  produced  to  the  master  in  the  King's 
Bench,  or  clerk  of  the  pleas  in  the  Exchequer,(?)  before  judgment. (yt) 
Hence  it  is  necessary,  and  usual  in  the  King's  Bench,  when  the  defendant 
is  in  custody  of  the  sheriff,  &c.,  to  make  three  copies  of  the  declaration  : 
one  to  be  delivered  to  the  defendant,  or  left  for  him  with  the  gaoler  or 
turnkey,  who  should  be  asked  if  the  defendant  be  a  prisoner  at  the  plain- 
tiff's suit ;  another,  to  be  annexed  to  the  original  affidavit  of 
such  *delivery,  and  filed  with  the  clerk  of  the  rules  ;  and  a  [  *345  ] 
third,  to  be  annnexed  to  an  office  copy  of  such  affidavit :  On 
this  last  copy,  a  rule  is  given  with  the  clerk  of  the  rules,  for  the  defen- 
dant to  appear  and  plead  ;  and  in  default  thereof,  judgment  may  be 
signed.(^<)  In  the  Common  Pleas,  the  affidavit  of  the  delivery  of  a  copy 
of  the  declaration,  &c.,  should  be  made  and  filed  with  one  of  the  secon- 
daries, within  twentij  days  after  the  end  of  the  next  term  after  that  in 
which  the  writ  or  process  is  returnable,  Easter  term  excepted,  and  within 
ten  days  after  Easter  term  :{h)  therefore,  if  a  declaration  against  a 
prisoner  bo  delivered  on  the  last  day  of  the  term  in  which  the  writ  is 
returnable,  the  affidavit  of  the  delivery  need  not  be  filed  till  tioenty  days 
after  the  expiration  of  the  following  terra. (<?(?)  And  in  that  court,  the 
production  of  a  copy  of  the  affidavit  to  the  prothonotary  being  dispensed 
with,(cZ'?)  it  is  only  necessary  to  have  two  copies  of  the  declaration ;  one 
to  be  delivered  to  the  defendant,  or  left  for  him  with  the  gaoler  or  turn- 
ke}',  and  the  other  to  be  annexed  to  an  affidavit  of  such  delivery ;  upon 
which  latter  copy,  the  secondary  will  give  a  rule  for  the  defendant  to 
appear  and  plead. 

The  mode  of  charging  a  defendant  in  actual  custody  of  the  sheriff,  &c. 
for  a  bailable  cause  of  action,  is  by  making  an  affidavit  thereof,  and  suinf^f 
out  process  ;  which  should  be  duly  marked  or  indorsed  for  bail,  and  left 
at  the  sheriff's  office.  But  if  the  cause  of  action  be  not  bailable,  the  same 
plaintiff  or  a  tliird  person  may  proceed  against  the  defendant,  as  if  he  were 
at  large,  by  serving  him  with  a  copy  of  process  ;(e)  and  if  he  do  not  appear, 
by  filing  a  declaration  in  the  office,  and  giving  him  notice  thereof.     But 

(/)  1  Durnf.  &  East,  192  ;  but  see  Barnes,  392. 

(y)  R.  H.  2G  Geo.  III.  K.  B. 

\h)  R.  E.  5  W.  &  M.  rcg.  3,  §  2,  K.  B. ;  and  see  Append.  Chap.  XV.  g  6. 

(i)  R.  E.  5  \V.  &  M.  Tcg.  3,  <(  2,  {a),  K.  B. 

\k)  R.  E.  5  W.  k  M.  reg.  3,  §  2,  K.  B. ;  and  see  Append.  Clinp.  XV.  I  G. 

\l)  R.  E.  5  W.  &  M.  reg.  3,  <j  2,  in  Scac.     Man.  E.x.  Append.  207. 

(rt)  Same  rule,  ^  2,  (h),  K.  B.  (h)  R.  E.  5  W.  &  M.  reg.  3,  q  o,  C.  P. 

{cc)  3  Moore,  230.  {dd)  Imp.  C.  P.  7  Ed.  6CG,  672. 

(e)  1  Darnf.  &  East,  192;  but  see  Barnes,  392. 


345  <^F  THE  PROCEEDINGS 

neither  the  plaintiff  nor  a  third  person  can  charge  a  prisoner  with  a  decla- 
ration, or  execution, (/)  in  a  civil  action,  when  he  is  in  custody  of  the 
sheriff,  or  in  any  other  custody,  on  a  criminal  account  without  leave  of 
the  court,{^)  or  a  judge :  and  a  prisoner  in  custody  on  an  attachment  for 
a  contempt,  is  holden  to  be  a  prisoner  in  custody  on  a  criminal  account, 
within  the  meaning  of  this  rule  ;{A)  though  if  he  accept  a  declaration,  and 
suffer  judgment  to  go  against  him  without  complaining,  he  has  waived  the 
advantage  which  he  might  have  taken  of  the  irregularity,  and  shall  be 
bound  by  it.(^')  A  person  in  custody  however,  under  an  attachment,  for 
non-payment  of  costs,  may  be  charged  with  an  execution  in  a  different 
action  as  a  matter  of  course :(/c)  And  one  who  is  attainted  of  felony,  or 
even  treason,  may  be  charged  with  a  civil  action,  by  leave  of  the  court  or 
a  judge;  so  as  it  be  not  to  defeat  the  effect  of  the  king's  pardon,  by  dis- 
abling him  from  going  abroad.(Z)  But  the  court  of  Common 
[  *o4G  ]  Pleas  will  not  grant  a  habeas  "^corpus,  to  bring  up  a  prisoner  in 
custody  on  a  criminal  account,  in  order  to  have  him  charged  with 
a  declaration, (a)  or  execution, (5)  in  a  civil  action. 

When  a  defendant,  being  a  prisoner  in  custody  of  the  marshal,  upon 
mesne  process,  shall  be  taken  and  detained  in  custody  of  any  sheriff,  by 
virtue  of  a  judge's  warrant  for  an  escape,  the  plaintiff'  shall  declare 
against  him  in  custody  of  such  sheriff,  before  the  end  of  the  second  term 
after  such  taking  and  detaining;  otherwise  a  supersedeas  may  be  made 
for  such  defendant :((?)  And,  in  the  Common  Pleas,  when  the  defendant 
had  been  previously  rendered  to  the  Fleet  prison,  the  court  held  that  the 
time  of  his  recaption,  or  coming  again  into  prison,  should  be  looked  upon 
as  the  time  of  the  render,(c?) 

The  times  for  appearing  and  'pleading^  when  the  defendant  is  in  custody 
of  the  sheriff,  &c.  are  regulated  as  follows :  That  "  upon  every  arrest  by 
mesne  process  out  of  either  court,  returnable  the  first  day  of  Easter  or 
3Iichaelmas  term,  if  a  copy  of  the  declaration  be  delivered  against  the 
defendant,  before  one  month  from  the  day  of  Easter,  or  the  morrow  of 
All  Souls,"  (that  is,  before  the  third  return  of  Easter  term,  or  of  Michael- 
mas term,  as  it  then  stood,)(eg)  "and  affidavit  thereof  made  and  filed,  and 
the  defendant  do  not  appear  before  the  end  of  ten  days  after  those  terms 
respectively,  judgment  may  be  entered  against  him,  if  rules  have  been 
given:  but  if  he  appear  within  that  time,  he  shall  imparl  until  the  next 
term ;  unless  the  action  be  in  London  or  Middlesex,  and  the  defendant 
be  in  prison  within /or^?/  ™iles  of  London  or  Westminster ;  in  which  case, 
though  he  appear  before  the  expiration  of  that  time,  he  shall  plead  two 
days  before  the  essoin  day  of  the  next  term:    and  in  default  thereof, 

(/■)  Pr.  Reg.  325. 

\g)  T.  Raym.  58.  1  Sid.  90,  S.  C.  1  Lev.  124.  1  Sid.  154,  S.  C.  1  Lev.  146.  1  Salk. 
354.     R.  T.  2  Geo.  L  (a). 

(A)  Cas.  Pr.  C.  P.  27.     Pr.  Reg.  325. 

{i)  Cas.  Pr.  C.  P.  31 ;  and  see  1  Durnf.  &  East,  591.     1  Chit.  Rep.  386. 

{k)  4  Durnf.  &  East,  316. 

[1]  2  Salk.  500.  7  Mod.  153.  2  Ld.  Raym.  848,  S.  0.  Id.  1572.  2  Sir.  873,  S.  C.  Cas. 
temp.  Hardw.  190.     1  Blac.  30.     1  Wils.  217.     Fost,  61,  S.  C.     2  New  Rep.  C.  P.  246. 

{a)  2  New  Rep.  C.  P.  245  ;  and  see  1  Marsh.  166.  3  Moore,  259.  1  Brod.  k  Ring.  23,  S. 
C.     Ante,  287. 

(6)  8  Moore,  81.     1  Ring.  221,  S.  C. 

(c)  R.  T.  6  Ann.  K.  B. ;  and  see  6  Mod.  21    254. 

(rf)  Barnes,  382  ;  and  see  4  Moore,  380.     2  Brod.  &  Bing.  35,  S.  C. 

(ce)  This  term  having  been  since  shortened,  by  the  statute  24  Geo.  IL  c.  48. 


AGAINST  PllI.SONERS,  ETC.  3-46 

rules  having  been  given,  judgment  may  be  entered  against  him  as  afore- 
said."(/)  And  where  the  essoin  day  of  tiie  term  fell  on  a  Monday^  and 
on  the  Saturday  preceding,  defendant  not  having  pleaded,  the  phiintiff 
signed  judgment  as  for  want  of  a  plea,  the  court  of  King's  liench  refused 
to  set  aside  the  judgment  for  irregularity.(r/) 

"  If  a  copy  of  the  declaration  bo  delivered  against  such  defendant,  on 
or  after  one  month  from  the  day  of  Easter  in  Easter  term,  or  the  morrow 
of  All  Souls  in  Mi'-Iiaclmas  term,  or  in  Hilary  or  Trinity  term,  and  there- 
upon the  plaintifl'  give  rules  to  appear  and  answer,  then  if  the  defendant 
appear  two  days  before  the  essoin  day  of  the  next  term,  he  shall  imparl 
until  the  next  term;  but  if  he  do  not  appear  within  that  time,  judgment 
may  be  given  against  him."(/() 

*And  "if  a  writ  be  returnable  in  a7iy  term,  and  a  copy  of  [  *347  ] 
the  declaration  have  been  delivered  before  the  ession  day  of  the 
next  term,  the  plaintiff  in  such  next  term  may  give  rules  to  appear  and 
answer :  and  if  the  defendant  do  not  appear  and  plead  upon  the  expira- 
tion of  the  rules,  judgment  shall  be  given  against  him. "(a) 

"When  the  defendant  is  in  custody  of  the  sheriff,  &c.  the  demand  of  a 
plea  is  unnecessary. (^/)  And  when  a  plea  is  filed  by  the  defendant,  at  an 
earlier  time  than  by  the  rules  of  the  court  he  is  compellable  to  plead,  he 
must,  in  order  to  prevent  surprise,  give  notice  of  his  plca:(6')  but  no  such 
notice  is  required  where  the  plea  is  filed  in  regular  time  ;(<;/)  and,  in  the 
Common  Pleas,  where  declaration  was  delivered  to  a  prisoner  in  gaol, 
indorsed  with  a  notice  to  plead  in  eight  days,  a  plea  pleaded  before  the 
declaration  was  filed  is  good.(e)  In  other  respects,  the  proceedings  sub- 
sequent to  the  declaration,  against  a  defendant  in  custody  of  the  sheriff, 
&c.  are  similar  to  the  proceedings  against  him  when  in  custody  of  the 
marshal  or  warden ;  which  will  be  treated  of  in  a  subsequent  part  of  this 
chapter. 


It  will  next  be  proper  to  consider  the  writ  of  Jiabeas  co7yus,  and  the 
manner  of  removing  prisoners  under  it,  into  the  custody  of  the  marshal  of 
the  King's  Bench,  or  warden  of  the  Fleet  prison;  after  which,  the  remain- 
ing subjects  of  this  chapter  will  be  treated  of  in  their  proper  order. 

The  writ  of  habeas  corpus  lies  in  civil  or  criminal  cases.  In  criminal 
cases,  this  writ,  and  the  proceedings  thereon,  principally  depend  on  the  sta- 
tute 31  Car.  II.  c.  2,  the  provisions  of  which  are  extended  by  the  statute 
5<j  Geo.  III.  0.  100,  "for more  effectually  securing  the  liberty  of  the  sub- 
ject." But  this  writ,  whether  at  common  law  or  under  the  31  Car.  II.  c.  2, 
does  not  issue  as  a  matter  of  course,  upon  application  in  the  first  instance, 
but  must  be  grounded  upon  afTidavit,  on  Avhich  the  court  are  to  exercise 
their  discretion,  whether  the  writ  shall  or  shall  not  issue.(^')  A  prisoner 
in  execution,  in  the  King's  Bench,  may  be  charged  there  criminally,  by  a 
justice  of  peace's  warrant  ;(^^)  but  no  such  justice  can  take  a  prisoner  of 

(  f)  R.  E.  5  W.  &  M.  reg.  3,  §  3.  K.  B.  C.  P.  &  Excheq.  (y)  2  Dowl.  &  Ryl.  538. 

(h)  K.  E.  5  \V.  &  M.  reg.  3,  §  4,  K.  B.  C.  P.  k  Excheq. 

(a)  R.  E.  5  W.  &  M.  reg.  3,  §  3,  K.  B.  C.  P.  &  Excheq. 

(6)  1  Durnf.  &  East,  591.     6  Durnf.  k  East,  524 ;  but  see  2  Bos.  k  Pul.  367. 

(c)  4  Durnf.  &  East,  664.     8  Durnf.  k  East,  596.  (rf)  5  Durnf.  &  East,  473. 

(e)  4  Taunt.  545.  (/)  2  Chit.  Rep.  207. 

(yy)   2  Str.  828. 


347  *^^  T^^  PROCEEDINGS 

this  court  out  of  tlio  custody  of  the  court,  and  send  him  to  the  county 
gaol.(^)  The  court,  however,  will  j];rant  a  habeas  corpus,  to  the  warden 
of  the  Fleet,  to  take  the  body  of  a  debtor  confined  there,  before  a  magis- 
trate, to  be  examined  from  time  to  time,  respecting  a  charge  of  felony,  or 
misdemeanour. (A)  And  where  a  prisoner  is  brought  up  under  a  habeas 
corpus,  issued  at  common  law,  he  may  controvert  the  truth  of  the  return, 
by  virtue  of  the  statute  56  Geo.  III.  c.  100,  §  4.(^')  In  civil 
[  *348  ]  cases,  *thc  writ  of  habeas  corpus  is  used  to  remove  the  defen- 
dant from  one  custody  to  another,  as  from  the  custody  of  the 
sheriff,  or  other  officer  by  whom  he  was  arrested,  into  the  custody  of  the 
marshal  or  warden  ;  or  from  the  custody  of  the  marshal  into  that  of  the 
warden,  or  vice  versa ;  or  from  the  prison  of  an  inferior  court.  If  the 
defendant  be  a  prisoner  in  the  King's  Bench  or  Fleet  prison,  by  process 
of  the  same  court,  he  may  be  brought  up  by  rule  ;  but  if  he  be  in  custody 
under  the  process  of  another  court,  there  must  be  a  habeas  corpius.{a) 

The  writ  of  habeas  corpus,  in  civil  cases,  is  a  judicial  writ,  supposed  to 
issue  out  of  the  King's  Bench, (6)  or  prothonotaries'  office ;  commanding 
the  sheriff,  or  other  officer  to  whom  it  is  directed,  to  have  the  body  of  the 
defendant,  together  with  the  day  and  cause  of  taking  and  detaining  him, 
before  the  court  or  a  judge,  on  a  day  certain  in  term  time,  or  immediate, 
to  ansiver  or  satisfy  the  plaintiff,  or  generally,  to  do  and  receive  what  the 
court  or  judge  shall  consider  of  him.  Hence  it  is  called,  according  to  the 
subject  matter,  a  writ  of  habeas  corpus  ad  respondendum,  ad  satisfacien- 
dum, or  ad  faciendum  et  recipiendum  ;{c)  though  the  latter  is  more  com- 
monly called  a  habeas  corpus  cum  causd :  and  it  is  grantable  of  common 
right,  at  all  times,  whether  in  term  or  vacation,  without  any  motion  in 
court.  (cZ)  [a] 

(g)  2  Str.  828.  (A)  5  Barn.  &  Aid.  Y30. 

[i)  4  Barn.  &  Ores.  136.     6  Dowl.  &  Ryl.  209,  S.  C. 

(«)  Barnes,  385;  and  see  the  case  of  the  Kii)g  v.  Umfrevilh,  T.  31  Geo.  III.  C.  P.  Imp.  C. 
P.  7  Ed.  552. 

{b)  2  Bur.  777.  (c)  Off.  Brev.  110,  112.     Thes.  Brev.  131. 

{d)  1  Lev.  1.     2  xMod.  306. 

[a]  "The  Constitution  of  the  United  States  provides  that  'the  writ  of  habeas  corpus  shall 
not  be  svspended  unless  when,  in  cases  of  rebellion  or  invasion,  the  public  safety  may 
require  it.'  It  has  never  yet  been  suspended  in  the  United  States.  In  January,  1807,  a  bill 
passed  the  Senate  for  its  suspension,  but  was  rejected  in  the  House  of  Representatives  by  a 
large  majority. 

"  By  the  14th  section  of  the  act  of  Congress  of  Sept.  24,  1789,  the  courts  of  the  United 
States  have  power  '  to  issue  writs  of  scire  facias,  habeas  corpus,  and  all  other  writs  not 
specifically  provided  for  by  statute,  which  may  be  necessary  for  the  exercise  of  their 
respective  jurisdictions,  and  agreeable  to  the  principles  and  usages  of  law.  And  that  either 
of  the  justices  of  the  Supreme  Court,  as  well  as  the  judges  of  the  district  courts,  shall  have 
power  to  grant  writs  of  habeas  coipus  for  the  purpose  of  inquiry  into  the  causes  of  commit- 
ment: Provided,  that  writs  of  habeas  corpus  &ha\\  in  no  case  extend  to  prisoners  in  gaol,  unless 
when  they  are  in  custody  under  or  by  colour  of  the  authority  of  the  United  States,  or  are 
committed  for  trial  before  some  court  of  the  same,  or  are  necessary  to  be  brought  into  court 
to  testify.'  In  construction  of  this  act,  it  has  been  held  that  the  phrase,  '  the  writs  shall  be 
agreeable  to  the  principles  and  usages  of  law,'  means  those  general  principles  and  those 
general  usages  which  are  to  be  found,  not  in  the  legislative  acts  of  any  particular  State,  but 
in  that  generally  recognized  and  long  established  law  which  forms  the  substratum  of  the  laws 
of  every  State. 

"  The  Supreme  Court  may  grant  the  writ  of  habeas  corpus  ad  subjiciendum,  also,  the  writ  ad 
proseqitendu)n,  testificandum  et  deliberandum,  but  not  the  writ  ad  respondendum,  nor  ad  satisfacien- 
dum, nor  the  habeas  corpus  cum  cauna.  Habeas  corpus  lies  to  a  Circuit  Court  of  the  United 
States  sitting  in  a  State.  Or  to  the  Circuit  Court  of  the  District  of  Columbia.  As  the  juris- 
diction of  the  Supreme  Court  is  appellate,  it  must  be  shown  to  the  court  that  they  have 


AGAINST  PRISONERS,  ETC.  348 

The  writ  of  habeas  corpus  cum  caus(i{e)  lies  for  tlie  defendant  to  remove 
himself,  or  for  the  plaintiff'  to  remove  him,  from  the  custody  of  the  sheriff 
or  other  officer  by  ^vhom  he  was  arrested,  into  the  custody  of  the  marshal 
of  the  King's  Bench,  or  warden  of  the  Fleet  prison.  At  common  law, 
when  a  defendant  was  arrested,  and  detained  or  charged  in  custody  of  the 
sheriff  or  other  officer,  for  want  of  bail,  upon  mesne  process,  if  the  plaintiff 
did  not,  within  two  terms,  cause  him  to  be  brought  up,  by  writ  of  Itahcas 
corpus  cum  causa,  and  committed,  so  that  he  might  declare  against  him  in 
custody  of  the  marshal  or  warden,  the  dcfemlant  was  entitled  to  his  dis- 
charge, on  common  bail  or  appearance. (j^)  This  mode  of  proceeding  was 
altered  by  the  statute  4  &  5  W.  <&  M.  c.  21,  §  3,  which  enables  the  plain- 
tiff to  declare  against  the  defendant,  in  custody  of  the  sheriff,  or  other 

(c)  Append,  ("hap.  XV.  ?  8,  9. 

(/T)  R.  M.  IGJ4,  g  11.  li.  E.  5  W.  &  M.rcy.  3,  §  1,  («),K.  B.  1  Wils.  120.  2  Bur.  Uiol. 
1  Durnf.  &  East,  192. 

power  to  award  the  writ  before  it  will  be  granted.  The  authority  of  the  United  States 
courts  to  grant  the  writ,  is  restricted  by  the  act  giving  the  power  to  cases  where  the  prisoner 
is  confined  under  or  by  colour  of  the  authority  of  tlie  United  Slates,  or  is  necessary  to  be 
brought  in  to  testify.  It  extends  to  inciuirj-  into  the  cause  of  commitment  of  a  person  in 
custody  under  a  commitment  of  the  Circuit  Court  of  the  District  of  Columbia  ;  or  any  other 
United  States  court.  It  is  said  of  tliis  writ  in  ex jntrle  Tobias  Watkinx^  'tlie  Supreme  Court 
will  not  grant  a  habeas  corjnis  to  a  prisoner  in  confinement  under  conviction  by  the  Circuit 
Court  of  the  United  States  of  the  District  of  Columbia,  when  it  is  alleged  that  the  proceed- 
ings in  that  court  were  coram  non  juilicc ;  the  power  of  the  Supreme  Court  to  award  writs  of 
habeas  corpus,  is  conferred  expressly  on  the  court  by  the  fourteenth  section  of  the  judi- 
ciary act,  and  has  been  repeatedly  exercised ;  no  doubt  exists  respecting  the  power;  no 
law  of  the  United  Stales  prescribes  the  cases  in  which  the  writ  shall  be  issued,  nor  the  power 
of  the  court  over  the  party  brought  up  by  it;  the  terra  is  used  in  the  Couslitulion  as  one 
which  was  well  understood;  and  the  judiciary  act  authorizes  the  Supreme  Court  and  all  the 
courts  in  the  United  States  to  issue  the  writ,  '  for  the  purpose  of  inquiring  into  the  cause  of 
the  commitment.'  The  writ  o(  habeas  corpus  is  a  high  prerogative  writ  known  to  the  common 
law;  the  great  object  of  which  is  the  liberation  of  those  who  may  be  imprisoned  without 
sufficient  cause;  it  is  in  the  nature  of  a  writ  of  error  to  examine  the  legality  of  a  commit- 
ment; it  brings  up  the  prisoner  with  the  cause  of  his  confinement,  and  the  court  can  un- 
doubtedly inquire  into  the  sufficiency  of  that  cause  ;  but  if  that  cause  be  the  judgment  of  a 
court  of  competent  jurisiiiction,  esi)ecially  a  judgment  withdrawn  by  law  from  the  revision 
of  the  Supreme  Court,  it  is  conclusive,  and  they  will  not  inquire  into  it.'  The  writ  does  not 
lie  to  bring  up  a  person  confined  in  the  prison  bounds  upon  a  capias  ad  satisfaciendum  issued 
in  a  civil  suit.  The  Supreme  Court  will  not  grant  ahabr'as  corpus  when  the  party  has  beea 
committed  for  contempt  by  a  court  of  the  United  States  of  competent  jurisdiction  ;  and  if 
granted,  the  court  will  not  inquire  into  the  sufficiency  of  the  cause  of  the  commitment;  the 
adjudication  of  the  court  below  is  a  conviction,  and  the  commitment  in  consequence  is  aa 
execution  ;  and  the  exercise  of  the  power  of  revising  the  case  on  a  habeas  corpus,  would  be 
the  exercise  of  an  appellate  jurisdiction  in  criminal  cases,  wiiich  is  an  authority  not  granted 
by  the  laws  of  the  United  States,  except  by  a  certificate  that  the  opinions  of  the  judges  are 
opposed,  and  the  court  will  not  do  indirectly  what  they  cannot  do  directly.  Upon  a  habeas 
corpus,  the  court  are  only  to  inquire,  whether  the  warrant  of  commitment  with  the  evidence 
returned,  states  a  sufficient  prol)able  cause  to  believe  that  the  jicrson  charged  has  committed 
the  offence  stated.  If  the  court  go  into  an  examination  of  the  evidence  upon  which  tb« 
commitment  was  grounded,  it  is  unimjiortant  whether  the  commitment  be  regular  in  point 
of  form  or  not ;  they  will  proceed  to  do  what  the  court  lielow  ought  to  have  done.  On 
a  return  to  a  habeas  corpus  before  the  Circuit  Court,  the  prisoner  was  discharged  on  the 
ground  that  the  writ  of  capias  by  which  he  was  detained,  had  imitroperly  issued  ;  Init  there 
appearing  to  the  court  upon  the  hearing,  a  sufficient  ground  for  his  arrest,  he  was  ordered 
into  custody  upon  a  bench  warrant.  An  application  to  the  Supreme  Court  for  a  habeas  cor- 
pus to  discharge  from  this  latter  custody,  was  refused.  A  discharge  on  habeas  corpus,  dis- 
charges the  party  only  from  such  process  under  the  same  indictment,  or  a  new  one.  Neither 
the  Supreme  Court  nor  anj'  other  court  of  the  United  States,  or  judge  thereof,  can  issue  a 
habeas  corpus  to  bring  up  a  prisoner  who  is  in  custody  under  sentence  or  execution  of  a  State 
court  under  criminal  or  civil  process,  for  any  other  purpose  than  to  be  used  as  a  witness.* 
IngersoU  on  Habeas  Corpus,  S-l-.'SS.  Vaux  on  Hab.  Corp.  Recorder's  Decisions,  p.  168 
Phila.  184G.     4  Amer.  Law  Reg.  257.  Phila.  1856. 


348  OF  THE  niOCEEDINGS 

officer  wlio  arrcsteil  liim.(^^)  He  is  still  at  liberty,  however,  to  remove 
the  (Icfeiiihuit,  by  writ  of  habeas  coi'jnis  cum  causa,  from  the  eustotlj  of 
the  sherill"  or  other  officer,  into  the  custody  of  the  marshal  or  warden,  at 
any  time  before  or  after  judgment, (A)  This  writ  also  lies  for  the  bail  of 
the  defendant  to  bring  him  up,  and  surrender  him  in  their  discharge,  to 
the  custody  of  the  marslial'of  the  King's  Bench,  or  warden  of  the  Fleet 
prison ;  and  may  be  granted,  in  the  King's  Bench,  whether  the  defendant 
be  in  custody  in  a  cn'iV  suit,  or  on  a  criminal  account  :(^)  and 
[  *349  ]  under  it,  we  have  *seen,(«)  the  court  will  either  commit  the  de- 
fendant to  the  custody  of  the  marshal  or  warden,  or  remand  him 
to  his  former  custody. 

The  writ  of  habeas  corpus  cum  causd  should  be  directed  to  the  sheriff 
or  other  officer  in  whose  custody  the  defendant  is  detained ;  and  there  is 
an  old  rule  of  both  courts,(^)  directing  it  to  be  made  returnable  in  court, 
at  a  day  certain  in  term,  unless  directed  to  the  sheriffs  of  London  or  3Iid- 
dlesex,  or  unless  it  be  to  deliver  over  the  defendant  in  discharge  of  his 
bail.  But  this  rule  having  fallen  into  disuse,  the  writ  is  now  made  re- 
turnable, before  the  chief  justice  at  his  chambers,  immediate :  and  under 
it  the  defendant  should  be  brought  in  custody,  according  to  the  writ,  in 
due  and  convenient  time,(c)  without  being  permitted  to  wander  abroad, 
under  pretence  of  such  writ  :[d)  And  though  the  writ  be  returnable  before 
the  chief  justice,  yet  any  of  the  other  judges,  in  his  absence,  may  commit 
the  defendant  to  the  prison  of  the  court.(e)  A  tipstaff  is  entitled  to  take 
a  fee  of  six  shillings,  and  no  more,  for  conducting  a  prisoner  from  the 
judge's  chambers  to  the  King's  Bench  :(/)  And  the  usual  allowance  to  the 
sheriff,  for  bringing  up  a  defendant  on  a  habeas  corpus  from  the  county 
gaol,  is  one  shilling  per  mile  ;{fj)  and  if  the  defendant  will  not  pay  the 
sheriff  his  charges,  the  court  will  remand  him,(/i7i) 

When  the  defendant,  being  charged  with  process  issuing  out  of  the  court 
of  King's  Bench,  is  removed  before  declaration,  from  the  custody  of  the 
sheriff  or  marshal  to  the  Fleet  prison,  the  plaintiff  cannot  proceed  further  in 
that  court ;  but  must  either  declare  against  him  in  the  Common  Pleas,  or 
remove  him  into  the  custody  of  the  marshal,  by  writ  of  habeas  corpus  ad 
respondendum,{ii)  in  order  to  charge  him  with  a  declaration. (Z:)  So  where 
the  defendant,  being  charged  with  process  issuing  out  of  the  court  of  Com- 
mon Pleas,  is  removed  before  declaration,  from  the  custody  of  the  sheriff  or 
warden  "to  the  King's  Bench  prison,  the  plaintiff  cannot  proceed  further  in 
the  latter  court ;  but  must  either  declare  against  him  in  the  King's  Bench, 
or  remove  him  into  the  custody  of  the  warden,  by  writ  of  habeas  corpus 
ad  respondenduyn.  This  writ  also  lies  for  a  tliird  person  to  remove  a  de- 
fendant from  the  Fleet,  or  prison  of  an  inferior  court,  in  order  to  charge 
him  with  a  declaration  in  the  King's  Bench. (Z)  But  then,  there  must  be 
something  to  charge  him  with,  either  in  the  body  of  the  habeas  corpus  or 

{gg)  Ante,  342. 

{h)  1  Salk.  354.     2  Str.  1262.     Say.  Rep.  154.     3  Bur.  1875. 
(t)  7  Durnf.  &  East,  226.     15  East,"78.  (a)  Ante,  286. 

(6)  R.  M.  1654,  g  7,  K.  B.,  §  10,  C.  P.  (c)  3  Bur.  1875,  6. 

{d)  R.  IVI.  1654,  \  7,  K.  B. ;  and  see  R.  M.  28.     Car.  11.  K.  B.  R.  M.  1654,  |  10,  C.  P. 
(e)  Barnes,  20.  ( /")  5  Barn.  &  Aid.  266.  (^/Barnes,  377. 

{hh)  1  Str.  308.     2  Str.  1262.     Cas.  Pr.  C.  P.  110. 
{ii)  Append.  Chap.  XV.  ^  10,  &c. 
(k)b  Durnf.  &  East.  36.     Barnes,  384,  5,  402. 

(I)  3  Bac.  Abr.  2.     2  Lil.  P.  R.     4  Sty.  P.  R.  330.     1   Mod.  235.     2  Mod.  193.  S.  C.     1 
Salk.  351.     2  Str.  936.     2  Bur.  1049. 


AGAINST  PRISONERS,  ETC.  349 

return,  or  ready  in  court  upon  bringing  him  up  :(m)  And  under  this  "^rit, 
a  defendant  may  be  committed  to  tlic  custody  of  the  marshal,  on  a  special 
original. («)  The  writ  of  habeas  corpun  ad  responleiuhnn  should  be  di- 
rected to  the  tvanlcn  oHhc  Fleet,  or  keeper  of  an  inferior  prison,  returnable 
at  a  day  certain  in  court;  and  "will  be  as  good  cause  of  detainer, 
as  a  *writ  of  capias  ad  respondendum. {a)  But  this  writ  does  [  *350  ] 
not  lie  for  the  plaintiff  in  an  inferior  court,  to  remove  the  body 
of  the  defendant  into  the  King's  Bench,  to  answer  to  a  new  action  there 
for  the  same  debt. (6)  And  a  prisoner  under  criminal  process  in  the  house 
of  correction,  (S:c.  cannot  be  brought  up  by  Jialeas  corpus  ad  respondendum, 
for  the  purpose  of  being  charged  with  a  declaration  on  a  bailable  writ, 
and  re-committed  to  his  former  custody,  so  charged. (c) 

When  the  defendant  is  removed  after  declaration,  from  the  custody  of 
the  sheriff*  or  marshal,  to  the  Fleet  prison,  the  plaintiff"  should  proceed  to 
judgment  against  him  in  the  King's  Bench,  and  then  remove  him  into  the 
custody  of  the  marshal,  by  writ  of  habeas  corpus  ad  satisfaciendum,  in 
order  to  charge  him  in  execution. (fZ)  And  so,  vice  versd,  if  a  prisoner  in 
the  Fleet,  charged  with  a  declaration  in  the  Common  Pleas,  remove  him- 
self by /mJe««  corjnis  to  the  custody  of  the  marshal,  the  plaintiff"  must  pro- 
ceed to  judgment  in  the  Common  Pleas,  and  then  carry  him  by  habeas  cor- 
jnis ad  satisfaciendum,  to  charge  him  in  execution. ((')  This  writ  is  also 
used  as  the  ordinary  mode  of  charging  the  defendant  in  execution,  in  the 
Common  Pleas,  when  a  prisoner  in  the  Fleet :  and  it  should  be  directed 
and  returnable  in  the  same  manner  as  the  writ  of  habeas  corpus  ad  respon- 
dendum ;  and  the  number  of  the  judgment  roll  indorsed  thereon,  by  the 
attorney  who  sues  it  out.(/)  But  where  the  defendant,  a  prisoner,  after 
the  issuing  of  a  writ  of  habeas  corpus  for  bringing  him  up  to  be  charged 
in  execution,  sues  out  and  obtains  the  allowance  of  a  writ  of  error,  he  can- 
not be  charged  in  execution,  but  must  be  remanded  to  his  former  custody. (^) 

Under  one  or  other  of  these  writs,  a  defendant  may  be  removed  from 
any  civil  custody,  into  that  of  the  marshal  or  warden.  If  he  be  already 
in  custody  of  the  sheriff,  under  process  of  the  same  court,  he  has  only  to 
sue  out  a  writ  of  habeas  corpus  cum  causd,  and  deliver  it  to  the  sheriff"; 
under  which  he  will  bo  removed,  as  a  matter  of  course,  on  paying  the 
usual  fees  :  And  he  may  be  removed,  in  like  manner,  from  the  prison  of 
an  inferior  court.  But  if  he  be  in  custody  of  the  sheriff,  under  the  process 
of  another  superior  court,  a  bailable  writ  must  be  taken  out  against  him, 
in  the  court  to  the  prison  of  which  it  is  intended  to  remove  him,  and  lodged 
in  the  sheriff"s  office,  as  a  foundation  for  his  commitment  on  the  habeas 
corpus.  AVhen  he  is  in  custody  of  the  marshal  or  warden,  under  process 
of  both  courts,  he  may  be  removed,  as  a  matter  of  course,  on  suing  out  a 
writ  of  habeas  corpus  cum  causd  ;  but  where  ho  is  detained  upon  process 

( m)  2  Lil.  p.  R.  35r>.  (n)  3  Barn.  &  Aid.  601. 

(a)  R.  M.  1G54,  I  1,  K.  B.  ^  10,  C.  P. 

(b)  Cowp.  116;  and  see  Cas.  Pr.  C.  P.     5  Pr.  Reg.  216. 

(c)  9  East,  154.     4  Dowl.  &  Ryl.  271. 

(d)  1  Sid.  100.  R.  T.  2  Geo.  "l.  (h),  K.  B.  2  Str.  1153.  Barnes,  3S5 ;  and  see  Append. 
Chap.  XV.  g  15,  &c. 

(e)  R.  T.  2  Geo.  I.  (6),  K.  B. 

(/)  R.  M.  1654,  ?  7.     R.  T.  2  Geo.  I.  (f>),  K.  B.     R.  M.  1C54,  ?  10,  C.  P. 

((j)  1  Barn.  &  AJd.  676.  And  see  6  Moore,  200.  3  Brod.  &  Binp.  0.1,  S.  C,  where  the 
court  of  romnion  Pleas,  under  particular  circiinisfances,  discharged  tiie  rule  for  an  attach- 
ment against  the  warden,  for  disobeying  a  writ  of  habetu  corpus,  on  his  paying  all  costs. 


350  OF  THE  PROCEEDINGS 

of  another  court  only,  the  practice  is,  to  sue  out  a  bailable  writ 
[  *351  ]  against  him,  and  put  *in  bail  above  thereon,  in  the  court  to  the 

prison  of  which  he  is  intended  to  be  removed ;  and  then  to  bring 
a  writ  of  habeas  corpus  cum  causa,  in  order  to  surrender  him  in  discharge 
of  his  bail :  or  he  may  be  removed,  in  term  time,  by  writ  of  habeas  corpus 
ad  respondendum,  returnable  in  court  on  a  day  certain;  upon  which  he 
must  be  charged  in  court  with  a  declaration,  an  affidavit  being  first  made 
of  a  bailable  cause  of  action. 

If  a  prisoner  be  removed  from  the  custody  of  the  warden  of  the  Fleet 
to  the  King's  Bench  prison,  by  writ  of  habeas  corpus,  he  must  remain  in 
such  prison,  and  shall  not  be  set  at  liberty,  until  he  has  paid  the  prison  fees 
due  to  the  warden  of  the  Fleet. («)  On  a  removal  by  writ  of  habeas  corpus 
ad  respondendum  to  the  King's  Bench  or  Fleet  prison,  the  prisoner  cannot 
be  removed  elsewhere,  till  he  has  answered  to  the  cause  depending  against 
him  in  the  King's  Bench  or  Common  Pleas  :(5)  And  it  is  a  general  rule, 
applicable  to  all  writs  of  habeas  corpus  returnable  in  the  King's  Bench, 
that  "  every  prisoner,  who,  by  virtue  thereof,  shall  be  committed  to  the 
custody  of  the  marshal,  shall  remain  there  for  t^vo  days  next  after  such 
commitment,  notwithstanding  any  other  writ  of  habeas  corpus,  to  the  said 
marshal  delivered  and  allowed,  "(c) 

In  an  action  for  an  escape  out  of  execution,  the  declaration  alleged  that 
the  prisoner  was,  by  habeas  corpus,  brought  before  a  judge  of  the  King's 
Bench,  and  by  him  committed  to  the  custody  of  the  marshal,  "  as  by  the 
said  writ  of  habeas  corpus,  and  the  said  commitment  thereon,  now  remain- 
ing in  the  said  court,  more  fully  appears  ;"  and  the  court  of  Common  Pleas 
held,  1st,  that  evidence  of  a  commitment  by  a  judge  of  the  King's  Bench, 
not  filed  of  record,  would  not  support  the  action  ;  and  2dly,  that  the  above 
allegation,  even  if  unnecessary,  must  be  proved  as  laid.(cZ)  But  in  a  subse- 
quent case(e)  which  was  an  action  against  the  marshal,  for  an  escape  on 
mesne  process,  it  being  alleged  in  the  declaration  that  the  prisoner  was 
arrested  on  mesne  process,  and  brought  before  a  judge  at  chambers,  by  virtue 
of  a  writ  of  habeas  corpus,  and  was  by  him  thereupon  committed  to  the  cus- 
tody of  the  marshal,  as  by  the  record  thereof,  noio  remaining  in  the  court 
of  King's  Bench,  appears,  ^c.  it  was  determined  by  the  court  of  King's 
Bench,  that  such  allegation  is  either  impertinent  and  surplusage,  for,  pro- 
perly speaking,  such  documents  are  not  records,  nor  capable  of  becoming 
so ;  or  considering  them  as  quasi  of  record,  the  allegation  is  sufficiently 
proved,  by  the  production  of  them  from  the  office  of  the  clerk  of  the  papers 
of  the  King's  Bench  prison,  with  whom  they  are  properly  deposited.  And 
that  court  will  not  compel  the  marshal  to  affile  of  record  a  writ  of  habeas 
corpus  cum  causa,  by  virtue  of  which  a  person  is  committed  to  his  custody 
in  execution. (/)   In  the  Common  Pleas,  the  distinction  seems  to  be  between 

commitments  by  a  single  judge,  on  mesne  process,  and  commit- 
[  *3o2  ]  ments  by  the  court,  in  execution;  the  one  is  said  to  *be  a  matter 

of  record,  the  other  not ;  for  the  court  can  only  act  by  record  •.{aa) 
and  accordingly,  where  the  bill,  in  an  action  against  the  warden  for  an 
escape,  alleged  that  the  prisoner  was  brought  to  the  bar  of  this  court  by  the 

[a]  R.  H.  14  Car.  I.  K.  B. :  and  see  8  Moore,  157.     1  Bing.  255,  S.  C.     Ante,  53,  (/). 

(b)  1  Salk.  350.  '  (c)  R.  H.  5  W.  &  M.  K.  B. 
{d)  3  Bos.  &  Pul.  456.     5  Esp.  Rep.  8,  S.  C. 

(e)  5  East,  440 ;  and  see  3  Barn.  &  Cres.  2.     4  Dowl.  &Ryl.  624,  S.  C. 

(/)  2  Maule&  Sel.  202. 

{aa)  Per  Blosset,  Serj.  arg.    2  Moore,  562, 3. 


AGAINST  PRISONERS,  ETC.  352 

defendant,  by  virtue  of  a  writ  o^  habeas  corpus,  vixid  was  by  the  same  court 
re-committed  to  prison  in  execution,  as  by  the  commitment  more  fully  and 
at  large  appears ;"  the  plaintiff,  on  special  demurrer,  assigninf]:  for  cause  that 
it  was  not  averred  in  the  bill  that  the  commitment  was  of  record,  had  leave 
to  amend,  on  payment  of  costs. (W*)  The  prison  books  of  the  King's  Bench 
and  Fleet  prisons,  though  admissible  evidence  to  prove  the  period  of  the 
commitment  and  discharge  of  a  prisoner,  are  not  admissible  to  prove  the 
cause  of  his  commitment.(c) 


When  a  defendant  is  committed  to  the  custody  of  the  marshal, (t?)  or  has 
put  in  bail  upon  a  cepi  corjms^ie)  or  habeas  corpi(s,{f)  the  plaintiff,  or  any 
other  person,  may  exhibit  a  bill,  and  declare  against  him  in  the  King's 
Bench,  as  a  prisoner  of  the  court,  in  whatever  action,  and  charge  him  with 
whatever  injury  he  thinks  proper.(^) 

AVhen  the  defendant  is  in  actual  custody  of  the  marshal,  he  has  the 
privilege  of  the  court,  and  cannot  be  compelled  to  answer  elsewhere ;  so 
that  if  he  were  not  to  answer  here,  none  could  have  remedy  against  him. (A) 
And  even  where  he  is  not  in  actual  custody,  yet  still,  when  he  appears  and 
puts  in  bail,  he  is  supposed  to  be  in  custody  of  the  marshal,  and  may  be 
proceeded  against  accordingly.  But  an  appearance  alone,  without  bail  is 
not  sufficient  ;{i)  it  being  clearly  settled,  that  when  the  defendant  is  not  in 
actual  custody,  no  action  can  be  legally  commenced  against  him  as  a 
prisoner,  until  he  has  filed  bail.(^)  It  is  the  entry  of  bail  in  such  case, 
which  gives  this  court  jurisdiction  :{l)  and  therefore,  where  no  bail  is 
entered  for  the  defendant,(?n)  or  where  bail  is  entered  for  him  by  a  wrong 
namc,(?t)  or  there  are  several  defendants,  and  no  bail  is  entered  for  one  of 
thcm,(o)  the  proceedings  are  void,  and  coram  nan  judice.  But  it  is  said, 
that  by  the  practice  of  the  King's  Bench,  though  the  defendant's  bail  be 
not  taken  and  entered  till  the  last  day  of  term,  and  the  bill  be  put  in 
before,  any  time  that  term,  it  is  well  enough :  yet  from  the  time 
of  the  bail,  the  defendant  *is  answerable  as  in  custody  of  the  [  *353  ] 
marshal,  and  not  before,  in  strictness  of  law.(a) 

The  bill  against  a  prisoner,  in  the  King's  Bench,  is  a  complaint  in 
writing,  supposed  to  be  exhibited  to  the  court,  but  really  filed,  when  neces- 
sary, with  the  clerk  of  the  declarations  in  the  King's  Bench  office ;  and, 
except  where  the  action  is  brought  for  a  trespass  committed  in  Middle- 
8ex,{b)  or  other  county  where  the  court  sits,  or  the  defendant  is  a  prisoner 
in  custody  of  the  sheriff,  kc,  should  allege  the  defendant  to  be  in  custody 

(bb)  2  Moore,  561.    8  Taunt.  512,  S.  C. 

(c)  3  Bos.  &  Pul.  188.  And  see  further,  as  to  the  cviilcnce  in  an  action  against  the  u-ar- 
diii,  for  an  escape,  9  Moore,  778. 

(f^)  7  Hen.  VI.  42.     27  Hen.  VI.  G,  a.     2  Inst.  23.     4  Inst.  72.     2  Bulst.  207,  8. 

(e)  31  Hen.  VI.  10.  32  Hen.  VI.  4.  21  Hen.  VII.  33.  Hob.  264,  5.  Cro.  Jac.  450. 
Godb.  339.     Cro.  Car.  330. 

(  /•)  Cro.  Jac.  621.     1  Salk.  352. 

(ff)  R.  E.  15  Geo.  11.  rry.  1.  K.  B.     Cowp.  455.     2  Wm?.  Sannd.  5  Ed.  1,  (1). 
»  (/()  2  Bulst.  123.     Carth.  378.     1  Salk.  1,  2,  S.  C.     2  Bur.  1051.     1  Durnf.  &  East,  592. 

(0  7  Hen.  VI.  41.     Cro.  Eliz.  605. 

{k)  I  Sid.  373.     2  Keb.  368,  S.  C.     1  Vent.  135.     2  Leb.  13.     2  Keb.  790,  S.  C. 

(7)  1  Vent.  135.  (m)  Cro.  Eliz.  605.     Moor,  694.     Cro.  J.ac.  620. 

(«)  Cro.  Eliz.  223.  (o)  Poph.  145. 

(a)  Hob.  70.     Cro.  Jac.  384.    Jenk.  295,  S.  C.  (6)  Djer,  118,  (a). 


353  OF  THE  PROCEEDINGS 

of  the  marslial.  When  the  defendant  is  in  actual  custody,  the  bail  should 
be  filed,  before  a  copy  of  it  is  delivered  to  the  defendant,  or  left  for  him 
Avitli  the  gaoler  or  turnkey  :[ec)  the  delivery  of  a  declaration  against  a 
prisoner,  though  in  due  time,  being  a  nullity,  if  there  be  no  bill  filed 
against  him,  and  he  is  entitled  to  his  discharge. (rZt/)  But  when  a  prisoner 
is  in  custody  upon  process  by  original,  it  is  sufficient  to  deliver  a  declara- 
tion thereon,  without  filing  a  hill  against  him.(ee)  And  a  declaration 
against  a  defendant  at  large  upon  hail  is  good,  although  a  bill  has  not  been 
filed  ;  because,  if  the  bringing  of  a  writ  of  error,  or  any  other  reason, 
make  the  filing  of  a  bill  necessary,  it  may  be  filed  at  any  time.(/) 

When  the  defendant  is  in  the  actual  or  supposed  custody  of  the  marshal, 
upon  a  bill  of  3Iiddlesex  or  latitat,  &c.,  the  hill  exhibited  against  him  in 
the  King's  Bench,  as  a  prisoner  of  the  court,  is  considered  as  the  com- 
mencement of  the  suit,  and  the  bill  of  Middlesex  or  latitat,  &c.,  merely  as 
process  to  bring  him  into  court. (^)  Such  process  therefore,  we  have 
seen, (A)  might  formerly  have  been  sued  out,  though  the  defendant  could 
not  have  been  arrested  upon  it,  before  the  cause  of  action  ;  and  the  plain- 
tiflf  is  still  allowed  to  give  in  evidence  a  cause  of  action  arising  after  it  is 
sued  out,  and  before  the  exhibiting  of  the  bill. 


A  prisoner,  in  actual  custody  of  the  marshal  or  warden,  may  be  pro- 
ceeded against  by  the  same  plaintifi"  at  whose  suit  he  was  arrested,  or 
charged  in  custody  by  a  third  person  :  and  the  same  plaintiff  may  proceed 
against  him,  either  for  the  cause  of  action  expressed  in  the  process,  or  for 
a  different  cause  of  action. 

In  the  King's  Bench,  when  a  defendant  is  committed  to  the  custody  of 
the  marshal,  on  a  bill  o^  Middlesex  or  latitat,  kc,  or  on  an  attachment  of 
privilege, (z)  the  plaintiff  must  in  due  time  file  a  hill{h)  against  him,  as  a 
prisoner  of  the  court,  with  the  clerk  of  the  declarations  in  the 
[  *354  ]  King's  Bench  *office;  and  deliver  a  copy  of  it  to  the  defendant, 
or  turnkey  at  the  King's  Bench  prison.  But  when  a  defendant 
renders  in  discharge  of  his  bail,  after  a  declaration  has  been  filed  condition- 
ally, and  notice  served  upon  him,  and  rule  to  plead  given,  it  is  not  necessary 
to  deliver  another  declaration  for  the  defendant  in  custody.(a)  If  a  prisoner 
be  turned  over  from  one  custody  to  another,  it  is  considered  as  a  continu- 
ance of  the  same  imprisonment  :(5)  Therefore,  where  a  defendant,  having 
been  taken  or  charged  in  custody  of  the  sheriif  or  other  officer  by  mesne 
process,  is  afterwards  removed  by  haheas  corpus,  and  committed  to  the 
custody  of  the  marshal,  the  proceedings  against  him  are  to  be  reckoned 
from  the  time  of  his  having  been  so  taken  or  charged  in  custody. (<?)  In 
general,  however,  it  is  a  rule,  that  when  the  defendant  is  committed  to  the 

(cc)  R.  E.  5  W.  &  M.  reg.  3,  |  1,  {h),  K.  B.     8  Mod.  226,  7. 

{(Id)  4  East,  16.     1  Chit.  Rep.  389.     Ante^  343.  {ee)  4  East,  17. 

(/)  Say.  Rep.  49. 

{g)  1  Wils.  40,  144,  &c.     2  Bur.  960.     2  Wms.  Saund.  5  Ed.  1,  (1) ;  but  see  3  Bur.  1244. 
(h)  Ante,  145.  (i)  Cro.  Car.  330. 

{k)  4  East,  16.     Append.  Chap.  XV.  §  19. 
{a)  1  Chit.  Rep.  720. 

(i)  1  Bur.  439.     2  Ken.  173,  S.  C.     5  Durnf.  &  East,  36.     6  Durnf.  &  East,  524. 
(c)  R.  H.  26  Geo.  III.  K.  B. ;  and  see  R.  T.  26  &  27  Geo.  II.  §  11,  in  Scac.  accord.    Man.  Ex. 
Append.  216. 


AGAINST  PRISONERS,  ETC.  354 

custody  of  the  marshal,  upon  a  cepi  corjjUS,{d)  or  habeas  cor]JUS,{e)  &c., 
before  declaration,  the  phaintiff  sliould  declare  against  him,  in  the  King's 
Bench,  before  the  end  of  the  term  next  after  sucli  commitment ;  or,  in  case 
of  a  surrender  to  the  marshal  in  discliarge  of  bail,  before  the  end  of  the 
term  next  after  such  surrender,  and  due  notice  thereof.( //')  But  the  term  of 
the  commitment  or  surrender  is  to  be  accounted  one,  altliough  the  defend- 
ant was  not  committed  or  surrendered  till  the  last  day  of  vacation. (^) 
The  defendant  was  formerly  brought  into  court  by  rule,  in  order  to  be 
charged  with  a  declaration  ;  there  being  no  occasion  for  a  habeas  corpus, 
when  it  was  in  the  same  court  :(/<)  but  this  practice  is  now  disused.  And 
there  is  no  occasion  for  an  affidavit  of  the  delivery  of  the  declaration, 
where  the  defendant  is  in  custody  of  the  marshal. (/) 

In  the  Common  Pleas,  if  the  defendant  be  committed  to  prison  liy  pro- 
cess out  of  this  court,  or  habeas  corpus,  the  prisoner  entering  his  appear- 
ance with  the  prothonotary,  in  case  of  a  plaint  or  attachment  of  privilege, 
or  with  the  filacer  on  other  process,  and  giving  rules  to  declare,  the  ])lain- 
tiff  not  declaring  before  the  end  of  the  next  term  after  the  comniiimcnt, 
the  defendant,  in  reference  thereunto,  is  entitled  to  be  discharged  of  his 
imprisonment  by  supersedeas,  in  the  end  of  the  next  term ;  with  liberty 
for  the  plaintiff  to  declare  upon  that  appearance,  the  next  terra  after  that 
at  the  furthest.(/c)  And  "if  any  defendant  shall  render  him  or  herself, 
or  be  rendered  to  the  Fleet  prison,  in  discharge  of  his  or  her  bail,  at  the 
suit  of  any  plaintiff,  where  no  further  proceedings  by  declaration  have 
been  had  against  such  defendant  so  rendered,  before  such  render,  unless 
the  plaintiff  shall  declare  against  such  defendant  Avithin  two  terms  after 
such  render,  such  defendant  may  be  discharged  out  of  custody 
by  supersedeas,  to  be  allowed  *by  one  of  the  justices  of  this  [  *355  ] 
court,  if  cause  shall  not  be  shown  to  the  contrary,  by  the  plain- 
tiff or  his  attorney,  upon  notice  to  either  of  them  given  by  the  defendant's 
attorney  or  agent,  and  oath  made  of  such  notice  given. "(a) 

It  was  formerly  necessary  in  this  court,  as  well  as  in  the  Exchequer,  to 
bring  up  the  defendant  by  habeas  corpus,  to  the  bar  of  the  court,  in  order 
to  charge  him  with  a  declaration  at  the  suit  of  the  plaintiff.(/>)  But  now, 
by  the  statute  8  &  0  W.  III.  c.  27,  §  13,  for  the  more  easy  and  quick 
obtaining  of  judgment  against  prisoners  in  the  Fleet,  "  it  shall  and  may 
be  lawful  for  any  person  or  persons,  having  cause  of  action  against  any 
prisoner  or  prisoners  committed  to  the  said  prison  of  the  Fleet,  after  filing 
or  entering  a  declaration  in  such  action  with  the  proper  officer,  to  deliver 
a  copy  of  such  declaration  to  the  defendant  or  defendants  in  any  personal 
action,  or  to  the  turnkey  or  porter  of  the  said  prison  :(c')  and  al'ter  rule 
given  thereupon  to  plead,  to  be  out  in  eight  days  at  most  after  delivery  of 
such  copy  of  declaration,  and  affidavit  made  of  such  delivery, (tZti)  before 

(,/)  R.  M.  1654,  2  11.  R.  E.  6  W.  &  M.  rcg.  3,  I  1,  (a),  K.  B.  G  Mod.  254.  R.  T.  2  Geo.  I. 
K.  B.  and  note  («).     8  Mod.  306. 

(e)  R.  M.  16  Car.  II.  (6),  K.  B.     6  Mod.  21. 

(/)  R.  H.  26  Geo.  III.  K.  B. ;  and  see  R.  T.  1  Ann.  rcg.  2,  K.  B. 

(g)  R.  T.  2  Geo.  I.  (a),  K.  B. 

(h)  2  Sel.  P.  2  VA.  259.     2  Bur.  1051,  2.     AiUe,  348. 

(t)  R.  E.  5  W.  &  M.  rcg.  3,  ?  2,  (n),  K.  B.     1  (M.it.  Rep.  300. 

H)  R   M.  1654,  ?  15,  C.  P. ;  and  see  R.  II.  14  &  15  Car.  II.  reg.  3,  C.  P. 

[a)  R.  E.  8  Geo.  I.  C.  P.  {(>)  R.  H.  14  &  15  Car.  II.  reg.  3,  C.  P. 

(c)  For  the  beginning  of  a  declaration  against  a  prisoner  in  custody  of  the  warden,  iu  C. 
P.  see  Ajtpcnd.  Cliap.  XV.  g  21. 

{(Id)  Id.  I  22. 


355 


OF  THE  PROCEEDINGS 


the  Lord  Chief  Justice  or  one  other  of  the  justices  of  the  Common  Pleas, 
or  before  the  Lord  Chief  Baron  or  some  other  of  the  barons  of  the  coif  of 
the  Exchequer  at  Westminster,  to  sign  judgment  in  such  action  against 
such  defendant  or  defendants,  as  if  he  or  they  had  been  actually  charged 
at  the  bar  of  the  Common  Pleas  or  Exchequer,  with  such  action."  The 
practice,  as  regulated  by  this  statute,  is  to  make  two  copies  of  the  declara- 
tion, and  take  the  same  to  the  prothonotaries'  office,  where  the  clerk,  on 
being  paid  for  entering  the  declaration,  will  mark  both  copies  ;  one  of 
whicli  should  then  be  delivered  to  the  turnkey  at  the  Fleet  prison ;  and  if 
he  acknowledge  the  defendant  to  be  his  prisoner  at  the  plaintiff's  suit,  an 
affidavit  is  made  of  the  delivery,  and  sworn  before  a  judge,  the  other  copy 
of  the  delivery  being  annexed  thereto ;  after  which  the  affidavit  is  taken 
to  the  secondaries'  office,  and  the  secondary  will  give  a  rule  thereon,  for 
the  defendant  to  appear  and  plead :  and  if  he  do  not  plead  within  the 
time  limited  by  the  rule,  the  plaintiff  may  sign  judgment,  and  give  notice 
of  inquiry,  if  necessary,  to  the  prisoner  or  turnkey,  and  proceed  as  in 
other  cases. (t;)  The  declaration,  however,  must  be  entered  with  the  pro- 
thonotaries, before  it  is  delivered  to  the  defendant :(/)  And  where  the 
defendant  has  put  in  special  bail  by  attorney,  and  afterwards  renders  in 
discharge  of  his  bail,  the  declaration  it  seems  should  be  delivered  to  him- 
self personally,  or  the  turnkey  of  the  prison,  and  not  to  his  attorney. (^) 
So  where  the  defendant,  whilst  at  large,  was  served  with  a  copy  of  pro- 
cess, with  notice  to  appear,  but  before  a  declaration  became  a  prisoner  in 
the  Fleet,  and  the  plaintiff,  by  virtue  of  an  affidavit  of  service,  entered  an 
appearance  for  the  defendant,  left  a  declaration  in  the  office,  and  gave 

him  notice  thereof;  the  court  set  aside  the  declaration  and  sub- 
[  *356  ]  sequent  *proceedings,  on  the  ground  that  as  he  was  a  prisoner 

at  the  time  of  the  declaration,  it  ought  to  have  been  delivered  to 
the  turnkey  of  the  Fleet.(a) 

In  the  Exchequer  it  is  a  rule,(6)  that  "  in  all  cases  where  a  prisoner  is 
or  shall  be  taken,  detained  or  charged  in  custody,  by  mesne  process  issu- 
ino-  out  of  that  court,  and  the  plaintiff  shall  not  cause  a  declaration  to  be 
delivered  to  such  prisoner,  or  to  the  gaoler  or  turnkey  of  the  gaol  or 
prison  where  he  is  detained  or  charged  in  custody,  before  the  end  of  the 
next  term  after  the  return  of  the  process,  and  cause  an  affidavit  to  be 
made  and  filed  in  the  office  of  pleas,  of  the  delivery  of  such  declaration, 
and  of  the  time  when,  and  person  to  whom,  the  same  was  delivered,  by  the 
first  day  of  the  next  term  after  the  delivery  of  such  declaration,  the  pri- 
soner shall  be  discharged  out  of  custody,  by  writ  of  swpersedeas,  to  be 
granted  by  the  court  or  one  of  the  barons,  upon  entering  an  appearance, 
unless,  upon  notice  given  to  the  plaintiff's  attorney  or  clerk  in  court,  good 
cause  shall  be  shown  to  the  contrary :  And  in  case  of  a  commitment  or 
surrender  to  the  Fleet  prison  in  discharge  of  bail,  before  a  declaration 
delivered,  unless  the  plaintiff  shall  cause  a  copy  of  a  declaration  to  be 
delivered  as  aforesaid,  before  the  end  of  the  term  next  after  such  commit- 
ment or  surrender  shall  be  made,  and  due  notice  of  such  surrender  given, 
the  prisoner  shall  be  discharged  out  of  custody,  by  writ  of  supersedeas,  to 

(e)  Imp.  C.  p.  7  Ed.  667. 

(/•)  Ciis.  Pr.  C.  P.  114. 

{g)  2  Blac.  Rep.  786;  and  see  Barnes,  392.     1  Chit.  Rep.  386,  720.     A7ile,  344,  354. 

[a]  Barnes,  392  ;  but  see  1  Durnf.  &  East,  591. 

{h)  11.  T.  26  k.  27  Geo.  II.  §  ll,  m  Scac.     Man.  Ex.  Append.  214,  15. 


AGAINST  PRISONERS,  ETC.  356 

be  granteil  as  aforesaid,  upon  entering  an  appearance,  unless,  upon  notice 
given  to  the  plaintift"'s  attorney  or  clerk  in  court,  good  cause  shall  be 
shown  to  the  contrary," 

A\  hen  the  defendant,  being  charged  "with  process  issuiiK'  out  of  the 
King's  ]jcnch,  is  removed  before  declaration,  from  the  custody  of  the 
sheriff  or  marshal  to  the  Fleet  prison,  the  plaintiff,  we  have  seen,(c)  cannot 
proceed  further  in  the  King's  13ench,  without  removing  him  to  the  prison 
of  that  court,  by  habeas  corpus  ad  respondendum  ;  but  he  may  declare 
against  him  in  the  Common  Pleas,  in  the  same  manner  as  if  he  had  been 
arrested  by  process  out  of  tiuit  court,  and  proceed  to  final  judgment :  and  for 
default  of  declaring,  &c.,  in  due  time,  that  is  the  proper  court  to  be  applied 
to,  for  discharging  the  defendant  out  of  custody. ((?)  In  that  case  however 
there  having  been  already  an  affidavit  of  the  debt,  when  the  plaintiff  took 
out  the  process  upon  which  the  defendant  was  arrested,  it  is  not  necessary 
to  make  any  further  affidavit,  in  order  to  charge  him  in  custody  ;(c)  jmd  it 
seems  that  the  defendant,  after  such  removal,  may  put  in  and  justify  bail 
in  either  court. (/)  But  where  a  defendant  is  removed  to  the  Fleet  prison 
after  declaration,  the  action  must  proceed  in  that  court  wherein  the  plain- 
tiff declares;  and  the  defendant  is  to  be  superseded  by  that  court,  for 
want  of  subsequent  prosecution,  though  detained  in  the  prison  of  the  other 
court. ((/) 

*A  prisoner  once  committed  to  the  custody  of  the  marshal  or 
warden,  is  liable  to  be  charged  with  a  civil  action,  either  by  the  [  *8o7  ] 
satne  plaintiff  for  a  different  cause  of  action,  or  by  a  third  per- 
son, so  long  as  he  remains  in  actual  custody.  For  though  it  be  a  rule 
that  a  prisoner  once  supersedeable,  is  always  8o,(a)  yet  this  holds  only 
with  regard  to  the  same  plaintiff,  at  whose  suit  he  was  in  custody,  for  the 
original  cause  of  action  ;(/*)  and  even  with  regard  to  him,  it  must  be  under- 
stood with  this  qualification,  that  the  prisoner  is  only  supersedeable,  so 
long  as  he  remains  in  the  same  custody,  and  under  the  same  process ;  for 
the  moment  the  nature  of  the  custody  is  changed,  the  rule  ceases  :  There- 
fore, if  a  prisoner  upon  mesne  process  be  supersedeable  for  any  irregula- 
rity, as  for  want  of  the  demand  of  a  plea,  he  cannot  take  advantage  of  it, 
after  he  is  charged  in  execution;  supposing  he  had  any  opportunity  of 
applying  on  that  ground,  before  he  was  charged  in  execution. (c)  So, 
where  a  prisoner  is  supersedeable,  for  want  of  filing  a  bill  against  him  in 
due  time,  he  waives  the  irregularity,  by  afterwards  pleading.(cZ)  And  it 
has  been  holden,  that  a  creditor  may  lawfully  enter  a  detainer  against  his 
debtor,  who  is  in  fact  resident  within  the  walls  of  the  King's  ijcnch,(ee) 
or  Fleet  prison, (//')  though  he  be  not  there  by  compulsion.  But  a  fugi- 
tive, surrendering  himself  to  the  warden,  in  order  to  take  the  benefit  of  an 
insolvent  act,  was  not  considered  as  a  prisoner,  nor  liable  to  be  charged 
as  such  with  a  declaration. (^(/) 

(c)  Ante,  349.  (d)  Barnes,  384,  5,  402. 

(e)  Pr.  Reg.  330.     Barnes,  75.     Cas.  Pr.  C.  P.  144,  S.  C. 

(/)  1  Bos.  &  Pul.  311.     Ante,  246.  (//)  Barnes,  384,  5. 

{n)  Barnes,  368,  9,  499.     1  II.  Blac.  251.      1  Bos.  &  Pul.  301. 

(/>)  2  Bur.  1048.     Cookson  v.  Fv^tcr,  T.  23  Geo.  III.  K.  B. 

(c)  1  Durnf.  k  East,  591  ;  but  see  7  Moore,  154.     3  Brod.  &  Bing.  301,  S.  C. 

\,l)  1  KMSt,  77  ;  and  see  1  H.  Blac.  251.     1  Chit.  Rep.  387,  8. 

{<v)  3  Maiile  &  Sel.  144;  but  see  1  Chit.  Rep.  579. 

(/)  3  Diirnf.  k  East,  392  ;  but  vide  ante,  219. 

(yy)  Barnes,  380.     Pr.  Reg.  320,  S.  C.     2  Blac.  Rep.  970. 


357 


OF  THE  niOCEEDINGS 


In  the  King's  Bench,  the  mode  of  charging  a  prisoner  with  an  action, 
in  custody  of  the  marshal,  in  term  time,  is  by  filing  a  bill  against  him,  as 
beino-  in  such  custody,  and  delivering  a  declaration,  which  is  a  mere  copy 
of  the  bill,  to  the  turnkey.  In  vacation^  there  was  formerly  no  way  to 
charge  him,  but  by  making  an  entry  in  the  marshal's  book  in  the  King's 
Bench  office,  that  he  should  remain  in  custody,  at  the  suit  of  the  intended 
plaintiff,  which  was  deemed  sufficient  to  charge  him,  provided  he  were 
then  in  actual  custody ;  for  if  he  were  at  liberty,  he  might  have  been  ar- 
rested.(/i)  But  in  a  modern  case,(^■)  where  this  matter  was  fully  discussed, 
the  court  of  King's  Bench  were  of  opinion,  that  the  right  method  of 
charging  the  defendant  with  a  new  suit  in  vacation,  is  to  file  a  bill,  as  of 
the  preceding  term  ;  and  then  deliver  to,  or  leave  for  the  defendant  in 
custody,  a  copy  of  the  declaration,  as  of  the  preceding  term,  and  to  make 
an  affidavit  thereof.(^)  And  when  the  defendant  is  charged  in  vacation, 
upon  a  cause  of  action  arising  after  the  last  term,  there  should  be  a  spe- 
cial memorandum,  similar  to  that  against  an  attorney  under  the 
[  *o58  ]  like  *circumstances,(a)  stating  the  day  of  bringing  the  bill  into 
the  office  of  the  clerk  of  the  declarations.  For  preventing, 
however,  the  detainer  of  prisoners  charged  with  declarations  in  custody 
of  the  marshal,  where  the  cause  of  action  against  them  does  not  amount 
to  a  bailable  sum,  it  is  a  rule,(6)  in  the  King's  Bench  and  Exchequer,  that 
"  no  declaration  shall  be  sufficient  cause  of  detaining  such  prisoner  in 
custody,  unless  an  affidavit,  that  the  plaintiff's  cause  of  action  against  hira 
does  amount  to  ten  pounds  or  upwards,  (since  increased  to  tiventy  pounds 
or  upwards,  by  the  statute  7  &  8  Geo.  IV.  c.  71,  §  1,)  shall  bo  first  made 
and  filed  with  the  clerk  of  the  rules  in  the  former  court,  or  in  the  office  of 
pleas  in  the  latter,  and  the  sum  specified  in  such  affidavit  indorsed  by  him 
on  such  declaration,  before  the  same  is  left  with  the  turnkey." 

In  the  Common  JPleas  there  seems  to  have  been  formerly  a  difficulty  in 
proceeding  against  prisoners  in  the  Fleet  prison,  at  the  suit  of  a  third 
person;  to  obviate  which,  a  rule  was  made,  that  "if  a  capias  were  re- 
turned in  court  non  est  inventus,  against  a  prisoner  in  the  Fleet,  he 
should  be  compellable  to  appear  upon  a  habeas  corpus  ad  respondendum^ 
as  well  at  the  suit  of  a  stranger,  as  at  his  suit  whereupon  he  was  impri- 
soned, and  to  answer  to  a  declaration  according  to  the  rules  of  the  court, 
or  that  judgment  might  be  entered  against  him:"(c)  and  at  length,  by 
the  statute  13  Qar.  II.  stat.  3,  c.  2,  §  5,  it  was  enacted,  that  "  every  per- 
son or  persons,  having  cause  of  personal  action  against  any  prisoner  in 
the  Fleet,  may  sue  forth  an  original  writ  upon  his  or  their  cause  of  action; 
and  that  a  writ  of  habeas  corpus  be  granted  to  every  such  person  or  per- 
sons, to  be  directed  to  the  warden  of  the  same  prison,  to  have  the  body 
of  such  prisoner  before  the  justices  of  the  Common  Pleas,  at  some  certain 
day  in  any  term,  to  answer  the  said  plaintiff  or  plaintiffs,  upon  his  or 
their  said  cause  of  action;  and  that  if  the  said  plaintiff  or  plaintiffs,  at 

Ui)  6  Mod.  254.     1  Salk.  213,  14,  345.     3  Salk.  150. 

(j)  2  Bur.  1052  ;  and  see  SDurnf.  &  East,  643.     2  Wms.  Saund.  5  Ed.  1,  (1). 

Uc)  Qu.  as  to  the  affidavit  ?  which  does  not  seem  to  be  necessary,  when  the  defendant  is  in 
custody  of  the  marshal.     Ante^  354. 

(a)  5  Durnf.  &  East,  325.  8  Durnf.  &  East,  643,  Ante,  321 ;  and  see  7  Barn.  &  Cres.  406. 
Append.  Chap.  XV.  I  20. 

{h)  R.  E.  15  Geo.  II.  reg.  3,  K.  B.  R.  T.  26  &  27  Geo.  II.  I  3,  in  Scac.  Man,  Ex,  Append. 
210. 

(c)  R.  M.  1654,  I  13, C.  P.;  and  see  id.  §  10. 


AGAINST  PEISOXERS,  ETC.  358 

the  said  day,  put  into  the  said  court  his  or  their  declaration,  according  to 
the  said  original  writ,  against  the  said  prisoner  being  present  at  the  bar, 
the  said  prisoner  shall  be  bound  to  appear  in  person,  or  to  put  in  an  at- 
torney to  appear  for  him  in  the  said  action;  and  unless  the  said  defen- 
dant plead  upon  a  rule  given,  to  be  out  in  eiijld  days  at  the  least  after 
such  appearance,  judgment  hy  nihil  dicit  maybe  entered  against  such 
defendant,  as  appearing  in  person,  which  shall  be  good  and  effectual  in 
law ;  and  such  charge  in  court  by  declarations,  signified  by  rule  unto  the 
said  warden,  shall  be  a  good  cause  of  detention  of  such  prisoner  in  his 
custody,  from  which  he  shall  not  be  discharged,  without  a  lawful  superse- 
deas or  rule  of  court :  and  if  the  said  warden  shall  do  otherwise,  he  shall 
be  responsible  to  the  court,  and  to  the  party  grieved  for  damages,  by  action 
upon  the  case,  to  be  brought  against  him  for  discharging  such  prisoner."  A 
rule  of  court  was  made,  soon  after  the  passing  of  this  statute,(cZ) 
limiting  '*'the  times  within  which  prisoners  should  be  brought  to  [  *oo9  ] 
the  bar  of  the  court  by  habeas  corpus,  to  be  charged  with  de- 
clarations :  but  the  statute  8  &  9  W.  III.  c.  27,  §  13,  having  dispensed 
with  the  necessity  of  bringing  them  to  the  bar  of  the  court  for  that  purpose, 
the  mode  of  charging  them  with  a  declaration,  at  the  suit  of  a  third 
person,  is  now  similar  to  that  used  by  the  same  plaintiff,  at  whose  suit 
they  were  originally  arrested :  And  they  may,  it  seems,  be  charged  with 
a  declaration  in  vacation,  as  well  as  in  term  time. (a)  But  a  rule  was  made 
in  this  court,(6)  as  well  as  in  the  King's  Bench,  in  consequence  of  the 
statute  5  Geo.  II.  c.  27,  that  "  no  copy  of  a  declaration,  delivered  at  the 
Fleet  prison,  against  any  prisoner  there,  shall  be  a  sufficient  charge  to 
hold  such  prisoner  to  bail,  or  to  detain  such  prisoner  in  custody  for  want 
of  bail,  unless  an  affidavit  that  the  plaintiff's  cause  of  action  amounts  to 
ten  pounds  or  upwards,  (since  increased  to  twenty  pounds,  by  the  statute 
7  &  8  Geo.  IV.  c.  71,  §  1,)  be  first  made  and  filed  in  the  proper  prothono- 
tary's  office,  and  an  indorsement  made  by  the  said  prothonotary,  or  his 
deputy,  upon  such  copy  of  a  declaration,  signifying  the  sum  of  money 
specified  in  such  affidavit ;  for  which  sum  so  indorsed,  bail  shall  be 
required,  and  for  no  more."  On  this  rule,  it  is  necessary  that  the 
original  declaration,  indorsed  by  the  prothonotary,  should  be  delivered, 
and  not  a  copy  of  such  declaration  and  indorsement  :{c)  but  the  rule  is 
confined  to  cases  where  the  prisoner  is  charged  with  a  neiv  action  ;  and 
does  not  apply,  where  he  is  proceeded  against  by  the  same  plaintiff,  for 
the  cause  of  action  expressed  in  the  process  '.[dd)  And  the^ court  will  not 
discharge  a  defendant  out  of  custody,  on  the  ground  of  the  affidavit  of  the 
delivery  of  the  declaration  not  having  been  filed  within  twenty  days  after 
the  delivery,  if  it  be  by  way  of  detainer. (e) 

When  a  bill  is  filed  against  a  prisoner  in  custody  of  the  marshal,  if  a 
copy  of  it  be  delivered  for  him  to  the  turnkey, /oi<r  days  exclusive  before 
the  end  of  the  term,  a  rule  to  plead  given,  and  a  plea  demanded,  the 
defendant  must  plead  as  of  that  term  ;  but  if  the  bill  be  not  filed,  and  copy 
delivered, /(9 If r  days  exclusive  before  the  end  of  the  term,  the  defendant 
may  imparl  until  the  next  term ;  and  in  default  of  pleading  in  due  lime, 

(rf)  R.  H.  14  &  15  Car.  II.  reg.  3,  C.  P. 

(a)  2  Marsh.  55,  6.  (i)  R.  H.  8  Geo.  II.  reg.  1,  C.  P. 

(r)  Pr.  Reg.  331.     Barnes,  434,  S.  C. 

\dd)  Barnes,  75.     Pr.  Reg.  330.     Cas.  Pr.  C.  P.  144,  S.  C.  (f)  2  Bos.  &  Pul.  T2. 

Vol.  I.— 23 


359  OF  THE  PHOCEEDINGS 

judgment  may  be  signed. (/)  In  the  Common  Pleas,  tlie  defendant  must 
plead  within  the  time  limited  by  the  rule  given  by  the  secondary ;  and  a 
demand  of  plea  is  necessary,  when  the  defendant  is  in  custody  of  the 
marshal  of  the  King's  Bench  prison  ',[g)  which  demand  may,  it  seems,  be 
made  at  the  time  of  delivering  the  declaration  -.{It)  but  when  the  defendant 
is  in  custody  of  the  warden  of  the  Fleet,  a  demand  of  plea  is  in  general 
unnecessary  •,{i)  though  if  a  prisoner,  in  the  Common  Pleas,  be  prevented 

from  justif}ang  bail,  by  the  plaintiff's  desiring  further  time  to 
[*  360  ]   inquire  into  their  sufficiency,  he  is,  from  the  time  of  his  notice 

of  *justification,  entitled  to  a  demand  of  plea,  before  judgment 
can  be  signed  against  him.(art) 

After  the  delivery  of  the  declaration  against  a  prisoner  in  custody  of  the 
sheriff,  &c.,  or  against  a  prisoner  in  custody  of  the  marshal,  the  plaintiff,  in 
the  King's  Bench,  should  proceed  to  trial  or  final  judgment,  within  three 
terms  next  after  such  declaration  delivered,  if  by  the  course  of  the  court 
he  can  so  proceed  ;  of  which  three  terms,  the  term  wherein  the  declaration 
■was  delivered  is  oxxe;{bh)  and  should  cause  the  defendant  to  be  charged  in 
execution,  within  two  terms  next  after  such  trial  or  judgment ;  of  which 
two  terms,  the  term  wherein  the  trial  was  had,  or  judgment  obtained,  is 
also  one  ;{h)  in  case  no  writ  of  error  be  depending,  nor  injunction  obtained 
for  stay  of  proceedings  :  And  if  any  writ  of  error  be  depending,  or  injunc- 
tion obtained,  then  within  tivo  terms  next  after  the  judgment  is  affirmed, 
the  writ  of  error  non  pressed  or  discontinued,  or  the  injunction  dissolved ; 
including  the  term  of  the  affirmance,  no7i  pros,  discontinuance,  or  dis- 
solving the  injunction. (5) 

In  case  of  a  surrender  to  the  marshal  in  discharge  of  bail,  after 
declaration,  the  plaintiff,  in  the  King's  Bench,  should  proceed  to  trial,  or 
final  judgment,  within  three  terms  next  after  such  surrender,  and  due 
notice  thereof,  if  by  the  course  of  the  court  he  can  so  proceed ;  of  which 
three  terms,  the  term  of  the  surrender  is  one ;((?)  or,  in  case  of  a  surrender 
in  discharge  of  bail,  after  trial  had  or  final  judgment  obtained,  he  should 
cause  the  defendant  to  be  charged  in  execution,  within  tivo  terms  next 
after  such  surrender,  and  due  notice  thereof;  of  which  two  terms,  the 
term  of  the  surrender  is  also  one ':((?)  in  case  no  writ  of  error  be  depending, 
nor  injunction  obtained  for  stay  of  proceedings  :  And  if  any  writ  of  error 
be  depending,  or  injunction  obtained,  then  within  tivo  terms  next  after  the 
judgment  is  affirmed,(c)  &c.  This  rule  does  not  attach  in  a  case  where 
there  are  two  defendants,  one  of  whom  suffers  judgment  by  default,  and 
the  other  pleads  to  issue  ;  the  trial  of  such  issue  being  had  within  the 
third  term,  though  the  costs  are  not  taxed,  nor  final  judgment  in  fact 
signed,  till  after  that  term,  but  then  entered,  according  to  the  course  of 
the  court,  as  of  that  iQvva..{d)  The  final  judgment  mentioned  in  the  above 
rule,  means  final  judgment  without  a  trial,  as  upon  an  interlocutory  judg- 
ment, demurrer,  or  nul  tiel  record :  Therefore,  if  there  be  a  trial  against 
a  prisoner,  he  is  supersedeable,  nnlcss  charged  in  execution  within  two 

(/)  R.  E,  5  "W.  &  M.  reg.  3,  («),  K.  B. ;  and  see  1  Dowl.  &  Ryl.  186, 
(g)  1  Durnf.  &  East,  591.  (h)  1  Dowl.  &  Ryl.  186. 

(0  Imp.  C.  P.  7  Ed.  231,  667.  \aa)  2  Bos.  &  Pul.  367. 

{bb)  R.  H.  26  Geo.  TIL  K.  B. ;  and  see  R.  T.  2  Geo.  I.  K.  B.  and  the  notes  thereon. 
\b)  R.  H.  26  Geo.  III.  K.  B. ;  and  see  R.  T.  2  Geo.  I.  K.  B.  and  the  notes  thereon. 

(c)  Id.  ibid.  1  Wils.  297.     2  Wils.  325.     3  Bur.  1787.     4  Bur.  2060.     6  Durnf.  &  East,  776. 
8  Taunt.  674.     3  Moore,  8,  S.  C. ;  and  see  3  Dowl.  &  Ryl.  31. 

[d]  13  East,  167. 


AGAINST  rRISONERS,  ETC,  300 

terms  afterwarJs.(c')  But  when  a  defendant  surrenders  in  discharge  of 
bail,  in  the  same  vacation  as  the  trial  was  had  and  verdict  obtained  against 
him,  the  preceding  term  is  not  reckoned  as  one  of  the  two ;  but  the  plain- 
tift"  is  allowed  the  the  two  following  terras  to  charge  him  in 
execution. (/)  After  declaration,  plea,  and  issue,  which  was  [  *361  ] 
joined  in  Trinity  term,  the  defendant  *on  the  6th  November 
gave  a  cognovit  for  the  debt  and  costs,  and  on  the  11th  surrendered  in 
discharge  of  his  bail ;  in  IlUary  term,  the  plaintiff  entered  up  final  judg- 
ment; and  the  court  held,  that  he  might  charge  the  defendant  in  execution 
in  Easter  term,  though  the  latter  might  have  been  previously  supcrsede- 
able.(rt)  And  where  the  plaintiff  obtained  final  judgment  in  Hilary 
term,  against  a  defendant  who  surrendered  in  discharge  of  his  bail,  on  the 
day  preceding  the  essoin  day  of  Easter  term,  but  notice  of  the  surrender 
was  not  given  until  two  days  afterwards ;  it  was  holden,  that  the  two 
terms  allowed  for  charging  the  defendant  in  execution,  were  to  be  calculated 
from  the  time  of  giving  notice  of  the  surrender ;  and  of  course,  that  the 
plaintiff  might  charge  him  in  execution  in  Trinity  tcrm.(W)  A  person, 
when  at  large,  was  sued  by  A.,  and  was  afterwards  in  custody  at  the  suit  of 
B.,  the  court  held,  that  he  need  not  be  charged  in  execution  at  the  suit  of 
A.,  within  two  terms  after  judgment,  but  might  be  so  charged  at  any  time  ; 
for  though  in  custody  at  the  suit  of  another  person,  he  was  not  in  custody 
at  the  suit  of  A.(c) 

In  the  Common  Pleas,  in  like  manner,  "  if  any  plaintiff  shall  declare 
against  any  defendant,  in  custody  of  the  warden  of  the  Fleet  prison,  or  of 
any  sheriff  or  other  officer,  by  virtue  of  any  process  of  this  court  and  shall 
not  further  proceed  to  judgment,  within  tlirce  terms  after  such  declaration 
delivered,  inclusive  of  the  term  in  which  it  is  delivered,  the  defendant  hav- 
ing appeared ;  or  if  any  plaintiff,  having  obtained  judgment  in  this  court, 
in  any  action  against  any  defendant  being  a  prisoner  as  aforesaid,  shall 
not  charge  such  defendant,  so  remaining  a  prisoner,  in  execution  upon  the 
judgment  so  obtained,  within  two  terms  next  after  such  judgment  so  had 
and  obtained,  including  the  term  in  which  the  said  judgment  shall  be 
signed,  then  such  defendant,  so  remaining  in  prison,  may  be  discharged 
out  of  custody  where  he  shall  be  so  detained,  by  supersedeas[d)  to  be 
allowed  by  one  of  the  justices  of  this  court,  if  cause  shall  not  be  shown 
by  the  plaintiff  or  his  attorney,  why  such  plaintiff  had  not  proceeded 
before  that  time  to  judgment  and  execution  as  aforesaid,  upon  notice  to 
either  of  them  given  by  the  defendant's  attorney  or  agent,  and  oath  made 
of  such  notice  given." 

And  "  if  any  defendant  shall  render  him  or  herself,  or  be  rendered  to 
the  Fleet  prison,  in  discharge  of  his  or  her  bail,  at  the  suit  of  any  plain- 
tiff, where  any  declaration  hath  been  delivered  against  such  person  so  ren- 
dering him  or  herself,  or  being  rendered,  or  judgment  has  been  had  against 
him  or  her  before  such  render,  unless,  the  plaintiff  shall  proceed  to  judg- 
ment upon  such  declaration  delivered,  within  tJiree  terms  after  such  ren- 
der, the  defendant  having  appeared,  and  charged  such  defendant  in  exe- 
cution within  two  terms  after  such  judgment  obtained,  such  defendant  may 
be  discharged  out  of  custody,  by  supersedeas  to  be  allowed  by  one  of  the 

(e)  4  East,  349.     13  East,  169,  {a). 

If)  6  Durnf.  &  East,  776;  aud  see  8  Taunt.  674.  3  Mooro,  8,  S.  C. 

\a)  3  Dowl.&  Jiyl.  31.  {bb)  3  Bara.  &  Cres.  738. 

(c)  Per  Cur.  M.  22  Geo.  III.  K.  B.  {d)  Append.  Chap.  XV.  §  49,  50,  53,  4. 


361  OF  TUE  PROCEEDINGS 

justices  of  this  court,  if  cause   shall  not  be  shown  to  the  contrary  as 

aforesaid,  by  the  plaintiff  or  his  attorney,  upon  notice  to  either 
[  *362  ]   of  them  given  *by  the  defendant's  attorney  or  agent,  and  oath 

made  of  such  notice  given, "(a) 
Upon  these  rules  it  is  necessary  that  the  plaintiff,  in  the  Common  Pleas, 
should  proceed  to  final  judgment,  within  three  terms  inclusive  after  decla- 
ration, unless  he  can  show  that  it  was  out  of  his  power  to  proceed  so  fast  ;(6) 
and,  if  final  judgment  be  signed  in  the  vacation  of  the  third  term,  it  will 
not  be  sufficient  to  prevent  a  supersedeas. [cc)  There  is  a  distinction  how- 
ever between  these  rules,  and  those  of  the  King's  J^ench,  as  to  the  time 
allowed  for  proceeding  against  prisoners  :  In  the  latter  court  it  is  required 
that  the  plaintifi"  shall  proceed  to  trial  or  final  judgment,  within  three 
terms  inclusive  after  declaration,  and  shall  cause  the  defendant  to  be 
charged  in  execution,  within  ttvo  terms  inclusive  after  such  trial  or  judg- 
ment ;  of  which  the  term  in  or  after  which  the  trial  was  had,  is  reckoned 
as  one  :{dd)  but,  in  the  Common  Pleas,  no  notice  is  taken  of  the  ti'ial;  the 
rule(e)  being,  that  the  plaintifi"  shall  proceed  to  judgment  within  three 
terms  inclusive  after  declaration,  and  charge  the  defendant  in  execution, 
within  fwo  terms  inclusive  z^hev  judgment  against  him.  And  where  the 
plaintifi"  had  omitted  to  charge  the  defendant  in  execution  within  two  terms, 
the  court  held,  that  the  defendant  was  supersedeable,  although  in  the 
mean  time  he  had  removed  himself  to  the  King's  Bench  prison,  by  habeas 
corpus,  in  another  action. (/) 

In  the  Exchequer  it  is  a  rule,((7)  that  "  in  all  cases,  after  a  declaration 
delivered  at  the  Fleet,  or  any  other  gaol  or  prison,  unless  the  plaintifi" 
shall  proceed  to  judgment  theupon,  within  three  terms  next  after  such 
declaration  delivered,  if  by  the  course  of  the  court  he  could  so  proceed, 
(of  which  three  terms  the  term  wherein  the  declaration  was  delivered 
shall  be  taken  to  be  one) ;  or  in  case  of  a  surrender  in  discharge  of  bail 
after  declaration  delivered,  unless  the  plaintifi"  shall  proceed  to  final  judg- 
ment thereupon,  within  three  terms  next  after  such  surrender  and  due 
notice  thereof,  if  by  the  course  of  the  court  he  could  so  proceed,  (of  which 
three  terms  the  term  wherein  the  surrender  was  made  shall  be  taken  to 
be  one,)  the  prisoner  shall  be  discharged  out  of  custody,  by  writ  of  super- 
sedeas, upon  entering  an  appearance ;  unless,  upon  notice  given  to  the 
plaintifi"  's  attorney  or  clerk  in  court,  good  cause  shall  be  shown  to  the 
contrary:  And  in  all  cases,  after  final  judgment  obtained  against  any  pri- 
soner in  the  Fleet,  or  any  other  gaol  or  prison,  unless  the  plaintifi"  shall 
cause  such  prisoner  to  be  charged  in  execution  upon  the  said  judgment, 
within  two  terms  next  after  such  final  judgment  obtained,  (of  which  two 
terms  the  term  wherein  final  judgment  was  obtained  shall  be  taken  to  be 
one,)  in  case  no  writ  of  error  shall  be  depending  on  such  judgment ;  but 

if  any  writ  of  error  shall  be  depending  thereupon,  then  within 
[  *363  ]   two  terms  next*after  the  judgment  shall  be  affirmed,  or  the  writ 

of  error  non-prossed  or  discontinued,  including  the  term  of  the 
affirmance,  no7i-pros  or  discontinuance  ;  or,  in  case  of  a  surrender  in  dis- 
charge of  bail,  after  final  judgment  obtained,  unless  the  plaintifi"  shall 

(a)  R.  E.  8  Geo.  I.  C.  P.  Imp.  C.  P.  6  Ed.  644,  5.  {h)  Barnes,  383. 

{cc)  Id.  379.  {dd)  4  East,  349, 

(e)  R.  E.  8  Geo.  I.  C.  P. 

(/)  7  Moore,  154.    3  Brod.  &  Bing.  301,  S.  C. 

{g)  R.  T.  26  &  27  Geo.  H.  §  II,  in  Scac.    Man.  Ex.  Append.  215,  16. 


AGAINST  PRISONERS,  ETC.  oC3 

proceed  to  cause  the  defendant  to  be  charged  in  execution  upon  the  said 
judgment,  within  two  terms  next  after  such  surrender,  and  due  notice 
thereof,  (of  which  two  terms  the  term  wherein  the  surrender  was  made 
shall  be  taken  to  be  one),  in  case  no  writ  of  error  shall  be  depending  on 
such  judgment;  but  if  any  writ  of  error  shall  be  depending  thereupon, 
then  within  two  terms  next  after  the  judgment  shall  be  affirmed,  or  the 
writ  of  error  non-prossed  or  discontinued,  including  the  term  of  the  affirm- 
ance, non-pros  or  discontinuance ;  the  prisoner  shall  be  discharged  out  of 
custody  by  supersedeas,  unless,  upon  notice  given  to  the  plaintiff's  attor- 
ney or  clerk  in  court,  good  cause  shall  be  shown,  in  either  of  the  said 
cases,  to  the  contrary." 

The  mode  of  proceeding  to  trial  and  final  judgment  against  a  prisoner,  in 
all  the  courts,  is  pretty  much  the  same  as  in  common  cases.  The  plea  is 
usually  pleaded  in  person  ;  but  it  may  be  pleaded  by  attorney,  as  is  com- 
monly done,  where  the  defendant  surrenders  after  appearance  in  discharge 
of  his  bail :  The  issue  in  that  case  is  delivered  to  the  attorney,  but  otherwise 
to  the  defendant  or  turnkey  :(a)  and  formerly,  where  a  prisoner  appeared 
by  attorney,  he  was  bound  to  pay  for  the  issue,  or  judgment  might  be 
signed ;  though  it  was  otherwise,  where  he  appeared  in  person  :(6)  and 
notice  of  trial  to  the  gaoler  or  turnkey  is  deemed  sufficient.(c)  In  the  Com- 
mon Pleas,  ten  days  notice  of  trial  was  formerly  required  to  be  given  to  a 
defendant  in  the  Fleet  prison  ;{<£)  but  now,  the  same  notice  of  trial  is 
usually  given  as  in  other  cases. 

In  order  to  charge  a  defendant  in  execution,  in  the  King's  Bench,  the 
proceedings  must  be  entered  on  record,  and  the  judgment  roll  docketed  and 
filed  -.{e)  after  which,  if  the  defendant  be  a  prisoner  in  the  county  gaol,  a 
writ  of  capias  ad  satisfaciendum,  must  be  sued  out,  directed  to  the  sheriff 
of  the  county  in  whose  custody  he  is,  if  the  venue  be  laid  in  that  county ;  or 
if  not,  a  ca.  sa.  must  be  sued  out  into  the  county  where  the  venue  is  laid, 
and  a  testatum  ca.  sa.  directed  to  the  sheriff  of  the  county  where  he  is  a 
prisoner,  and  sent  to  the  under-sheriff,  with  directions  to  charge  him  in  cus- 
tody :(/)  or  if  he  be  detained  in  the  King's  Bench  prison,  at  the  suit  of  the 
8ame  plaintilT,  the  plaintiff's  attorney  should  obtain  a  side-bar  rule  from  the 
clerk  of  the  rules,  for  the  marshal  to  acknowledge  him  in  his  custody  ;{g) 
and  the  marshal,  being  served  with  a  copy  of  the  rule,  will  write  his  ac- 
knowledgment at  the  bottom  of  it,  which  ought  to  be  of  the  sa7ne 
term  in  which  the  *defendant  is  charged  in  execution,  and  not  [  *3G4  ] 
of  a  preceding  term. (a)  A  committitur  piece(?))  should  be  then 
drawn  up  on  parchment,  in  the  form  of  a  bail-piece,  and  filed  with  the 
clerk  of  the  judgments,  in  order  that  he  may  enter  the  committitur  on 
record  :{c)  And  it  is  usual,  before  this  is  done,  to  enter  the  committitur 
in  the  marshal's  book,  kept  at  the  King's  Bench  office. (t?(?)     If  the  defen- 

(a)Imp.  C.  P.7  E^.  672. 

(i)  Cas.  Pr.  C.  P.  35.  2  Wils.  11.  But  now,  judgment  can  in  no  case  be  ."signed,  for  non- 
payment of  the  issue  money.  R.  H.  35  Geo.  III.  K.  B.  &  C.  P.  6  Duruf.  &  East,  218.  2  H. 
Blac.  ocl.  ed.  551.   1  Bo3.  &  Pul.  292,  [b). 

(c)  1  Str.  248.  ((f)  R.  II.  14  &  l.-i  Car.  11.  reg.  3,  C.  P. 

\e)  Imp.  K.  B.  10  Ed.  G19.  Lee's  Prac.  Die.  1  Ed.  940.    2  Arcbb.  K.  B.  I'lT. 

(/)  Imp.  K.  B.  10  Ed.  619. 

{g)  R.  T.  2  Geo.  I.  §  2.  (i),  K.  B.  Append.  Chap.  XV.  ?  25. 

(a)  1  Durn.  &  East,  464;  and  see  10  East,  46,  accord,  where  the  reason  is  given  for  this 
practice.  (i)  Append.  Ubap.  XV.  §  26.  (c)  Jd.  g  27. 

{dd)  2  Bur.  1049  ;  and  see  1  Salk.  272, 3.  2  Str.  1215, 1 226.  2  Smith,  R.  243.  1  Chit.  Rep. 
364,  5.  Ante,  239. 


3(54  OF  THE  PROCEEDINGS 

daiit  be  not  detained  in  custody  at  the  suit  of  the  same  plaintiff,  the  proper 
mode  of  proceeding  is,  to  sue  out  a  writ  of  habeas  corpus  ad  satisfacien- 
dum, and  bring  the  defendant  into  court  thereon,  in  order  to  charge  him 
in  execution. 

It  was  formerly  holden,  that  the  committitur  must  be  actually  entered 
on  record,  before  the  end  of  the  second  term  inclusive  after  trial  or  judg- 
ment, otherwise  the  defendant  Avas  supersedeable ;  and  there  was  no  ex- 
tension of  the  time,  to  the  continuance  day  after  term  ;  nor  was  an  entry 
in  the  marshal's  book  in  time  sufficient. (ee)  But  it  was  afterwards  deter- 
mined, that  if  the  plaintiff's  attorney  signed  judgment,  and  filed  the  com- 
mittitur piece  with  the  clerk  of  the  judgments,  within  the  second  term 
after  trial  and  verdict  against  a  prisoner,  that  was  a  sufficient  charging 
him  in  execution  within  tivo  terms,  pursuant  to  the  rule  of  court ;  though 
the  final  judgment  and  committitur  were  not  entered  of  record,  by  the 
officer  of  the  court,  till  the  continuance  day  after  the  second  term,  pro- 
vided the  entries  were  then  complete.(^)  And  a  rule  of  court  is  now 
made,  ((/^)  that  "the  committitur  on  every  judgment  obtained  against  a 
prisoner  in  this  court,  shall  be  filed  with  the  clerk  of  the  dockets,  on  or 
before  the  last  day  of  the  term  in  which  the  prisoner  is  charged  in  execu- 
tion :  and  the  said  clerk  shall  enter  such  co7nmittitur  on  the  judgment  roll, 
within  four  days  next  after  the  end  of  such  term,  exclusive  of  the  last 
day  of  term ;  unless  the  last  of  the  four  days  be  Sunday,  and  in  that  case 
within  five  days  next  after  the  end  of  such  term ;  and  in  default  thereof, 
the  prisoner  shall  be  entitled  to  be  discharged."  In  the  construction  of 
the  above  rule  it  has  been  holden,  that  where  a  prisoner  is  charged  in 
execution,  it  is  not  sufficient  for  the  plaintiff's  attorney  to  file  a  commit- 
titur piece  in  due  time  with  the  clerk  of  the  dockets;  but  he  must  also  see 
that  the  latter  enters  the  committitur  on  the  judgment  roll,  within  the 
time  prescribed  by  the  rule ;  and  if  that  be  not  done,  the  prisoner  is  en- 
titled to  be  discharged. (A)  But  this  rule  does  not  extend  to  the  case  of  a 
prisoner  committed  under  a  habeas  corpus,  in  which  no  committitur  piece 
was  ever  necessary.(/)  It  is  usual  for  the  clerk  of  the  judgments,  at  the 
end  of  every  term,  to  send  to  the  marshal  a  docket  or  list  of  the  commit- 

titurs  which  have  been  entered  in  that  term,  stating  therein 
[  *365  ]   *the  names  of  all  the  plaintiffs  at  whose  suit  the  defendant  is 

charged  in  execution  ;  from  which  docket  or  list  an  entry  is  made 
by  the  marshal.  And  where  the  clerk  of  the  judgments  had  made  a  mis- 
take, in  omitting  the  name  of  one  of  several  plaintiffs,  in  his  docket  trans- 
mitted to  the  marshal,  it  was  rectified  by  the  court,  at  the  instance  of  the 
clerk. (a)  When  the  defendant  has  been  once  committed,  a  second  com- 
mitment for  the  same  cause,  before  the  first  is  discharged,  or  notice  given 
that  it  is  abandoned,  is  clearly  informal. (J)  But  where  the  defendant 
being  acknowledged  by  the  marshal  to  be  in  his  custody,  at  the  suit  of  A. 
it  was  moved  that  he  might  be  charged  in  execution  also,  on  a  judgment 
of  outlaivry  in  another  action  at  the  suit  of  B.  the  court  ordered  the  same 
in  the  first  instance. (c)     In  the  Exchequer,  where  a  prisoner  was  charged 

(c€)  2  Str.  1215, 1226.  3  Bur.  1841.  (/)  1  East,  405. 

{gg)  R.  E.  41  Geo.  III.  K.  B.   1  East,  410. 
(A)  2  Barn.  &  Cres.  342.  3  Dowl.  &  Ryl.  597,  S.  C. 
(0  Pitcher  v.  Faucett,  T.  43  Geo.  III.  K.  B. ;  and  see  1  Chit.  Rep.  365. 
(«)  Gage  and  a?iother  v.  Parsons,  M.  36,  Geo.  III.  K.  B.  (b)  1  Durnf.  &  East,  227. 

(c)  Amos  V.  3Iartm,  T.  36  Geo.  III.  K.  B. ;  but  see  Imp.  K.  B.  10  Ed.  625,  (a),  where  it  is 
said,  that  a  habeas  corpus  ad  satisfaciendum  in  this  case  -would  have  been  proper. 


AGAINST  PRISONERS,  ETC.  365 

in  execution  in  Triniti/  terra,  for  a  sum  ^^•]lich  was  wrongly  stated  in  the 
judgment  roll  and  sub.seciuent  proceedings,  the  court,  in  the  following 
term,  ordered  the  judgment  roll  and  committitur  to  be  altered,  according 
to  the  facts  appearing  by  the  postea,  and  master's  allocatur. {d) 

If  the  defendant  be  removed,  after  declaration,  to  the  Fleet,  or  found 
in  the  prison  of  an  inferior  court,  the  mode  of  charging  him  in  execution, 
in  the  King's  ]>ench,  is  by  writ  of  habeas  corpus  ad  satinfacie7idum,  re- 
turnable in  that  court,  on  a  day  certain  in  term  ;  and  the  number  of  the 
judgment  roll  must  be  indorsed  on  the  habeas  corpii8.{c)  Nor  is  the  pri- 
soner bound  to  give  notice  of  his  removal  ;  but  the  plaintiff  must  take 
notice  of  it  at  his  peril :  Therefore,  where  a  prisoner,  who  had  been  sur- 
rendered in  discharge  of  his  bail,  and  afterwards  removed  to  the  Fleet, 
without  giving  any  notice  to  the  plaintiff,  was  charged  in  execution  as  a 
prisoner  in  the  King's  Bench,  the  court  granted  a  supersedeas  ;  for  the 
plaintiff  should  have  demanded  to  sec  the  prisoner,  and  if  not  produced, 
would  have  known  where  to  find  him,  and  bring  him  back  by  habeas  cor- 
pus, to  charge  him ;  and  it  would  be  putting  difficulties  upon  prisoners,  to 
oblige  them  to  give  notice. (/) 

In  order  to  charge  the  defendant  in  execution,  in  the  Common  Pleas, 
when  he  is  a  prisoner  in  the  county  gaol,  it  docs  not  seem  to  be  necessary 
that  the  proceedings  should  be  first  entered  on  record  ;  that  court  having 
refused  to  discharge  a  prisoner  out  of  execution,  where  there  was  no  judg- 
ment against  him  docketed,  and  entered  upon  the  rolls  of  the  court. (^)  In 
other  respects,  the  mode  of  charging  a  defendant  in  execution  in  the  county 
gaol,  is  tlio  same  in  the  Common  Pleas,  as  in  the  King's  Bench. (////)  Where 
the  defendant  is  a  prisoner  in  the  Fleet,  the  proceedings  being  first  entered 
on  record,  and  the  judgment  roll  docketed  and  filed,  a  habeas  corpus  ad 
satisfaciendum  should  be  sued  out,  directed  to  the  warden,  and  returnable 
in  court  on  a  day  certain. ({)  On  this  writ,  the  number  roll  of 
*the  judgment  should  be  indorsed,  by  the  attorney  who  sues  it  [  *3G6  ] 
out  :(a)  and  the  writ  being  signed  by  the  prothonotaries,  allowed 
by  a  judge  and  sealed,  should  be  taken  to  the  clerk  of  the  papers  of  the  Fleet 
prison,  four  days  before  the  return  ;(6)  upon  which,  the  defendant  being 
brought  into  court,  with  the  judgment  roll,  the  court  will  commit  him  to 
the  custody  of  the  warden,  charged  in  execution  at  the  plaintiff's  suit ;  and 
the  secondary  marks  the  habeas  corpus  and  commitment  by  the  court,  in 
the  margin  of  the  judgment  roll,  and  afterwards  enters  the  award  of  the 
writ  and  committitur  thereon. (c)  If  a  defendant  be  brought  into  court 
upon  a  habeas  corpus  ad  satisfaciendum,  he  is  to  be  charged  in  execution 
upon  that  judgment  only  on  which  the  habeas  corpus  issued;  and  there- 
fore, if  there  be  several  judgments  on  which  he  is  to  be  charged,  there 
must  be  a  habeas  corpus  ad  satisfaciendum  in  each  cause. (JrZ) 

AVhen  the  defendant  is  charged,  by  any  of  these  means,  the  execution 
is  considered  as  executed ;  and  therefore,  where  the  plaintiff  afterwards 
died,  it  was  holden  that  his  executors  were  not  bound  to  revive  the  judg- 

{d)  11  Price,  410. 

(c)  1  Sill.  100.  R.  M.  1654,  g  7,  R.  T.  2  Geo.  I.  (6),  K.  B. 

(/)  2  Str.  1153.  {g)  2  Boa.  &  Pul.  163. 

(hh)  Imp.  C.  P.  672  ;  and  see  Barnes,  389. 

(?)  R.  M.  1054,  §  10,  C.  P. 

(a)  R.  M.  1654,  §  10,  C.  P.  (i)  Imp.  C.  P.  7  Ed.  668. 

(c)  Id.  707.  Append.  Chap.  XV.  g  28,  {dd)  Barnes,  223. 


366 


OF  THE  PROCEEDINGS 


ment  by  scire  facias  ;  or  to  charge  the  defendant  in  execution  de  novo.{e) 
But  where  the  plaintiff,  having  charged  the  defendant  in  execution,  died, 
and  the  defendant's  wife  took  out  administration  to  the  plaintiff,  the  court 
ordered  the  defendant  to  be  discharged  out  of  custody ;  and  held  that  the 
plaintiff's  attorney  had  no  lien  on  the  judgment  for  his  costs. (/)  And 
the  court  of  Common  Pleas  discharged  a  defendant  out  of  custody  in  exe- 
cution, after  the  plaintiff's  death,  it  appearing  that  the  next  of  kin  did  not 
intend  to  take  out  administration,  on  service  of  the  rule  ^lisi  on  the  next 
of  kin.((7)  But  they  would  not  discharge  a  defendant  out  of  custody  in 
execution,  at  the  suit  of  a  plaintiff,  although  the  application  was  not  made 
until  eighteen  months  after  the  death  of  the  latter ;  it  appearing  that  he 
had  appointed  executors  who  were  still  alive,  and  had  not  assented  to  the 
discharge.(7i) 

By  the  statute  8  &  9  W.  III.  c.  27,  §  8,  "  if  the  marshal  or  warden,  or 
their  respective  deputies,  or  keeper  of  any  other  prison,  shall,  after  one 
day's  notice  in  writing  given  for  that  purpose,  refuse  to  show  any  prisoner 
committed  in  execution,  to  the  creditor  at  whose  suit  such  prisoner  was 
committed  or  charged,  or  to  his  attorney,  every  such  refusal  shall  be  ad- 
judged to  be  an  escape  in  law."  And,  by  §  9,  "  if  any  person  or  persons, 
desiring  to  charge  any  person  with  any  action  or  execution,  shall  desire  to 
be  informed  by  the  said  marshal  or  warden,  or  their  respective  deputies,  or 
by  the  keeper  of  any  other  prison,  whether  such  person  be  a  prisoner  in  his 
custody  or  not,  the  said  marshal  or  warden,  &c.  shall  give  a  true  note  in 

writing  thereof,  to  the  person  so  requesting  the  same,  or  to  his  law- 
[  *367  ]  ful  attorney,  upon  demand  at  his  *ofl5ce  for  that  purpose ;  or  in 

default  thereof,  shall  forfeit  the  sum  o^  fifty  pounds ;  And  if  such 
marshal  or  warden,  &c.  shall  give  a  note  in  writing,  that  such  person  is  an 
actual  prisoner  in  his  or  their  custody,  every  such  note  shall  be  accepted 
and  taken  as  sufficient  evidence  that  such  person  was  at  that  time  a 
prisoner  in  actual  custody." 

If  the  defendant  be  superseded  or  supersedeable,  for  want  of  proceedings 
Je/bre  judgment,  the  plaintiff  may  nevertheless  take  or  charge  him  in  exe- 
cution, at  any  time  a/i(gr  judgment  :(a)  but  he  cannot  do  so,  if  the  defend- 
ant be  superseded,  or  supersedeable,  for  want  of  being  charged  in  execu- 
tion ',{h)  his  only  remedy  in  that  case,  for  charging  the  person  of  the  defend- 
ant, being  by  action  of  debt  upon  the  judgment,  w'herein  the  defendant  can- 
not be  holden  to  special  bail  :(<?)  And  it  is  a  rule  in  the  Common  Pleas  that 
"  if  prisoners  discharged  by  supersedeas,  for  want  of  prosecution,  be  after- 
wards arrested  or  detained  in  custody,  by  action  of  debt  upon  the  judgment 
obtained  in  the  former  cause,  a  common  appearance  shall  be  accepted. "(t^) 
The  supersedeas  however,  in  the  first  action,  cannot  be  pleaded  in  bar  of 
the  second  :{e)  and,  after  judgment  obtained  in  the  second  action,  the 
defendant  is  again  liable  to  be  taken  in  execution. (/) 

[e)  King  v.  Millett,  H.  22  Geo.  III.  K.  B.    Combrune  y. ,  T.  42  Geo.  III.  K.  B.  M.  43 

Geo.  III.  K.  B.  S.  C.  accord ;  but  see  Barnes,  258,  366.  1  Bos.  &  Pul.  176. 
(/)  8  Durnf.  &  East,  407.  Ante,  339,  40.  [g)  2  New  Rep.  G.  P.  240. 

{h)  8  Moore,  145;  and  see  id.  529.    1  Bing.  431,  S.  C. 

(a)  R.  T.  2  Geo.  I.  ^  1,  (c),  K.  B.     1  Durnf.  &  East,  591,  (a).    7  East,  332.     Barnes,  376, 
Cas.  Pr.  C.  P.  136,  S.  C.  Davies  ^  Broicn,  in  the  Exchequer,  M.  27  Geo.  III.  S.  P. 

(b)  R.  T.  2  Geo.  I.  g  1,  (c),  K.  B.  Barnes,  376.  Cas.  Pr.  C.  P.  136,  S.  C.  7  East,  330. 

(c)  Cowp.  72. 

(d)  R.  H.  8  Geo.  II.  reg.  2,  C.  P.  ;  and  see  Cas.  Pr.  C.  P.  34.  Barnes,  376,  390.  1  Bos.  & 
Pul.  361.  Ante,  177;  but  see  1  Durnf.  &  East,  592. 

(e)  1  Durnf.  &  East,  273.  (/)  Cowp.  72.  2  Blac.  Rep.  982. 


AGAINST  PRISONERS,  ETC.  367 

In  the  King's  Bench  it  is  a  rule,(^)  that  "  the  marshal  present  to  the 
judges,  in  their  chamber  atWestminster  Hall,  within  the  fivst four  days  of 
every  term,  a  list  of  all  such  prisoners  as  are  supersedcable ;  showing  as  to 
what  actions,  and  on  what  account  they  are  so,  and  as  to  what  actions,  (if 
any,)  they  still  remain  not  supersedeable,"  And  by  another  rule(/<)  it  is 
ordered,  that  "  if,  by  reason  of  any  writ  of  error,  special  order  of  the  court, 
agreement  of  parties,  or  other  special  matter,  any  prisoner,  detained  in  the 
actual  custody  of  the  marshal,  be  not  entitled  to  a  supersedeas  or  discharge, 
to  which  such  prisoners  would,  according  to  the  general  rules  and  practice 
of  the  court,  be  otherwise  entitled,  for  want  of  declaring,  proceeding  to 
judgment,  or  charging  in  execution,  within  the  times  prescribed  by  such 
general  rules  and  practice,  then  and  in  every  such  case,  the  plaintifl'or  plain- 
tiffs, at  whose  suit  such  prisoner  shall  be  so  detained  in  custody,  shall,  with 
all  convenient  speed,  give  notice  in  writing  of  such  writ  of  error,  special 
order,  agreement,  or  other  special  matter,  to  the  marshal,  upon  pain  of  losing 
the  right  to  detain  such  prisoner  in  custody,  by  reason  of  such  special  mat- 
ter :  and  the  marshal  shall  forthwith,  after  the  receipt  of  such  notice,  cause 
the  matter  thereof  to  be  entered  in  the  books  of  the  prison  ;  and  shall  also 
present  to  the  judges  of  the  court  from  time  to  time,  a  list  of  all 
the  prisoners  to  whom  such  special  matter  shall  *relate,  showing  [  *3G8  ] 
such  special  matter,  together  with  the  list  of  prisoners  supersedea- 
ble, as  required  by  the  first-mentioned  rule."  And,  by  a  previous  rule,(aa) 
"  all  prisoners  who  have  been,  or  shall  be,  in  custody  of  the  marshal,  for  the 
space  of  six  months  after  they  are  supersedeable,  although  not  superseded, 
shall  be  forthwith  discharged  out  of  the  King's  Bench  prison,  as  to  all  such 
actions  in  which  they  have  been  or  shall  be  supersedeable."  There  is  also 
a  similar  rule  in  the  Common  Pleas,(66)  for  discharging  prisoners  out  of 
the  Fleet  prison. 

If  the  declaration  be  not  delivered,  and  an  affidavit  thereof  duly  made 
and  filed,  when  the  defendant  is  in  custody  of  the  sheriff,  &c.,  or  if  the 
plaintiflf  do  not  proceed  to  trial  or  final  judgment,  or  cause  the  defendant 
to  be  charged  in  execution,  in  due  time,  the  defendant,  we  have  seen,(c) 
may  be  discharged  out  of  custody,  by  writ  of  supersedeas^  or  otherwise, 
according  to  the  course  of  the  court,  on  filing  bail  by  hill^  or  entering  a 
common  appearance  by  original,  in  the  King's  Bench  ;(tZ)  or,  in  the  Com- 
mon Pleas,  he  may  be  discharged  by  writ  of  supersedeas^  on  entering  an 
appearance  with  the  proper  officer  ;(<3)  unless,  upon  notice  given  to  the 
plaintifi"s  attorney,  good  cause  be  shown  to  the  contrary.((/)  And  the 
defendant  may  also  be  discharged  out  of  custody,  when  bail  above  has  been 
put  in  and  justified  for  him,  and  allowed;  or  when  the  action  is  abated, 
discontinued  or  decided  in  his  favour.  But  where  B.,  being  in  custody  at 
the  suit  of  A.,  in  a  joint  action  against  B.  and  C,  justified  bail  in  an 
action  entitled  by  mistake  A.  against  B.  only,  and  a  rule  so  entitled  was 
served  on  the  marshal  of  the  King's  Bench,  who  thereupon  discharged  B. 
out  of  custody,  he  not  being  charged  in  more  than  one  action  at  the  suit 

{g)  R.  T.  56  Geo.  III.  K.  B.    5  Maule  &  Sel.  522. 
(A)  R.  M.  57  Geo.  III.  K.  B.    5  Maule  &  Sel.  522. 

{aa)  R.  T.  19  Geo.  III.  K.  B.  {bb)  R.  H.  6  &  T  Geo.  IV.  C.  P.  3  Bing.  442. 

(c)  Ante,  343,  260,  &c. 

{(i)  R.  H.  26  Geo.  III.  K.  B. ;  and  sec  R.  E.  5  W.  &  M.  rcj.  3,  I  G.  R.  T.  2  Geo.  I.  K.  B.   Say. 
Rep.  111. 

(e)  R.  E.  5  W.  &  M.  reg.  3,  g  6.  R.  E.  8  Geo.  I.  C.  P.   Ante,  343,  361. 


3G8  OF  THE  PROCEEDINGS 

of  A.  ;   it  was  holden  that  the  marshal  was  liable  in  an  action  for  an 
cscape.(/) 

To  discharge  a  prisoner,  for  not  declaring,  or  for  not  proceeding  to  final 
judgment  or  execution,  in  due  time,  his  attorney  or  agent  should  obtain 
a  ccrtificatc,{g)  or  copy  of  the  causes  wherewith  he  stands  charged,  from 
the  gaoler  or  keeper  of  the  prison  in  which  he  is  confined, (7i)  if  in  custody 
of  a  sheriff,  &c. ;  or,  if  in  custody  of  the  marshal  or  warden,  from  the 
clerk  of  the  papers  of  the  King's  Bench  or  Fleet  prison ;  and  in  the  for- 
mer case,  an  affidavit  must  be  made,  of  the  gaoler  having  signed  the 
same  ;(z')  upon  which  a  summons(A")  should  be  taken  out,  and  served  on  the 
plaintiff's  attorney  or  agent,  to  attend  a  judge,  and  show  cause  why  a  writ 
of  sujyersedeas  should  not  issue  to  discharge  the  defendant,  if  in 
[  *3C9  ]  ^custody  of  a  sheriff,  &c.,  or  warden  of  the  Fleet ;  or,  if  in  cus- 
tody of  the  marshal,  why  he  should  not  be  discharged  out  of 
such  custody,(a)  on  filing  common  bail  by  bill,  or  entering  a  common 
appearance  by  original. 

At  the  time  appointed  by  the  summons,  the  plaintiff's  attorney  or  agent 
either  attends  and  consents  to  an  order,  shows  cause  against  it,  or  does 
not  attend.  In  the  latter  case,  an  affidavit  being  made  of  the  service  and 
attendance, (6)  the  judge  will  make  an  order^cc)  for  the  defendant's  dis- 
charge on  the  first  summons,  if  the  application  be  not  for  declaring,  in  the 
King's  Bench;  but  in  the  Common  Pleas,  the  order  on  the  first  summons, 
if  not  consented  to,  is  only  an  order  nisi,  unless  cause  be  shown  within 
six  dajs;{dd)  and  in  either  court,  if  it  be  for  not  proceeding  to  judgment 
or  execution  in  due  time,  there  must  be  three  summonses,  before  the  judge 
will  make  an  order  for  non-attendance  ;  and  in  a  country  cause,  the  order 
on  an  attendance  is  not  absolute  in  the  first  instance,  but  only  an  order 
oiisi,  unless  cause  be  shown  within  a  limited  time,  to  give  the  agent  an 
opportunity  of  writing  to  his  client  for  instructions. 

When  an  order  is  made  for  the  defendant's  discharge,  common  bail 
should  be  filed  with  the  clerk  of  the  common  bails  by  hill,{e)  or  a  common 
appearance  entered  with  the  filacer  by  original :  and  if  the  defendant  be 
in  custody  of  the  marshal,  a  certificate  from  the  clerk  of  the  bails  or  fila- 
cer, of  the  bail  being  filed,  or  an  appearance  entered,  will  be  a  sufficient 
ground  for  discharging  him,  without  a  super sedeas.{ff)  But  if  the  defen- 
dant be  in  custody  of  a  sheriff,  &c.  or  of  the  warden  of  the  Fleet,  a  writ 
of  supersedeas  is  necesssir  J  •,[gg)  for  issuing  wdiich,  in  the  King's  Bench  by 
bill,  the  bail-piece,  signed  by  one  of  the  judges,  is  a  warrant  to  the  officer, 
with  whom  it  is  to  be  left ;  and  he  delivers  it  over  to  the  clerk  of  the  com- 
mon bails  to  be  filed. (/iA)     By  original,  the  writ  of  supersedeas  is  made  out 

(/)  5  East,  292. 

(^g)  It  was  formerly  necessary  to  get  a  certificate  from  the  clerk  of  the  declarations,  in 
the  King's  Bench,  that  no  bill  or  declaration  was  filed  in  his  office  against  the  defendant. 
R.  T.  2  Geo.  I.  g  1,  (^^),K.  B.  1  Str.  474.  But  this  certificate  is  now  dispensed  with,  except 
in  cases  where  a  declaration  has  been  delivered,  but  no  bill  filed. 

{h)  R.  T.  2  Geo.  I.  ^  1,  (6),  K.  B.  Append.  Chap.  XV.  §  30. 

[i)  Append.  Chap.  XV.  ^  31.  [k)  Id.  §  32. 

(a)  R.  E.  16  Car.  II.  reg.  1,  K.  B. ;  and  see  3  Maule  &  Sel.  144,  5. 

(b)  R.  E.  16  Car.  II.  reg.  1,  K.  B.    Append.  Chap.  XVIII.  I  14,  15. 

{cc)  Append.  Chap.  XV.  |  33.  (dd)  Imp.  C.  P.  T  Ed.  677. 

(e)  R.  T.  9  W.  III.  K.  B. 

( /)  R.  T.  2  Geo.  I.  §  2,  (J),  K.  B. 

{99)  Append.  Chap.  XV.  §  35,  &c.  .4?2<e,  343,  361. 

(M)  R.  T.  2  Geo.  I.  §  2,  [h),  K.  B. 


AGAINST  PRISONERS,  ETC,  369 

l)y  the  filacer :(/)  and,  in  the  Common  Pleas,  it  is  signed  by  the  prothono- 
taries.(/i;) 

A  fraud  having  been  attempted  to  be  practised,  in  o])taining  the  dis- 
charge of  a  prisoner  from  the  custody  of  the  Avarden,  by  altering  the  sum 
for  ^vhich  bail  was  allowed,  in  the  order  for  the  writ  of  8Ujtir8edea8,{I)  a 
general  rule  was  made  in  the  Common  I'leas,  that  "in  every  rule,  and 
also  in  every  judge's  order,  for  the  allowance  of  bail,  which  contains  also 
an  order  for  a  supciscdeas  to  discharge  the  defendant  out  of  custody, 
there  be  inserted  in  the  body  of  such  rule  or  order,  in  words  at  length,  the 
sum  for  which  such  bail  was  allowed  ;  and  that  the  same  sum  be  also 
written  in  figures,  in  the  margin  thereof:  And  that  there  be  inserted  in 
the  body  of  every  such  supersedeas,  in  words  at  length,  the  sum 
for  which  such  bail  *was  allowed:  and  that  the  prothonotary  or  [  *370  ] 
his  clerk,  who  signs  the  siqjersedeas,  shall  indorse  the  same  sum 
in  figures  on  the  said  writ ;  which  indorsement  shall  be  attested  by  the 
initials  of  such  prothonotary  or  clerk  :  And  that  the  said  sum  so  directed 
to  be  inserted  in  the  body  of  such  rule  or  order,  and  in  the  body  of  the 
said  writ,  and  the  said  sum  also  directed  to  be  written  in  figures  in  the 
margin  of  the  rule  or  order,  and  to  be  indorsed  on  the  writ  of  supersedeas, 
shall  in  no  case  be  written  on  an  erasure  :  and  every  such  rule  and  order 
shall  be  retained  and  filed  in  the  prothonotaries'  oflice."(rt) 

Having  thus  shown  in  what  manner  the  defendant  is  to  be  discharged, 
it  w^ill  be  proper  to  consider  what  causes  will  be  sufficient  to  prevent  his 
discharge,  for  not  declaring,  proceeding  to  trial  or  final  judgment,  or 
charging  him  in  execution.  We  have  already  seen,(/>)  that  where  a  pri- 
soner is  supcrsedeable,  for  want  of  filing  a  bill  against  him  in  due  time,  he 
waives  the  irregularity  by  afterwards  pleading.  When  there  are  two 
defendants,  and  one  of  them  is  arrested  and  detained  in  prison,  but  the 
other  absconds,  so  that  the  plaintifl:'  is  obliged  to  proceed  to  outlawry 
against  him,  this  seems  to  be  a  good  cause  for  not  declaring  against  the 
defendant  who  is  in  prison,  until  the  other  defendant  be  outlawed  :(6')  But 
the  plaintiff  in  such  case  must  move  for  time  to  declare  against  the  defen- 
dant in  custody. (t?) 

After  declaration,  if  the  venue  be  laid  in  a  county  where  the  assizes  are 
holden  but  once  a  year,  it  may  be  impossible,  by  the  course  of  the  court, 
for  the  plaintiff  to  try  his  cause  in  three  terms:  this  therefore,  when  it  hap- 
pens, is  allowed  to  be  a  good  cause  for  not  proceeding  to  trial. (f)  So 
where  the  writ,  in  a  country  cause,  was  returnable  in  Mieltaelmas  term, 
and  the  plaintiff  declared  in  Hilary,  and  the  defendant  imparled  till 
Easter  term,  by  which  means  the  plaintifi"  was  disabled  from  proceeding 
to  trial  till  the  next  summer  assizes,  a  judge  refused  to  grant  a  superse- 
deas.{f)  And  in  like  manner,  where  the  court  take  time  to  give  judg- 
ment on  demurrer,  &c.  they  will  not  sufi'er  the  plaintiff  to  be  prejudiced, 
but  will  allow  this  to  be  a  good  cause  for  not  proceeding  to  final  judg- 
ment.(^)     Where  a  prisoner,  who  had  been  charged  with  a  declaration  as 

(»■)  Trye,  in  pref. 

{k)  Imp.  C.  V.'l  Ed.  G77,  681.  {I)  7  Taunt.  437.    1  Moore,  144,  S.  C. 

(o)Jl.  E.  57  Geo.  III.  C.  P.  1  Moore,  25G.  2  Chit.  Rep.  379;  and  see  7  Taunt.  551. 
\h)  An(e,3bl. 

(c)  Barnes,  401.    2  Blac.  Rep.  759  ;  but  see  Pr.  Ref?.  327,  semb.  contra. 

(d)  Per  Cur.  E.  12  Geo.  III.  K.  B.  2  Cromp.  3  Ed.  8.  Barnes,  396,  401.  2  Blac.  Rep.  759. 
2  New  Rep.  C.  P.  404.  (e)  Barnes,  383. 

(/)  Cripps  .j-  Wiffffin,  T.  28  Geo.  III.  K.  B.  (y)  Barnes,  383  ;  and  see  1  Ken.  376. 


370  OF  THE  PROCEEDINGS  AGAINST  PRISONERS,  ETC, 

of  Trinity  term,  absconded  during  the  long  vacation,  and  did  not  return 
into  custody  till  Hilary  term  following,  the  court  of  Common  Pleas  would 
not  discharge  him,  though  the  plaintiff  had  not  signed  judgment  before 
the  end  of  Hilary  term. (A) 

After  trial  or  final  judgment,  a  writ  of  error  and  injunction  are,  whilst 
they  continue  in  force,  good  causes  for  not  charging  the  defendant  in  exe- 
cution.(^')  So,  a  writ  of  error  has  been  deemed  a  good  cause  for 
[  *371  ]  not  ^charging  him  in  execution,  although  the  bail  thereto  do  not 
justify.(a)  And  where  the  plaintiffs,  being  assignees  of  a  bank- 
rupt, were  prevented  from  charging  the  defendant  in  execution,  by  his 
pleading  a  bad  plea  to  a  scire  facias^  the  court  of  Common  Pleas  would 
not  grant  a  supersedeas. [b)  And  in  that  court,  it  seems  that  a  prisoner 
in  custody  on  mesne  process  may  be  charged  in  execution,  after  judgment 
against  him,  notwithstanding  the  allowance  of  a  wu'it  of  error. (c)  A  regu- 
lar treaty  of  accommodation,  or  agreement  for  a  compromise,  is,  in  any 
stage  of  the  action,  a  good  cause  for  not  declaring,  kc.:{d)  But  no  treaty 
or  agreement  is  sufficient  to  prevent  a  supersedeas,  unless  it  be  in  writing, 
signed  by  the  defendant  or  his  attorney,  or  some  person  duly  authorized 
by  the  defendant ;  and  it  be  expressed  therein,  that  proceedings  are  stayed 
at  the  defendant's  request. (ge) 

It  is  also  a  rule  in  all  the  courts,  (_^)  for  preventing  unnecessary  ex- 
pense to  plaintiffs,  in  case  of  notice  given  by  prisoners  of  their  intention 
to  apply  for  their  discharge,  under  any  act  made  for  the  relief  of  insolvent 
debtors,  that  "after  such  notice  given  to  any  plaintiff,  no  prisoner  shall 
be  superseded  or  discharged  out  of  custody,  at  the  suit  of  such  plaintiff, 
by  reason  of  such  plaintiff's  forbearing  to  proceed  against  him,  according 
to  the  rules  and  practice  of  the  court,  from  the  time  of  such  notice  given, 
until  some  rule  or  order  shall  be  made  in  the  cause  in  that  behalf,  by  the 
court,  or  one  of  the  judges  thereof."  And,  by  the  statute  7  Geo.  IV. 
c.  57, (gg)  "no  prisoner  who  shall  have  petitioned  the  court  for  relief  under 
that  act  shall,  after  the  filing  of  his  or  her  petition,  be  discharged  out  of 
custody,  as  to  any  action,  suit  or  process,  for  or  concerning  any  debt,  sum 
of  money,  damages,  or  claim,  with  respect  to  which  an  adjudication  in  the 
matter  of  such  petition  can  under  the  provisions  of  that  act  be  made,  by  or 
by  virtue  of  any  supersedeas,  judgment  of  non  pros,  or  judgment  as  in  the 
case  of  a  nonsuit,  for  want  of  the  plaintiff  or  plaintiffs  in  such  action  suit 
or  process  proceeding  therein."  Where  the  defendant,  after  surrendering 
in  discharge  of  his  bail,  in  an  action  in  the  Common  Pleas,  was  committed 
to  criminal  custody  for  a  misdemeanor,  and  continued  in  such  custody,  the 
court  would  not  discharge  him  from  the  action,  because  the  plaintiff  had 
omitted  to  charge  him  in  execution  within  ttvo  terms  after  his  surrender. (ZtA) 
And  where  the  defendant,  after  verdict,  applied  for  his  discharge  under 

(A)  4  Moore,  380.  2  Brod.  &  Bing.  35,  S.  C.  (?)  R.  H.  26  Geo.  III.  K.  B. 

(a)  6  Maule  &  Sel.  139. 
(6)  2  Wils.  378. 

(c)  1  Bos.  &  Pul.  292;  and  see  Barnes,  316.  Sedqucere?  and  see  2  Wils.  380. 

(d)  4  Bur.  2063.  2  Blac.  Rep.  918.  3  Wils.  455,  S.  C.   1  East,  18,innotis. 

(ee)  R.  H.  26  Geo.  III.  K.  B.  R.  H.  35  Geo.  III.  C.  P.  R.  T.  26  &  27  Geo.  II.  ?  11,  in  Scac. 
Man.  Ex.  Append.  216. 

(/)  R.  E.  3  Geo.  IV,  K.  B.  5  Barn.  &  Aid.  799.  2  Chit.  Rep.  377  1  Dowl.  &  Ryl.  472. 
R.  M.  3  Geo.  IV.  C.  P.    7  Moore,  459.    1  Bing.  120.  R.  M.  3  Geo.  IV,  in  Scac.   11  Price,  422,  3, 

iffff)  I  15,  and  see  stat.  3  Geo.  IV.  c.  123,  §  11. 

{hh)  1  Bing.  221.  8  Moore,  81,  S.  C;  and  see  4  Dowl.  &  Rjl.  216,  347,  aw^e,  214. 


OF  THE  RELIEF  OF  PRISONERS,  ETC.  371 

the  insolvent  debtors's  act,  and  was  sentenced  to  ciglitecn  months' 
imprisonment,  the  court  of  Common  Pleas  heM,  that  though  no  [  *372  ] 
*further  proceedings  had  been  taken,  the  death  of  the  plaintiff" 
did  not  entitle  the  defendant  to  be  discharged  at  his  suit. (a) 


By  the  common  law,  a  prisoner  in  execution  was  to  be  kept  in  salvd  ct 
arctd  custodid,  till  he  satisfied  the  plaintiff.  But,  in  order  to  prevent  any 
unnecessary  hardship  or  oppression,  rules  of  court  were  made,  in  the 
beginning  of  the  reign  of  king  George  the  second,  for  the  better  govern- 
ment of  the  King's  Bench  and  Fleet  prisons,(fi)  and  the  preservation  of 
good  order  therein  ;  which  have  been  since  extended  and  explaineil  by 
subsequent  rules  :{c)  and  tables  o^  fees  were  settled  and  established,  to  be 
taken  by  the  marshal  or  warden,  for  any  prisoner's  commitment,  or  comin"- 
into  gaol,  or  chamber  rent  there,  or  discharge  thence,  in  any  civil  action. ((Z) 
By  the  statute  55  Geo.  III.  c.  50,  all  fees  and  gratuities  paid  or  payable 
by  any  prisoner,  on  the  entrance,  commitment  or  discharge  to  or  from 
prison,  shall  absolutely  cease,  and  the  same  are  thereby  abolished  and 
determined  ;  with  an  exception  of  the  King's  Bench  prison.  Fleet,  Mar- 
shalsea,  and  Palace  courts  :(e)  And,  by  the  statute  56  Geo.  III.  c.  IIG, 
§  3,  "  the  said  recited  act,  and  the  provisions  therein  contained,  shall 
extend  to  all  prisoners,  as  well  civil  as  criminal,  whether  confined  for  debt 
or  crime,  in  any  of  the  prisons  in  England,  except  as  to  the  said  prisons 
in  the  said  act  excepted."  There  is  also  a  clause  in  the  Lords'  act,(/) 
for  the  further  protection  of  prisoners  against  oppression  of  inferior 
officers,  and  the  exaction  of  gaolers  to  whose  custody  they  may  be  com- 
mitted. 

For  the  subsistence  of  prisoners  confined  in  county  gaols,  and  in  the 
King's  Bench,  Fleet,  and  Marshalsea  prisons,  certain  allowances  are  made 
out  of  the  county  rates,  by  the  statutes  14  Eliz.  5,  §  37.  43  Eliz.  c.  2, 
§  14, 15,  and  53  Geo.  III.  c.  113.  By  the  52  Geo.  III.  c.  160,  justices  of  the 
peace  are  enabled  to  order  parochial  relief  to  prisoners  confined  under  mesne 
process  for  debt,  in  such  gaols  as  are  not  county  gaols.  By  the  53  Geo.  III. 
0.  21,  the  commissioners  of  the  customs  and  excise  are  authorized  to  make 
allowance,  for  the  necessary  subsistence  of  poor  persons  confined  under  Ex- 
chequer process,  &c.  And,  by  the  last  general  insolvent  act,(^7)  "the 
court  for  the  relief  of  insolvent  debtors  may  order  and  direct  the  assignees 
to  pay  to  any  prisoner  who  shall  have  petitioned  the  court  for  relief  under 
that  act,  out  of  his  or  her  estate  aud  eff'ects,  such  allowance  for  his  or  her 
support  and  maintenance,  during  such  prisoner's  imprisonment, 
and  previous  to  the  adjudication  in  the  matter  *of  his  or  her  [  *373  ] 
petition,  as  to  the  said  court  shall  seem  reasonable  and  fit.  And 
in  all  cases  where  such  prisoner  shall,  upon  such  adjudication,  be  liable  to 
further  imprisonment,  at  the  suit  of  his  or  her  creditor  or  creditors,  it 

(a)  1  Bing.  431.  8  Moore,  529,  S.  C. 

(6)  R.  M.  3  Geo.  II.  K.  B.    R.  H.  3  Geo.  II.  C.  P.  Ante,  52,  (</),  53,  ( f). 

(c)  R.  T.  19  Geo.  III.  R.  T.  21  Geo.  III.  R.  II.  57  Geo.  III.  R.  M.  58  Geo.  III.  K.  B.  R.  T. 
53  Geo.  III.  K.  B.  1  Bam.  &  Aid.  728.  2  Chit.  Rep.  373.  R.  H.  59  Geo.  III.  K.  B.  2  Barn.  & 
Aid.  403.  2  Chit.  Rep.  374.  2  Barn.  &  Cres.  344.  3  Dowl.  &  Rvl.  599,  S.  C. 

{d)  Jan.  19.  3  Geo.  II.  C.  P.  Dec.  17.  4  Geo.  II.  K.  B.  An(e,'b3,  (/). 

(e)  §  14.  (/)  32  Geo.  II.  c.  28,  ^  12.  Ante,  231,  2. 

i^g)  1  Geo.  17.  c.  57,  §  17  ;  and  sec  stat.  1  Geo.  IV.  c.  119,  g  5. 


373  OF  THE  RULES  OF  THE  PRISON. 

shall  be  lawful  at  any  time  for  the  said  court,  on  the  application  of  such 
prisoner,  to  order  the  creditor  or  creditors,  at  whose  suit  he  or  she  shall 
be  so  imprisoned,  to  pay  to  such  prisoner  such  sum  or  sums  of  money,  not 
exceeding  the  rate  of  four  shillings  by  the  week  in  the  whole,  at  such 
times,  and  in  such  manner,  and  in  such  proportions,  as  the  said  court  shall 
direct :  and  that  on  failure  of  payment  thereof,  as  directed  by  the  said 
court,  the  said  court  shall  order  such  prisoner  to  be  forthwith  discharged 
from  custody,  at  the  suit  of  the  creditor  or  creditors  so  failing  to  pay  the 
same."(a) 

The  rigour  of  imprisonment  is  also  considerably  abated,  by  a  prisoner's 
being  allowed,  on  giving  security  to  the  marshal  or  warden,  the  benefit  of 
the  rules  of  the  King's  Bench  or  Fleet  prison,  or  of  living  within  certain 
limits,(?>)  out  of  its  walls.  This  benefit  is  extended  to  prisoners  in  execu- 
tion, as  well  as  to  those  who  are  confined  on  mesne  process  ;  and  it  may  be 
had  by  one  in  custody  on  an  excommunicato  cajnendo  :{c)  but  it  is  never 
granted,  except  under  very  special  circumstances,((:Z)  to  a  prisoner  in 
execution  on  a  criminal  account  :(g)  and,  generally  speaking,  prisoners  in 
custody  for  a  contempt  are  not  entitled  to  the  rules  of  the  King's  Bench 
prison. (/)  But  where  the  marshal,  in  consequence  of  a  surgeon's  certi- 
ficate that  a  prisoner  in  his  custody  for  a  contempt,  in  not  paying  money 
pursuant  to  the  master's  allocatur,  was  dangerously  ill,  and  would  die  if 
closely  confined,  allowed  the  prisoner  the  rules  until  he  got  better,  and 
afterwards  confined  him  again  within  the  walls  ;  the  court  refused  to  pro- 
ceed against  the  marshal,  by  ordering  him  to  pay  the  money,  for  the 
non-payment  of  which  the  prisoner  was  in  contempt,  and  dismissed  the 
application  with  costs.  ((/^)  For  preventing  prisoners  from  breaking  the 
rules,  it  is  ordered,  that  "whensoever  it  shall  be  made  appear  to  the  court, 
that  any  person,  having  the  benefit  of  the  rules  of  the  prison  of  the  King's 
Bench,  shall,  during  such  time  as  he  has  had  the  benefit  of  such  rules, 
have  escaped  and  gone  at  large  out  of  and  beyond  the  limits  of 
[  *374  ]  the  said  *rules,  every  such  person  shall  thenceforth  lose  and  be 
deprived  of  the  benefit  of  such  rules :  and  be  thereafter  wholly 
incapable  of  enjoying  the  same,  under  any  grant  thereof;  and  shall  thence- 
forth be  kept  and  confined  a  prisoner,  within  the  walls  of  the  said  prison, 
unless  the  court  shall  otherwise  order."(a«)  And,  by  a  late  rule,(56)  "no 
clerk,  turnkey,  officer,  or  other  person,  employed  by  or  under  the  marshal, 
shall  receive  or  take,  except  from  the  marshal,  any  fee,  gratuity,  or  reward, 

(a)  T  Geo.  IV.  c.  57,  ^  56;  and  see  stat.  1  Geo.  IV.  c.  119,  §  19. 

(6)  For  the  limits  of  the  rules  of  the  King's  Bencli  prison,  see  R.  E.  30  Geo.  III.  K.  B.  3 
Durnf.  &  East,  583.  R.  E.  35  Geo.  III.  K.  B.  6  Durnf.  &  East,  305.  R.  T.  36  Geo.  III.  K.  B. 
6  Durnf.  &  East,  778.     And  for  the  limits  of  the  rules  of  the  Fleet  prison,  see  9  Moore,  283. 

2  Bing.  163. 

(c)  I  Str.  413.  And  for  the  nature  of  this  writ  see  7  Durnf.  &  East,  153.  See  also  the 
statute  53  Geo.  III.  c.  127,  by  which  excommunication  is  discontinued,  except  in  certain 
cases  ;  and  a  writ  de  cotitumace  capiendo  is  given,  instead  of  the  writ  de  excommunicato  capiendo, 
for  non-appearance  in,  or  disobeying  the  orders  of,  any  ecclesiastical  court,  or  for  a  con- 
tempt committed  in  the  face  of  such  court.  See  also  5  Barn.  &  Aid.  791.  1  Dowl.  &  Ryl. 
460,  S.  C.  3  Dowl.  &  Ryl.  570.  The  ecclesiastical  court,  however,  has  no  jurisdiction  over 
trusts:  and  therefore  where  a  party,  sued  as  a  trustee,  was  arrested  on  a  writ  de  contumace 
capiendo,  the  court  of  the  King's  Bench  discharged  him  out  of  custody.     1  Barn.  &  Ores.  655. 

3  Dowl.  &  Ryl.  41,  S.  C. 

(d)  4  Dowl.  &  Ryl.  832.  (e)  1  Str.  196.     2  Str.  845. 

(/)  2  Str.  817.  {(/g)  2  Dowl.  &  Ryl.  709 ;  and  see  4  Dowl.  &  Ryl.  832. 

(aa)  R.  H.  57  Geo.  III.  K.  B. 

(bb)  R.  H.  2  &  3  Geo.  IV.  K.  B.  5  Barn.  &  Aid.  560.  2  Chit.  Rep.  376,  7.  1  Dowl.  & 
Ryl.  471. 


HELIEF  OF  PRISONERS,  ON  LORDS'  ACT.  374 

for  or  in  respect  of  making  inquiry  into  tlie  sufficiency  of  any  person  or 
persons  proposed  or  intended  to  give  security,  ui)un  the  granting  of  the 
rules  of  the  King's  ]5cnch  prison,  or  otherwise  in  respect  of  the  granting 
of  the  said  rules:  and  that  the  marshal  do  dismiss  any  person  who  shall 
oflfend  therein." 

A  prisoner  likewise,  whether  he  be  detained  in  custody  on  mesne  pro- 
cess, or  in  execution,  may,  on  petition  to  the  court, (c)  have  day  rules 
allowed  him,  or  the  liberty  of  going  out  of  the  prison  or  its  rules,  for  trans- 
acting his  business  in  term  time.  The  petition  for  this  purpose  must  be 
signed  by  the  prisoner,  before  he  goes  at  large  :(c^)  and  when  the  day  rule 
is  made  in  the  King's  I3ench,  it  covers,  by  relation  back,  the  liberation  of 
a  prisoner  who  had  signed  the  petition,  but  had  gone  out  of  prison  before 
the  sitting  of  the  court  on  the  same  day ;  though  the  marshal  was  sued  for 
the  escape  before  the  sitting  of  the  court. (c)  But  every  prisoner  having 
a  day  rule,  must  return  within  the  walls  or  rules  of  the  prison,  at  or  before 
nine  o'clock  in  the  evening  of  the  day  for  which  such  rule  shall  be 
granted. (/)  It  was  formerly  a  rule,  that  "no  prisoner  in  the  King's 
Bench  prison,  or  within  the  rules  thereof,  should  have,  or  be  entitled  to 
have,  day  rules,  above  three  days  in  each  terra;"  and  another  rule  was 
made,(^)  by  which  it  was  ordered,  that  "notwithstanding  the  above  rule, 
if  any  person  in  the  King's  Bench  prison  should  thereafter  state,  by  affi- 
davit, any  special  cause,  to  the  satisfaction  of  this  court,  for  having  an 
additional  day  rule  or  day  rules,  be3'-ond  those  allowed  by  the  aforesaid 
rule,  such  additional  rule  or  rules  should  be  granted  accordingly,  for  any 
day  or  days  ensuing  such  application."  But,  by  a  subsequent  rule, (A)  the 
two  former  ones  were  repealed  :  so  that  the  practice  is  now  the  same,  as  it 
was  before  the  three  last  rules  were  made  upon  the  subject. (i) 

Besides  these  indulgences,  some  permanent  provisions  were  made  for  the 
relief  of  prisoners  in  execution,  b}'-  the  statute  32  Geo.  II.  c.  28,  §  13, 
which  (originating  in  the  House  of  Lords,)  is  called  the  Lords'  act.  By 
this  statute,  "  if  any  person  shall  be  charged  in  execution,  for  any  sum  of 
money  not  exceeding  lOOZ.,"  (since  extended  to  200/.  by  the  2G  Geo.  III. 
c.  44,  §  1,  and  to  300Z.  by  the  33  Geo.  III.  c.  5,  §  1,  which  is  made  per- 
petual by  the  39  Geo.  III.  c.  50,  "  and  shall  be  minded  to  deliver 
up  to  *his  creditors,  all  his  estate  and  effects;  in  satisfaction  of  his  [  *375  ] 
debts,  he  may,  in  order  to  entitle  himself  to  the  benefit  of  the 
above  acts,  before  the  end  of  the  first  term  next  after  he  shall  be  charged  in 
execution,  exhibit  a  petition  to  any  court  of  law,  from  whence  the  process 
issued,  upon  Avhich  he  was  taken  and  charged  in  execution  ;  or  to  the  court 
into  which  he  shall  be  removed  by  habeas  corpus,  or  charged  in  custody ; 
certifying  the  cause  of  his  imprisonment,  and  setting  forth  a  just  and  true 
account  of  all  the  real  and  personal  estate,  which  he,  or  any  persons  in 
trust  for  him,  was  or  were  entitled  to,  at  the  time  of  his  so  petitioning, 
and  also  at  the  time  of  his  first  imprisonment,  and  of  all  incumbrances  and 
charges  (if  any,)  aflfccting  the  same,  and  likewise  a  just  and  true  account 
of  all  securities,  deeds,  evidences,  writings,  &c.,  concerning  the  same,  and 

(c)  For  the  form  of  the  pclilion  for  a  day  rule,  iu  K.  B.  see  Append.  Chap.  XV.  g  57;  and 
for  the  day  rule  thereou,  id.  \  58. 

{d)  1  Str.  503.  (c)  9  East,  151  ;  niul  see  S  .Mod.  80,  ante,  235. 

(/)  R.  E.  30  Geo.  ITT.  K.  B.  3  Durnf.  &  East,  r)84. 

(<7)  R.  M.  37  Geo.  III.  K.  B.  7  Diirnf.  &  East,  82. 

{h)  R.  H.  45  Geo.  III.  K.  B.     G  East,  2.  («)  2  Smith  R.  340  ;  and  see  id.  5,  27. 


375  RELIEF  OF  PRISONERS, 

the  names  and  places  of  abode  of  the  witnesses,  &c. ;  upon  which  he  shall 
be  entitled  to  his  discharge,  on  complying  with  the  requisites  of  the  act." 
And,  by  the  statute  40  Geo.  III.  c.  6,  "  all  persons  who  are  or  shall  be  in 
custody  for  contempt  of  any  court  of  equity^  by  not  paying  any  sum  or 
sums  of  money  or  costs,  ordered  to  be  paid  by  any  decree  or  order  of 
any  such  court,  shall  be  entitled  to  the  benefit  of  the  said  several  acts  of 
parliament,  and  shall  be  subject  to  all  the  said  terms  and  conditions,  as 
are  therein  expressed  and  declared,  with  respect  to  prisoners  for  debt 
only.'» 

The  humane  provisions  of  the  Lords'  act  were  rendered  as  beneficial  as 
possible,  by  the  liberality  of  the  judges,  who  construed  it  to  extend  to  pri- 
soners in  custody  upon  an  attachment,  for  the  non-performance  of  an 
award. (6)  or  non-payment  of  costs,(c)  &c. ;  which  construction  has  been  re- 
cognized by  the  statute  33  Geo.  III.  c.  5,  §  4,  whereby,  after  reciting  that 
persons  are  often  committed  on  attachments,  for  not  paying  money  awarded, 
under  submissions  to  arbitration  by  or  made  rules  of  court,  and  likewise  for 
not  paying  costs  duly  and  regularly  taxed  and  allowed,  aftei'  proper  de- 
mands made  for  that  purpose,  and  also  upon  writs  of  excommunicato  capi- 
endo, or  other  process  for  or  grounded  on  the  non-payment  of  costs  or 
expenses,  in  causes  or  proceedings  in  ecclesiastical  courts ;  it  is  declared 
and  enacted,  that  "  all  such  persons  are  and  shall  be  entitled  to  the  benefit 
of  this  act,  and  subject  to  the  same  terms  and  conditions  as  are  therein 
expressed  and  declared,  with  respect  to  prisoners  for  debt  only."(t^)  And 
a  defendant  in  custody  upon  an  attachment,  who  had  been  convicted  on  an 
indictment  for  an  assault  and  upon  reference  to  the  king's  coroner  and 
attorney,  was  awarded  to  pay  so  much  for  cost8,  and  so  much  for  compen- 
sation to  the  prosecutrix,  was  held  to  be  entitled  to  be  discharged  as  an 

insolvent  debtor,  under  the  Lords'  act,  without  the  aid  of  *the 
[  *376  ]  statute  33  Geo.  III.  c.  b.{aa)     It  has  also  been  determined,  that 

the  Lords'  act  extends  to  prisoners  charged  in  execution,  on  pro- 
cess issuing  out  of  inferior,  as  well  as  superior  courts. (55)  And  it  is  no 
objection  to  a  prisoner's  being  discharged  under  it,  that  his  creditor  is 
dead  ;(cc)  or  that  the  defendant  has  agreed  not  to  take  the  benefit  of  the 
act.(tM)  And  where  the  defendant,  in  the  Common  Pleas,  is  charged  in 
execution  with  the  penalty  of  a  bond,  it  may  be  reduced  to  the  principal 
and  interest,  in  order  to  entitle  him  to  such  benefit.(e)  But  the  defendant 
in  a  qui  tarn  action  is  not  entitled  to  the  benefit  of  the  Lords'  act;(/)  nor 
a  defendant  in  custody  under  a  writ  de  excommunicato  cajnendo,  for  con- 
tumacy in  not  paying  a  sum  for  alimony,  and  also  for  costs  in  the  ecclesi- 
astical court. (^)     And  a  prisoner  who  is  taken  in  execution  for  more  than 

(a)  See  also  the  statute  57  Geo.  III.  c.  117,  §  6,  by  which  persons  imprisoned  under  any 
writ  of  capias,  on  extents  in  aid,  may  apply  to  the  court  of  Exchequer  for  their  discharge. 
3  Price,  95  ;  and  see  stat.  1  Geo.  IV.  c.  119,  §  41  ;  and  the  last  general  insolvent  act.  (7 
Geo.  IV.  c.  57,)  ^  15,  post,  1066. 

(6)  1  Durnf.  &  East,  266.     8  Taunt.  57.     1  Moore,  494,  S.  C. 

(c)  Cowp.  136.  1  Durnf.  &  East,  266.  4  Durnf.  &  East,  317,  809.  7  Durnf.  &  East,  156. 
1  Bos.  &  Pul.  336.  13  East,  190.  8  Taunt.  57.  1  Moore,  494,  S.  C.  2  Barn.  &  Aid.  59. 
M'Clel.  577  ;  but  see  10  East,  408. 

(d)  And  see  the  statutes  52  Geo.  III.  c.  13.  53  Geo.  III.  c.  102,  |  47.  1  Geo.  IV.  c.  119, 
§  4,  16.     7  Geo.  IV.  c.  57,  §  10,50. 

(aa)  13  East,  190.  (bb)  7  East.  84.    3  Smith,  P.,.  102,  S.  C. 

{cc}  Barnes,  370.     1  Bos.  &  Pul.  336.  (dd)  3  Smith,  R.  51. 

le)  2  Blac.  Rep.  760  ;  but  see  Barnes,  367,  369,  371. 

(/)  3  Bur.  1322.     1  Blac.  Rep.  372,  S.  C.  (y)  11  East,  231. 


ON  LORDS'  ACT.  376 

300?.  and  afterwards  reduces  his  debt  below  that  sum,  is  not  entitled  to  be 
discharged  under  it,  in  the  next  term  after  he  has  so  reduced  his  debt,  un- 
less it  be  also  the  next  term  after  he  was  taken  in  execution. (Zt) 

It  was  also  provided,  by  the  statute  32  Geo.  II.  c.  2^,  §  24,  that  ''  no 
person  who  should  have  taken  the  benefit  of  any  act  for  tiic  relief  of  in- 
solvent debtors  should  have  or  receive  any  benefit  or  advantage  under  this 
act,  or  be  deemed  to  be  within  the  meaning  thereof,  so  as  to  gain  any  dis- 
charge, unless  compelled  by  any  creditor  to  discover  and  deliver  up  his 
or  her  estate  or  effects:"  which  clause  was  held  to  apply  only  to  persona 
having  taken  the  benefit  of  general  insolvent  acts,  and  not  to  persons  pre- 
viously discharged  under  the  Lords'  act.(i)  And,  by  a  subsecjuent  act  of 
parliament, (/c)  this  clause  was  altogether  repealed. 

The  act  requires  that  the  petition  should  be  exhibited  before  the  end  of 
the  first  term  next  after  the  prisoner  is  charged  in  execution. (?)  But  if  a 
defendant  be  taken  in  vacation,  on  a  writ  returnable  the  following  term, 
the  petition  may  be  exhibited  before  the  end  of  the  next  term  after  the 
return  of  the  writ  :(m)  xVnd  where  a  defendant  taken  on  a  capias  ad 
satisfaciendum  escaped,  and  was  retaken  and  committed  to  the  custody  of 
the  marshal  in  a  subsequent  term,  the  court  held,  that  he  might  apply  to 
be  discharged  under  the  Lords'  act,  in  the  term  following.  («)  By  the 
statute  o3  Geo.  III.  c.  5,  §  5,  "  where  any  debtor  shall  have  neglected  to 
take  the  benefit  of  the  acts,  within  the  time  limited,  and  shall  make  it 
appear  to  the  court  out  of  which  the  execution  issued,  that  such  neglect 
arose  from  ignorance  or  mistake,  such  debtor  shall  then  be  entitled  to  take 
the  benefit  of  the  acts,  as  if  he  had  taken  the  same  within  the  time  so 
limited  as  aforesaid."  Upon  which  statute  it  has  been  holden,  that  a  pri- 
soner is  entitled  to  the  benefit  of  the  acts,  who  has  been  prevented  from 
applying  for  it  in  due  time,  by  the  misconduct  of  his  agent  ;(o) 
or  by  his  ignorance  *of  the  creditor's  place  of  abode,  till  re-  [  *o77  ] 
cently  before  his  application. (a)  But  where  an  insolvent  debtor, 
who  had  neglected  to  apply  for  his  discharge  under  the  Lords'  act,  in  the 
next  term  after  he  was  charged  in  execution,  afterwards  applied,  but  was 
prevented  by  poverty  from  proceeding  until  a  subsequent  term,  the  court 
held,  that  he  was  not  entitled  to  his  discharge ;  for  the  33  Geo.  III.  c.  5, 
§  5,  only  excuses  delays  occasioned  by  ignorance  or  mistake. (?»)  So,  where 
an  insolvent  had  delayed  his  petition  beyond  the  time  limited,  in  expecta- 
tion of  being  discharged  by  a  commission  of  bankrupt,  the  court  held,  that 
ho  was  not  entitled  to  relief  on  the  above  statute. (c) 

AVhen  a  prisoner  intends  to  take  the  benefit  of  the  Lord's  act,  he  must 
give  to  or  leave  for  every  creditor  at  whose  suit  he  is  in  execution,  or  his 
executors  or  administrators,  at  his  or  their  usual  place  of  abode,  or,  in  case 
they  cannot  be  met  with,  to  or  for  his  or  their  attorney  or  agent  last  em- 
ployed in  the  action,  a  notice  in  writing,(t^)  signed  with  his  proper  name  or 
mark,  importing  that  he  intends  to  petition  the  court,  and  setting  forth  a 
true  copy  of  the  account  or  schcdulc{e)  he  intends  to  deliver  in  ;  which 
notice  must  be  given  fourteen  days  at  least  before  the  petition  is  presen- 
ted:(/)  and  though  the  court  in  one  case  held,  in  favour  of  liberty,  that 

(h)  1  Bos.  &  Pul.  423.  (j)  2  Smith  R.  24,  5  ;  and  see  2  Chit.  Rep.  354. 

(k)  52  Geo.  III.  c.  34,  g  2.  (/)  Barnes,  378. 

(to)  6  Taunt.  403.     J  .M.irsh.  200,  S.  C.  (n)  4  Durnf.  &  East,3G7.  (o)  Id.  231. 

{a)  13  East,  I'JO;  and  see  2  Chit.  Rep.  226.       "  (6)  1  Chit.  Rep.  220. 

(c)  1  Dowl.  k  Uyl.  :<id.  (./)  Append.  Ch.ap.  XV.  I  59  ;  and  see  2  New  Rep.  C.  P.  67. 

(e)  Append.  Chap.  XV.  |  GO.  {/)  32  Geo.  II.  c.  28,  g  13. 

Vol.  I —24 


3yy  OF  THE  KELIEF  OF  PRISONERS, 

under  circumstances,  the  day  of  giving  the  notice  might  be  reclconed  as 
one  ;( (/)  yet  in  a  subsequent  case  it  was  holden,  that  there  must  be  four 
teen  clear  days,  exclusive  both  of  the  day  of  service  and  that  of  presenting 
the  petition. (/i)  And  notice  of  a  prisoner's  intention  to  apply  to  a  wrong 
court,  is  not  cured  by  the  plaintiff's  opposing  his  discharge.(z)  But  the 
notice  is  sufficient,  tliough  it  do  not  specify  the  christian  and  surnames  of 
the  parties  -.{k)  And  leaving  it  with  the  agent  of  the  plaintiff's  attorney, 
and  with  the  shopman  at  the  plaintiff's  warehouse  in  town,  when  he  resided 
in  the  country,  was  deemed  sufficient,  the  agent  having  appeared  accord- 
ing to  the  notice,  and  opposed  the  discharge. (Z)  An  affidavit  is  annexed 
to  the  notice  and  schedule,  made  by  some  person  who  saw  the  defendant 
sign  them  :{rn)  and  an  affidavit  of  due  service  of  the  notice  and  schedule 
is  also  to  be  made,  on  unstamped  paper,  and  sworn  before  a  judge  in 
town,  or  commissioner  in  the  country. (h)  Where  the  plaintiff  had  not 
been  served  "\nth  any  notice,  a  prisoner  discharged  under  the  act  was 
allowed  to  be  retaken  in  execution,  although  more  than  a  year  had  elapsed 
since  the  time  of  his  being  discharged. (o) 

After  the  expiration  of  the  time  specified  in  the  notice,  the  petition^i^) 
is  to  be  exhibited,  with  a  certificate  annexed,  or  copy  of  causes 
[  *378  ]  in  which  the  *defendant  stands  charged,  obtained  from  the 
gaoler,(a)  or  from  the  clerk  of  the  papers,  if  the  defendant  be 
in  custody  of  the  marshal  of  the  King's  Bench,  or  warden  of  the  Fleet 
prison.  If  he  be  in  any  other  custody,  there  must  be  an  affidavit  of  having 
seen  the  gaoler  sign  the  certificate  {(h)  which  affidavit  must  be  sworn  be- 
fore a  judge  in  town,  or  commissioner  in  the  country:  The  petition,  cer- 
tificate, and  affidavit  of  service  of  the  notice,  being  left  with  the  clerk  of 
the  rules  in  the  King's  Bench,  or  one  of  the  secondaries  in  the  Common 
Pleas,  he  will  draw  up  a  rule  for  bringing  the  prisoner  into  court,  and 
summoning  the  creditors  to  appear,  personally  or  by  attorney,  at  some 
certain  day  to  be  therein  specified :((?)  a  copy  of  which  rule  should  be 
served  on  each  creditor,  and  also  on  the  gaoler,  and  an  affidavit  made  of 
such  service  '.{d)  or  if  the  creditor  abscond,  so  that  he  cannot  be  person- 
ally served  with  a  copy  of  the  rule,  the  court  will  order  that  service  upon 
his  attorney  shall  be  deemed  good  service. (ge) 

In  the  King's  Bench,  it  is  a  rule,  that  "insolvent  debtors  petitioning 
under  the  Lords'  act,  and  subsequent  acts  for  their  further  relief,  shall  be 
brought  into  this  court,  during  term  time,  on  Mondays  and  Thursdays, 
and  upon  no  other  days  '.{ff)  And  an  insolvent  who  does  not  appear  in 
pursuance  of  the  rule  he  has  obtained  for  coming  up  on  a  particular  day, 
to  take  the  benefit  of  the  act,  cannot  come  up  on  another  day,  without  a 
fresh  rule  for  that  purpose ;  and  therefore  a  motion  to  discharge  his  rule 
is  unnecessary.(^(/)  But,  notwithstanding  the  above  rule,  the  court  will 
permit  insolvents  to  be  brought  into  court  on  the  last  day  of  term,  when 
the  notices  expire  too  late  for  the  last  appointed  day.(/Ji)     And,  by  the 

{g)  4  Barn.  2525.  (A)  4  Barn.  &  Aid.  522. 

(i)  1  Taunt.  64.  {k)  1  Chit.  Rep.  561,  in  notis. 

[I)  Id.  560 ;  and  see  4  Bing.  230.  {m)  Append.  Chap.  XV.  I  61. 

(n)  Id.  §  62.                     (o)  1  Chit.  Rep.  T40.  [p)  Append.  Chap.  XV.  ^  63. 

(a)  Append.  Chap.  XV.  I  64,  5.  {b)  Id.  ^  66. 

(c)  32  Geo.  III.  c.  28  §  13.     Append.  Chap.  XV.  §  67,  8. 

\d)  Append.  Chap.  XV.  §  70.  (ee)  Barnes,  384. 

(/)  R.  H.  37  Geo.  III.  K.  B.  {gg)  1  Chit.  Rep.  214. 

(M)  Short's  Rules  and  Orders,  66,  n. 


ox  LORDS'  ACT.  378 

statute  1  Geo.  IV.  c.  55,  §  3,  "  all  persons  wlio  are  directecl  to  be  brought 
before  the  court  of  King's  Bench,  by  the  32  Geo.  II.  c.  28,  or  any  other 
law  for  the  relief  of  insolvent  debtors,  may  be  brought  before  some  single 
judge  of  the  same  court,  sitting  under  the  authority  of  the  57  Geo.  III. 
c.  11,  and  all  orders  made  by,  and  all  proceedings  had  before,  such  single 
judge,  shall  be  as  good,  valid  and  cfl'ectual,  to  all  intents  and  purposes,  as 
if  such  orders  had  been  made  by,  and  such  proceedings  had  before,  the 
said  court  of  King's  Bench."  In  the  Common  I'leas,  by  a  late  rule, 
"insolvent  debtors  are  to  be  brought  into  court  on  the  following  days, 
that  is  to  say,  inHilary  and  Michaelmas  terms,  on  the  days  appointed 
for  the  London  sittings  at  Nisi  Frius,  and  on  Saturdays  ;  and  in  Easter 
term,  on  the  days  appointed  for  the  London  sittings  at  Nisi  Prius  on 
Tuesdays^  and  on  the  last  Saturday  in  the  term;  and  in  Trinity  term, 
on  the  days  appointtul  for  the  London  sittings,  and  on  Tuesdays  ;  and 
on  no  other  days."(/)  In  the  latter  court,  a  rule  cannot  be  had  for  the 
next  day,  with  only  one  day's  notice,  to  discharge  an  insolvent 
debtor,  though  it  be  prayed  for  on  the  last  day  *but  one  of  the  [  *370  ] 
term.((/)  In  the  Exchequer  it  is  a  rule,  that  applications  for  the 
discharge  of  insolvent  debtors  can  only  be  made  at  the  rising  of  the  court, 
when  the  other  business  of  the  day  is  over.(6) 

When  the  prisoner  is  charged  in  execution  above  twenty  miles  from 
Westminster  hall,  or  the  court  out  of  which  the  execution  issued,  the  rule 
requires  him  to  be  brought  to  the  next  assizes,{c)  or  (by  statute  52  Geo. 
III.  c.  34,  §  1,)  before  the  justices  assembled  at  any  general  or  quarter 
sessions  of  the  peace,  to  be  hoklcn  within  the  distance  of  twenty  miles  of 
the  gaol  in  which  the  debtor  is  confined,  and  that  the  creditors  be  sum- 
moned to  appear  there ;  and  a  copy  of  such  rule  is  to  be  served  on  every 
creditor,  his  executors  or  administrators,  or  left  at  his  or  their  dwelling 
house  or  usual  place  of  abode,  or  with  his  or  their  attorney,  fourteen  days 
at  least  before  the  holding  of  such  assizes. (rf) 

On  bringing  up  the  prisoner,  the  court  or  judge  of  assize,  or  the  justices 
at  sessions,  are,  in  a  summary  way,  to  examine  into  the  matter  of  the 
petition;  and  after  being  sworn  to  the  truth  of  his  schedule,  if  no  oppo- 
sition be  made,  the  court  or  judge,  &c.,  will  make  a  rule  or  order(e)  for 
discharging  him,  upon  executing  an  assignment  and  conveyance  of  his  estate 
and  effects,  to  and  for  the  benefit  of  the  creditor  or  creditors  (if  more  than 
one,)  who  shall  have  charged  him  in  execution  ;  which  is  done  by  a  short 
indorsement  on  the  back  of  the  petition. (/)  But  if  the  persons,  at  whose 
suit  the  prisoner  is  in  execution,  are  not  satisfied  with  the  truth  of  his  oath, 
and  either  personally  or  by  attorney  desire  further  time,  the  court  may  re- 
mand him  ;  and  direct  the  parties  to  appear  on  somo  other  day,  to  be  appoint- 
ed by  the  court,  within  the  first  week  of  tlic  next  term  at  farthest,(/)  or 
sooner  if  the  court  shall  think  fit:(//)  And  where,  on  a  prisoner's  being 
brought  up  to  be  discharged  under  the  Lords'  act,  it  appeared  that  a  com- 
mission of  bankrupt  had  been  issued  against  him  since  his  arrest  and  impri- 
sonment, and  that  he  had  not  passed  his  final  examination,  the  court  ordered 
him  to  be  remanded,  until  such  examination  had  taken  place  :    On  a  sub- 

(i)  R.  M.  47  Geo.  III.  C.  P. ;  and  see  R.  M.  46  Geo.  III.  C.  P.  2  New  Rep.  C.  P.  9G. 

(a)  4  Taunt.  588.  (t)  5  Price,  648. 

(c)  Append.  Chap.  XV.  g  69.  (d)  32  Geo.  II.  c.  28,  ?  15. 

(e)  Append.  Cliap.  XV.  ^  71.  (/)  32  Geo.  II.  c.  28,  g  13. 
Iff)  3  Bur.  1393. 


379  OF  THE  RELIEF  OF  TRISONERS, 

sequent  day,  however,  it  appearing  that  he  had  passed  it  to  the  satisfaction 
of  the  commissioners,  he  was  ordered  to  be  discharged,  on  inserting  an 
assignment  in  his  schedule  to  the  plaintiff,  of  all  his  estate,  title  and 
interest  in  the  property  therein  mentioned,  subject  to  the  commission,  and 
the  payment  or  satisfaction  of  his  debts  under  it. (A)  And  where  a  pri- 
soner came  up  to  be  discharged  under  the  Lords'  act,  it  was  holden  to  be 
no  ground  for  opposing  him,  that  he  had  forged  an  acceptance  to  a  bill 
of  exchange,  on  which  the  plaintiff  had  obtained  judgment,  and  taken 
him  in  execution  as  the  drawer.(z') 

On  the  prisoner's  being  brought  up,  the  creditors  may  file  interroga- 
tories for  his  examination,  before  he  is  admitted  to  take  the  benefit  of  the 

act.(^)  In  such  case,  it  is  a  rule  in  the  King's  Bench,  that  "  the 
[  *380  ]   creditor  do  file  *his  interrogatories  with  the  clerk  of  the  rules, 

and  that  the  clerk  of  the  rules  do  thereupon  draw  up  a  rule  for 
the  debtor's  examination  before  the  master,  to  whom  he  shall  also  deliver 
the  original  interrogatories ;  and  that  the  debtor  having  been  previously 
sworn  in  open  court  for  the  purpose,  the  master  shall  proceed  to  take 
down  in  writing  the  examination  of  the  debtor,  in  answer  to  the  said 
interrogatories  ;  and  the  same  being  signed  by  the  debtor,  shall  be  after- 
wards filed  by  the  master,  with  the  clerk  of  the  rules  ;  and  the  said  inter- 
rogatories and  examination  shall  be  produced  by  the  clerk  of  the  rules 
and  read,  when  the  debtor  shall,  on  a  subsequent  day,  be  brought  up  by 
rule  for  that  purpose. "(a)  In  the  Common  Pleas,  the  court  will  order 
interrogatories  for  the  examination  of  a  defendant  in  custody,  by  one  of 
the  secondaries ;  which  interrogatories  must  be  filed  with  him. (5) 

When  a  prisoner  has  been  brought  into  court,  to  be  discharged  under  the 
Lords'  act,  and  upon  his  examination  the  court  have  refused  to  discharge 
him,  they  will  not  afterwards  discharge  him  on  that  act,  though  he  make 
an  affidavit  of  circumstances,  in  answer  to  the  cause  shown  on  his  exami- 
nation against  his  discharge,  and  that  those  circumstances  were  not  then 
disclosed,  owing  to  a  mistake.(c)  And  if  a  prisoner,  brought  up  to  be 
discharged  under  the  above  act,  deliver  in  a  false  schedule,  and  be 
remanded,  the  court  of  Common  Pleas  will  not,  at  the  instance  of  a  credi- 
tor, even  with  the  prisoner's  consent,  order  him  to  be  brought  up  a  second 
time,  for  the  purpose  of  amending  his  schedule,  and  assigning  over  that 
property  which  he  had  before  concealed. (f7)  But  that  court  will  not  regu- 
late their  proceedings,  as  to  the  discharge  of  an  insolvent,  by  what  has 
passed  in  the  insolvent  debtors'  court ;  therefore  it  is  no  ground  for 
opposing  his  discharge,  that  he  has  been  remanded  in  that  court  for 
fraud,  (g) 

All  objections  to  the  insufficiency  of  the  schedule,  in  point  of /orw,  must 
be  made  the  first  time  the  prisoner  is  brought  up.(/)  And  if,  on  the 
second  day,  the  creditor  shall  make  default,  or  shall  appear  and  be  unable 
to  discover  any  estate  or  effects  omitted  in  the  account,  the  court  shall 
immediately  order  the  prisoner  to  be  discharged,  upon  his  executing  an 
assignment  and  conveyance  of  his  estate  and  effects ;  unless  the  creditor 

(A)  8  Moore,  423. 

{i)  9  Moore,  592.  {h)  33  Geo.  III.  c.  5,  §  5. 

(a)  R.  E.  36  Geo.  III.  K.  B.  {h)  3  Moore,  317. 

(c)  1  H.  Blac.  101.  {d)  1  Bos.  &  Pul.  143. 

(c)  6  Taunt.  493.     2  Marsh.  200,  S.  C. ;  and  see  6  Moore,  573. 

{/)  32  Geo.  c.  28,  §  13.     Barnes,  372. 


ON  LORDS'  ACT.  380 

insist  upon  his  being  dctaincil  in  prison,  and  sliall  agree  by  writing,  signed 
with  his  name  or  mark,  (or,  if  ho  be  out  of  EtujJaml,  under  the  hand  of 
his  attorney,)  to  pay  and  allow  the  prisoner  weekly,  a  sum  not  Exceeding 
3«.  Qd.  (or,  if  more  creditors  than  one  insist  on  his  detention,  not  exceeding 
28.  a  week  each,)(^)  to  be  paid  on  Monday  in  every  week,  so  long  as  the 
prisoner  shall  continue  in  execution  ;  and  in  every  such  case,  the  prisoner 
shall  be  remanded. (//)  And  the  court  have  no  power  to  moderate  the  sum 
to  be  paid  to  a  prisoner,  on  his  being  remanded;  but  a  note  must 
be  signed  for  the  *fiill  sum  directed  by  the  act.(a)  But  if  [  *3.^1  ] 
failure  be  made  in  payment  of  the  said  weekly  sums,  the 
prisoner,  upon  application  to  the  court  in  term  time,  or  in  vacation  to  a 
judge,  may,  by  order  of  the  court  or  judge,  be  discharged  out  of  custody, 
on  executing  an  assignment  and  conveyance  of  his  estate  and  effects. (/<) 

The  prisoner  may  be  compelled  to  include  in  his  schedule,  every  thing 
that  he  can  sell  for  his  own  benefit ;((?)  and  the  place  of  a  life-guardsman 
being  constantly  sold,  the  court  will  compel  a  prisoner  Avho  holds  such  a 
place  to  sell  it,  and  insert  the  value  in  his  schedule,  before  they  permit  him 
to  take  the  benefit  of  the  act.(t?)  But  the  full  or  half  pay  of  an  officer  in 
the  army  is  not  the  subject  of  sale ;  and  therefore  a  prisoner  cannot  be 
compelled  to  include  it  in  his  schedule. (t?) 

If  the  prisoner  be  detained  in  custody,  the  note  or  security  for  payment 
of  his  allowance,(/)  must  be  signed  by  the  plaintiff,  if  in  England^  or 
otherwise  by  his  attorney  ;  it  not  being  sufficient  for  the  attorney  to 
sign  the  note,  if  his  client  can  be  met  with.(^(/)  And  if  the  note  be  not 
signed  by  the  plaintiff  in  open  court,  it  is  the  practice  to  require  an 
affidavit  with  the  note,  showing  that  it  was  duly  signed  ',[h]i)  which  affidavit 
must  be  properly  entitled  :  and  where  a  note  to  pay  a  prisoner  his  six- 
pences was  written  upon  the  same  paper  with  an  affidavit  to  verify  the 
plaintiff's  handwriting  thereto,  it  was  holden,  that  the  affidavit  not  being 
duly  entitled  in  the  cause,  though  the  note  was  so,  could  not  be  aided  by 
reference ;  and  therefore,  as  it  could  not  be  read,  the  prisoner  was  dis- 
charged.(z)  Where  there  are  several  plaintiffs,  the  note  must  be  signed 
by  all  of  them,(A-)  or,  if  they  are  partners,  by  one  on  behalf  of  himself 
and  the  others  ;(Z)  a  note  signed  by  one  of  several  lessors  of  the  plaintiff 
in  ejectment ^{in)  or  by  one  of  several  executors,(n)  without  mentioning  the 
others,  not  being  deemed  sufficient.  But  where,  by  a  deed  of  dissolution 
of  partnership,  a  power  was  reserved  to  the  remaining  partners,  to  use  the 
name  of  the  retiring  partner,  in  the  prosecution  of  all  suits  brought  for  the 
recovery  of  partnership  property,  it  was  holden  that  in  an  action,  in  which 
judgment  had  been  obtained  by  all  the  partners  before  the  dissolution,  the 
remaining  partners  had  authority,  under  that  power,  to  give  to  the  defend- 
ant a  note  for  payment  of  the  sixpences,  under  the  Lords'  act,  on  behalf 

{g)  37  Geo.  III.  c.  85,  ?  3,  4  ;  but  sec  Rarnes,  377,  389,  90. 

(A)  32  Geo.  II.  c.   23,  \  13.     And  for  the  form  of  a  rule  of  court,   on  defendant's  being 
remanded  in  the  Exchequer,  see  Append.  Chap.  XV.  §  7G. 
(a)  1  Bos.  <fe  Pul.  336;  but  see  Barnes  387,  397,  semb.  contra. 

(6)  32  Geo.  II.  c.  28,  g  13.  (c)  Durnf.  &  East,  681. 

(rf)  Id.  ibid.  Cidwa/ladrr  Jone.i's  case,  M.  14  Geo.  III.  K.  B. 
(c)  3  Durnf.  k  East,  681.     1  H.  Blac.  628.     3  Bos.  &  Pul.  324,  Ac. 
(/)  Append.  Chap.  XV.  g  73,  &c. 

(^7)  Imp.  K.  B.  10  Ed.  643,  (a) ;  but  see  Barnes,  371,  382,  399.     1  Bos.  &  Pul.  337. 
(hh)  Edwards  v.  Carter,  M.  36  Geo.  III.  K.  B.  (i)  2  Smith  R.  393. 

(k)  7  Durnf.  &  East,  156.     8  Durnf.  k  East,  325.  (/)  8  Durnf.  &  East,  25. 

(»j)  7  Durnf.  &  East,  156.  (n)  8  Durnf.  &  East,  325. 


gg-j^  OF  THE  RELIEF  OF  CREDITORS, 

of  themselves  and  the  retiring  partner.(o)  If  a  plaintiff  hold  the  defendant 
in  execution  in  several  actions,  he  need  not  give  more  than  one  note  for  3s. 
Gd.  a  week.(;j)  And,  in  an  action  at  the  suit  of  a  corporation,  if 
[  *382  ]  the  note  be  sealed  "uith  the  ^corporation  seal,  it  is  deemed  a  suflB- 
cient  compliance  with  the  act  :(a)  and  the  note  is  valid,  though 
it  do  not  state  the  style  of  the  court  in  which  the  action  was  brought. (6) 
The  payment  is  to  be  made,  by  the  act,  every  Monday  ;  and  the  note  must 
be  drawn  up  accordingly. (c)  And,  in  the  Common  Pleas,  it  seems  that 
such  note  ought  to  contain  an  express  promise  to  pay  the  allowance  on  a 
3Ionday,  although  it  be  dated  on  that  day  of  the  week.((i)  It  was  deter- 
mined in  one  case,(e)  that  such  a  note  ought  to  be  stamped :  but  the  judges, 
upon  a  conference,  afterwards  held  a  stamp  to  be  unnecessary.(/) 

The  act  of  parliament  requires  payment  to  the  debtor  ;  but  the  courts,  in 
construing  the  act,  have  considered  payment  to  the  turnkey  as  payment  to 
the  debtor  :  and  payment  to  the  person  who  opened  the  door  of  the  prison, 
has  been  considered,  by  the  court  of  Common  Pleas,  as  payment  to  the 
turnkey. (^)  If  the  payment  be  not  made  in  time,(7i)  or  any  part  of  the 
money  be  paid  in  a  spurious  or  foreign  coin,(z)  the  prisoner  has  a  right  to 
his  discharge:  And  where  the  money  was  not  paid  before  ten  o'clock  at 
night  of  the  day  on  which  it  became  due,  it  was  holden  that  the  defendant's 
right  to  his  discharge  was  not  waived,  by  the  turnkey  on  the  felon's  side 
accepting  it  after  that  time.(/c)  But  the  defendant  cannot,  it  seems,  be  dis- 
charged for  non-payment  of  the  money,  where  he  removes  himself  to  the 
prison  of  another  court. (Z)  The  mode  of  obtaining  a  prisoner's  discharge 
for  non-payment  of  the  allowance,  if  by  application  to  the  court  in  term- 
time,  or  to  a  judge  in  vacation :  and  where  a  note  is  given  at  the  assizes, 
the  court  will  discharge  him  for  non-payment  of  the  allowance,  upon  a 
record  of  the  proceedings  being  sent  to  them,  signed  by  the  judge  of 
assize. (m)  A  judge's  order  for  a  prisoner's  discharge  under  the  Lord's 
act,  made  out  of  term,  has  been  held  to  be  final  :{n)  But,  in  the  Common 
Pleas,  this  order  cannot  be  made  by  a  judge  in  term,  though  summonses 
were  taken  out  in  vacation,  and  the  order  only  delayed  till  the  beginning 
of  term,  by  an  irregularity  in  the  affidavits. (o) 

It  sometimes  happens,  that  persons  who  are  prisoners  in  execution  in 
gaol,  for  debt  or  damages,  will  rather  spend  their  substance  in  prison,  than 
discover  and  deliver  up  the  same,  towards  satisfying  their  creditors  their 
just  debts,  or  so  much  thereof  as  such  substance  will  extend  to  pay :  To 
remedy  which,  there  are  compulsive  clauses  in  the  Lord's  act,(^jip)  by  which 
it  is  enacted,  that  "if  any  prisoner  who  shall  be  committed  or  charged  in 
execution,  in  any  prison  or  gaol,  for  any  debt  or  damages  not  exceeding  one 
hundred  pounds,  besides  costs,"  (since  extended  to  200L  by  the  26 
[  *383  ]  *Geo.  III.  c.  44,  §  2,  and  to  300/.  by  the  33  Geo.  IIL  c.  5,  §  3, 
which  is  made  perpetual  by  the  39  Geo.  III.  c.  50,)  "  shall  not 

(o)  5  Barn.  &  Aid.  267.  {p)  Joiies  v.  Cox,  M.  36  Geo.  III.  K.  B. 

(a)  1  New  Rep.  C.  P.  306.  {b)  2  Smith,  R.  642.  2  Chit.  Rep.  226. 

(c)  Blakemore  v.  Ronea,  M.  36  Geo.  III.  K.  B.  3    Bos.  &  Pul.  184,  C.  P. 

(d)  Id.  ibid.,  and  see  4  Bing.  230,  (a).  (e)  7  Dnrnf.  &  East,  530. 
(/)  Id.  670.  1  Bos.  &  Pul.  271.                        {g)  1  New  Rep.  C.  P.  111. 

{h)  Say.  Rep.  183.  Doug.  60;  and  see  7  Durnf.  &  East,  157.  (i)  7  Taunt.  7. 

\k)  5  Durnf.  &  East,  36  ;  and  see  7  Durnf.  &  East,  156.  7  Taunt.  7. 

{I)  Barnes,  368.  [m)  Id.  382. 

(«)  Doug.  68.    Webster  t.  WilJcinson,  H.  26  Geo.  III.  K.  B. 

(o)  1  Bos.  &  Pul.  92.  [pp)  32  Geo.  II.  c.  28,  §  16,  17. 


ON  LORDS'  ACT.  3S3 

■witllin  three  months  next  after  every  such  prisoner  shall  be  committed  or 
charged  in  execution,  make  satisfaction  to  his  or  her  creditor  or  creditors, 
who  shall  charge  any  such  prisoner  in  execution,  for  such  debt,  damages 
and  costs,  then  such  creditor  or  creditors  may  re(|uire  every  such  prisoner 
(on  giving  twenty  days'  notice{a)  in  writing  to  him  or  her,  of  such  credi- 
tor's design,)  to  give  in  to  the  court  at  law  from  which  the  writ  or  process 
issued,  on  which  any  such  prisoner  shall  be  charged  in  execution,  or  into 
the  court  in  the  prison  of  which  any  such  prisoner  shall  be  removed  by 
habeas  corpus,  or  shall  remain  or  be  charged  in  execution,  within  the  first 
seven  days  of  the  term  which  shall  next  ensue  the  expiration  of  the  said 
twenty  days,  in  respect  to  any  prisoner  charged  in  any  prison  belonging  to 
the  courts  in  Westminster  hall ;  and  at  the  second  court  which  shall  be 
held  by  any  other  court  of  record,  after  the  expiration  of  the  said  twenty 
days,  in  respect  to  any  prisoner  charged  in  any  prison  belonging  to  such 
other  court :  and  where  any  such  prisoner  shall  be  chargeil  in  execution  in 
any  county  gaol,  or  other  gaol  or  prison,  above  the  space  of  tiventjj  miles 
distant  from  Westminster  hall,  or  the  court  or  courts  out  of  Avliich  the  writ 
or  process  issued,  on  which  any  such  prisoner  is  or  shall  be  charged  in  exe- 
cution, then  to  give  in  upon  oath,  at  the  assizes  or  great  sessions,  and  on  the 
crown  side  thereof,  which  shall  be  held  for  the  county  or  place  in  the  prison 
of  which  any  such  prisoner  shall  be,  next  after  the  expiration  of  twenty  days 
from  the  time  of  giving  any  such  notice,  a  true  account  in  writing,  to  be 
signed  with  the  proper  name  or  mark  of  every  such  prisoner,  of  all  the  real 
and  personal  estate  of  such  prisoner,  and  of  all  incumbrances  affecting  the 
same,  to  the  best  of  his  or  her  knowledge  and  belief,  in  order  that  the  estate 
and  effects  of  such  prisoner  may  be  divested  out  of  him  or  her,  and  may 
by  the  court,  judge  or  judges,  justice  or  justices  aforesaid,  be  ordered  to 
be  assigned  and  conveyed,  in  manner  and  for  the  purposes  thereinafter 
declared." 

"  And  every  such  creditor  or  creditors  shall  also  give  tiventy  days  like 
notice  in  writing,  of  such  his  her  or  their  intention  to  require  any  such 
prisoner  to  be  brought  up  as  aforesaid,  to  all  and  every  other  creditor  and 
creditors  of  every  such  prisoner,  if  any,  at  whose  suit  any  such  prisoner 
shall  be  detained  or  charged  in  custody,(^;)  if  such  other  creditor  or  creditors 
can  be  met  with  ;  and  if  not,  then  to  the  attorneys  last  employed  in  the 
actions  or  suits  in  which  any  such  prisoner  shall  be  so  detained  or  charged 
in  custody,  by  any  such  other  creditor  or  creditors  :  and  shall  likewise  give 
a  like  notice  in  writing  to  the  sheriff  or  sheriffs,  gaoler  or  keeper  of  the  gaol 
or  prison  in  which  any  such  prisoner  shall  be  detained  in  custody,  of  such 
his  or  her  intention  to  have  any  such  prisoner  so  brought  up,  and  to  require 
such  sheriff,  &c.  to  bring  up  every  such  prisoner  accordingly;  and  every 
such  notice  which  shall  be  so  given  to  any  such  sheriff,  &c.  shall 
be  so  given  twenty  days  at  least  *before  the  time  appointed  for  [  *884  ] 
any  such  prisoner  to  be  so  brought  up;  and  thereupon  every  such 
sheriff,  &c.  shall,  at  the  costs  of  such  creditor  or  creditors,  cause  every  such 
prisoner  to  be  brought,  as  by  such  notice  in  writing  shall  be  required,  to 
such  court,  assizes  or  great  sessions  as  aforesaid,  together  with  a  copy  of 
causes  of  his  or  her  detainer  there." 

"  And  that  every  prisoner  who,  in  pursuance  of  this  act,  shall  be  brought 
up  to  any  such  court,  assizes  or  great  sessions  as  aforesaid,  shall,  on  proof 

(a)  Append.  Cliap.XV.  g  77.  (i)  Id.  I  78. 


gg^  OF  THE  RELIEF  OF  CREDITORS, 

beino-  there  first  made  of  such  notices  as  aforesaid  having  been  given,  deliver 
in  there  in  open  court,  upon  oath,  within  the  time  therein  before  for  that 
purpose  prescribed,  a  full  true  and  just  account,  disclosure  and  discovery  in 
writing,  of  the  whole  of  his  or  her  real  and  personal  estate,  and  of  all  books, 
papers,  writings  and  securities,  relating  thereto,  and  of  all  incumbrances 
then  affecting  the  same,  and  the  respective  times  when  made,  to  the  best 
of  his  or  her  knowledge  and  belief,  (other  than  and  except  the  necessary 
wearing  apparel  and  bedding  of  such  prisoner,  and  his  or  her  family,  and 
the  necessary  tools  or  instruments  of  his  or  her  respective  trade  or  call- 
ing, not  exceeding  the  value  of  ten  pounds  in  the  whole) ;  which  account 
shall  be  subscribed  with  the  proper  name  or  mark  of  the  prisoner,  who 
shall  so  deliver  in  the  same." 

"And,  on  the  delivering  in  of  any  such  account,  the  estate  and  effects 
of  every  such  prisoner  shall  be  by  him  or  her  assigned  and  conveyed,  by  a 
short  indorsement  on  the  back  of  every  such  account,  to  such  person  or 
persons  as  the  court,  judge  or  judges,  justice  or  justices,  in  which  or  to 
whom  any  such  account  shall  be  so  given  in,  shall  order  or  direct,  in  trust, 
and  for  the  benefit  of  the  creditor  or  creditors  who  shall  have  required  any 
such  prisoner  to  be  brought  up  as  aforesaid,  and  of  such  other  creditor  or 
creditors  (if  any,)  of  every  such  prisoner,  at  whose  suit  any  such  prisoner 
shall  be  charged  in  custody  or  execution,  and  who  shall,  by  any  memoran- 
dum or  writing,  to  be  signed  by  such  creditor  or  creditors,  before  any  such 
conveyance  or  assignment  shall  be  made,  consent  to  any  such  prisoner's 
being  discharged  out  of  gaol  or  prison,  at  his  her  or  their  suit,  and  agree  to 
accept  a  proportionable  dividend  of  such  prisoner's  estate  and  effects,  with 
the  creditor  or  creditors  who  shall  have  required  any  such  prisoner  to  be 
brought  up ;  and  if  there  shall  be  no  other  creditor  or  creditors,  or  there 
being  any  such,  if  he,  she  or  they  shall  not  agree  in  writing  to  discharge 
such  prisoner,  and  accept  such  proportionable  dividend  as  aforesaid,  then 
in  trust  for  the  creditor  or  creditors  only,  who  shall  require  any  such  pri- 
soner to  be  brought  up  for  the  purpose  aforesaid :  And,  by  such  assign- 
ment and  conveyance  as  aforesaid,  all  the  prisoner's  estate  and  effects 
shall  be  vested  in  the  creditor  or  creditors,  to  whom  the  same  shall  be  as- 
signed and  conveyed,  in  trust  as  aforesaid ;  and  if  any  overplus  shall  re- 
main of  any  such  prisoner's  estate,  after  payment  of  the  debt,  or  damages 
and  costs,  which  shall  be  due  to  any  creditor  or  creditors,  at  whose  suit 
any  such  prisoner  shall,  in  pursuance  of  this  act,  be  discharged  out  of  gaol 
or  prison,  and  all  reasonable  charges  expended  in  or  by  means 
[  *385  ]  of  getting  in  such  estate  or  ^effects,  the  same  shall  be  paid  to 
such  prisoner,  his  or  her  exeecutors  administrators  or  assigns." 

And,  upon  every  such  discovery,  assignment  and  conveyance  being  made 
and  executed,  to  the  satisfaction  of  the  court,  judge  or  judges  of  assize, 
justice  or  justices  of  great  session,  before  whom  the  same  shall  be  made, 
every  such  prisoner  shall,  by  such  court,  &c.,  be  discharged  and  set  at 
liberty,  in  the  actions  and  charges,  at  the  suit  of  the  creditor  or  creditors 
who  shall  require  him  or  her  to  be  so  brought  up,  and  also,  in  the  actions 
and  charges  of  every  other  creditor  who  shall  sign  such  consent  as  afore- 
said, for  his  or  her  discharge  ;  with  the  same  benefit  of  making  use  of  such 
discharge,  as  is  therein  before  provided  for  prisoners  seeking,  and  who 
shall  obtain  their  discharge,  under  the  provisions  contained  in  the  former 
part  of  this  act ;  and  no  stamp  shall  be  necessary  on  any  such  assignment 
and  conveyance,  or  any  rule  or  order  which  shall  be  made  for  any  such 


ON  LORDS'  ACT.  885 

discharge.  But,  notwithstanding  any  discharge  obtained  by  virtue  of  this 
act,  for  the  person  of  any  prisoner,  the  judgment  obtained  against  every 
such  prisoner  shall  continue  and  remain  in  force,  and  execution  may  at  any 
time  be  taken  out  thereon,  against  the  lands,  tenements,  rents  or  heredi- 
taments, goods  or  chattels  of  any  such  prisoner,  other  than  and  except 
the  necessary  wearing  apparel  and  bedding  for  himself  and  family,  and  the 
necessary  tools  for  the  use  of  his  trade  or  occupation,  not  exceeding  101. 
in  value  in  the  whole,(a)  as  if  he  had  never  been  before  arrested,  taken  in 
execution,  and  released  out  of  prison. (i) 

These  clauses  have  been  construed  to  extend  to  a  prisoner  in  execution 
on  an  attachment,  for  non-payment  of  costs,  pursuant  to  an  award. (c) 
And  it  is  competent  for  any  one  creditor,  whose  debt  does  not  exceed  -lOOl. 
besides  costs,  to  compel  his  debtor  to  make  an  assignment  of  his  estate  and 
effects,  for  the  benefit  of  all  his  creditors,  although  the  aggregate  of  the 
debts,  for  which  he  is  in  execution,  exceed  that  sum.((:?)  But  a  prisoner 
in  execution,  at  the  suit  of  a  creditor  whose  debt  exceeds  '300/,,  is  not 
liable  to  be  brought  up,  under  the  compulsory  clauses  of  the  Lords'  act,  to 
make  an  assignment  of  his  estate  and  effects. (r)  And  if  a  prisoner  be 
brought  up  by  rule  of  court,  under  the  above  clauses,  on  a  day  after  the 
first  8cve7i  days  of  the  terra  next  ensuing  the  expiration  of  the  twenty  days' 
notice  required  by  the  act,  he  cannot  be  called  upon  to  give  in  upon  oath 
an  account  of  his  estate. (/)  The  notices  required  by  the  above  act  need 
not  be  personally  served  on  the  detaining  creditors :  And  Avhere  the  ser- 
vice was  sworn  to  be  on  the  attorney  of  a  creditor  residing  abroad,  it  was 
deemed  sufficient,  although  the  affidavit  did  not  state  that  he  was  the  at- 
torney last  employed  in  the  suit  under  which  the  insolvent  was 
detained ;  the  objection  being  *taken  by  the  insolvent,  and  not  [  *386  ] 
on  the  part  of  the  creditor.(aa)  The  act  gives  no  authority  to 
remand  a  prisoner,  refusing  to  give  in  an  account  of  his  property,  other- 
wise than  generally. (i5)  And  where  an  insolvent  was  brought  up  at  the 
assizes,  under  the  compulsory  clauses  of  the  Lords'  act,(cc)  to  deliver  in 
a  schedule  of  his  estate  and  effects,  and  not  being  then  prepared  to  do  so, 
was  remanded  generally,  and  more  than  sixty  days  would  have  elapsed 
before  the  next  assizes ;  the  court,  at  the  instance  of  the  prisoner,  made 
an  order  upon  the  gaoler,  to  bring  him  up  at  the  subsequent  assizes  for 
examination,  notwithstanding  the  lapse  of  sixty  days.((W)  In  another 
case,  where  a  prisoner,  on  being  brought  up,  delivered  in  a  schedule,  in 
which  it  was  stated  that  he  was  entitled  to  an  annuity  after  the  death  of  his 
mother,  secured  on  a  freehold  estate,  which  he  had  sold  to  his  brother  for 
1000/.  which  sum  he  had  spent  extravagantly  and  improvidently,  the  court 
of  Common  Pleas  allowed  him  to  be  discharged,  on  his  consenting  to  amend 
his  schedule,  by  inserting  that  he  was  ready  to  assign  his  interest  in  the 
estate  to  the  plaintiff,  if  he  had  any,  and  that  he  would  execute  an  assign- 
ment accordingly ;  although  he  had  been  before  remanded  by  the  insolvent 

(a)  In  the  compulsive  clause,  ?  17,  the  exception  is  general,  and  extends  to  all  wearing 
app.ircl,  &c.,  without  any  restriction  in  point  of  value. 

(6)  32  Geo.  II.  c.  28,  ^  20.  (c)  8  Taunt.  67.  1  Moore,  494,  S.  C. 

id)  5  Barn.  &  Aid.  5.37.  1  Dowl.  &  Ryl.  25,  S.  C. 

(e)  2  Dowl.  &  Rvl.  166.  (/)  M'Clel.  6.  13  Price,  186,  S.  C. 

\aa)  .5  Barn,  k  Aid.  749.  1  Dowl.  &  Ryl.  394,  S.  C. 

{bh)  M'Clel.  6.  13  Price,  186,  S.C.  (cc)  J  16,  17. 

(rfrf)  7  Dowl.  &  Ryl.  234. 


386  OF  THE  RELIEF  OF  DEBTORS, 

debtors'  court,  for  not  having  satisfactorily  accounted  for  tlie  disposition 
of  his  property.(ee) 

For  the  relief  of  debtors,  in  execution  for  small  debts,  it  is  enacted  by 
the  statute  48  Geo.  III.  c.  123,  that  "  all  persons  in  execution  upon  any 
judgment,  in  whatsoever  court  the  same  may  have  been  obtained,  and 
whether  such  court  be  or  be  not  a  court  of  record,  for  any  debt  or  damages 
not  exceeding  the  sum  of  20?.,  exclusive  of  the  costs  recovered  by  such 
judgment,  and  who  shall  have  lain  in  prison  thereupon  for  the  space  of 
twelve  successive  calendar  months  next  before  the  time  of  their  application 
to  be  discharged  as  thereinafter  mentioned,  shall  and  may,  upon  his  her 
or  their  application  for  that  purpose  in  term  time,  made  to  some  one  of 
his  majesty's  superior  courts  of  record  at  Westminster,  to  the  satisfaction 
of  such  court,  be  forthwith  discharged  out  of  custody,  as  to  such  execu- 
tion, by  the  rule  or  order  of  such  court :  Provided  always,  that  in  the 
case  of  any  such  application  being  made  to  be  discharged  out  of  execu- 
tion, upon  a  judgment  obtained  in  any  of  his  majesty's  superior  courts  of 
record  at  Westminster,  such  application  shall  be  made  to  such  one  of  those 
courts  only,  wdierein  such  judgment  shall  have  been  obtained ;  and  that, 
whether  the  person  so  in  execution  shall  then  be  actually  detained  in  the 
gaol  or  prison  of  the  same  of  the  same  court,  or  shall  then  stand  com- 
mitted on  habeas  corpus  to  the  gaol  or  prison  of  another  court." 

"  Provided  always,  that  for  and  notwithstanding  the  discharge  of  any 
debtor  or  debtors  by  virtue  of  this  act,  t\ie  judgment  whereupon  any  such 
debtor  or  debtors  was  or  were  taken  or  charged  in  execution,  shall  never- 
theless remain  and  continue  in  full  force,  to  all  intents  and  purposes,  ex- 
cept as  to  the  taking  in  execution  the  person  or  persons  of  such  debtor 
or  debtors  thereupon,  as  is  thereinafter  provided;  and  that  it 
[  *387  ]  *shall  and  may  be  lawful  for  the  creditor  or  creditors,  at  whose 
suit  such  debtor  or  debtors  had  been,  was  or  were  so  taken  or 
charged  in  execution,  to  take  out  all  such  execution  or  executions  on  every 
such  judgment,  against  the  lands,  tenements,  hereditaments,  goods  and 
chattels  of  any  debtor  or  debtors,  (other  than  and  except  the  necessary 
wearing  apparel  and  bedding  of  and  for  him  her  or  them,  and  for  his  her 
or  their  family,  and  the  necessary  tools  for  his  her  or  their  trade  or  occu- 
pation, not  exceeding  the  value  of  lOZ.  in  the  whole,)  or  to  bring  any  such 
action  or  actions  on  any  such  judgment,  against  such  debtor  or  debtors 
respectively,  or  to  bring  any  such  action,  or  use  such  remedy,  for  the 
recovery  and  satisfaction  or  his  her  or  their  demand,  against  any  other 
person  or  persons  liable  to  satisfy  the  same,  in  such  and  the  same  man- 
ner, but  in  such  and  the  same  manner  only,  as  such  creditor  or  creditors 
otherwise  could  or  might  have  done,  in  case  such  debtor  or  debtors  had 
never  been  taken  or  charged  in  execution  upon  such  judgment." 

"  Provided  also,  that  no  debtor  or  debtors  who  shall  be  duly  discharged 
in  pursuance  of  this  act,  shall  at  any  time  afterwards  be  taken  or  charged 
in  execution,  upon  any  judgment  therein  so  as  before  declared  to  continue 
and  remain  in  full  force,  nor  be  arrested  in  any  action  to  be  brought  on 
any  such  judgment;  and  that  no  proceeding  whatsoever  by  scire  facias, 
action,  or  otherwise,  shall  be  maintained  or  had  against  the  bail  in  any 
action  upon  the  judgment,  wherein  the  defendant  or  defendants  shall  have 

{ee)  7  Moore,  370. 


IN  EXECUTION  FOR  SMALL  DEBTS.  387 

been  charged  in  execution,  and  afterwards  discharged  by  virtue  of  the 
provisions  of  this  act." 

A  phiintift"  Avlio  lias  hiin  in  prison  more  than  twelve  months,  umlcr  an 
execution,  for  the  costs  of  a  nonsuit  not  amounting  to  liO/.,  is  entitled  to 
be  discharged  under  the  above  statute. {«)  And,  in  the  Exchequer,  a  pri- 
soner was  discharged  under  it,  notwithstanding  he  had  previously  been 
brought  up  under  the  compulsory  clauses  of  the  Lords'  act,  and  refused  to 
deliver  in  a  schedule  of  his  efl'ects,  and  in  consefpicnce  been  remanded  ;(^') 
and  another  prisoner  was  discharged,  although  he  was  entitled  to  an  annu- 
ity suflicient  to  satisfy  the  judgment.  2  Younge  k  J.  10.  But  the  sta- 
tute applies  only  to  cases  of  persons  in  execution  upon  judgments  in  civil 
actions  :{b)  and  therefore  it  has  been  holden,  that  one  in  custody  on  an 
attachment.,  for  non-payment  of  money  under  20Z.  found  due  by  an  award 
made  a  rule  of  court,  is  not  entitled  to  his  discharge  under  it.((')  So,  a 
defendant  in  custody  on  an  attachment,  for  non-payment  of  money 
awarded  by  the  master  to  the  prosecutor  of  an  indictment  for  an  assault, 
of  which  the  defendant  was  convicted,  is  not  entitled  to  his  discharge 
under  the  above  act,  after  having  been  imprisoned  twelve  calender  months; 
although  the  sum  awarded  for  damages  do  not  exceed  20?.  exclusive  of 
costs. ((?)  And  where  a  defendant  was  arrested  for  a  sum  under  20Z.  and 
afterwards  gave  a  warrant  of  attorney  for  the  original  debt  and  costs  of 
the  action,  which  together  exceeded  that  sum,  under  which  judgment  was 
entered  up,  and  he  was  taken  in  execution;  the  Court  of  Com- 
mon Pleas  held,  that  he  was  *not  entitled  to  his  discharge,  [  *388  ] 
under  the  above  statute ;  as  the  Avarrant  of  attorney  did  not 
appear  to  have  been  improperly  obtained  from  him,  nor  was  he  in  custody 
at  the  time  it  was  given. (fla)  On  a  motion  for  thc'discharge  of  an  insol- 
vent debtor  under  the  above  statute,  the  rule  in  the  King's  Bench,  is  abso- 
lute in  the  first  instance,  after  due  notice  of  the  application  has  been  given 
to  the  plaintiff  or  his  attorney  :(i6)  but,  in  the  Common  Pleas,  it  is  in  the 
first  instance  only  a  rule  nisi:{cc)  and  the  court,  on  showing  cause,  re- 
quired the  record  to  be  examined  by  the  officer,  to  ascertain  whether  the 
judgment  had  been  entered  up  for  a  less  sum  than  twentij  pounds,  and 
whether  the  defendant  had  lain  in  prison  tivelve  months  by  virtue  of  such 
judgment ;  the  affidavit  of  the  defendant,  as  to  these  facts,  not  being  deemed 
sufficient.  (cM) 

The  acts  of  parliament  hitherto  mentioned,  are  only  for  the  relief  of 
debtors  in  execution;  but  besides  these  acts,  other  have  been  occasionally 
passed,  for  the  relief  of  insolvent  debtors  in  general.{e)  The  cases  de- 
cided on  these  latter  acts,  may  be  classed  under  the  following  heads :  1st, 
the  cases  in  which  insolvent  debtors  are,(/)  or  are  not,(^)  entitled  to 
the  benefit  of  the  acts ;  2dly,   the  jurisdiction  of   the  justices,    at   an 

{a)  3  Miuile  &  Sd.  282.  '  {h)  M'Clel.  6.  13  Price,  186,  S.  C. 

(6)  M-Clcl.  6.   13  Price,  186,  S.  C.  (c)  10  East,  408.   2  Barn,  k  Aid.  61. 

{d)  2  Matile  &  Sel.  201  ;  and  see  8  Dowl.  &  Ryl.  b^,  accord.  {aa)  G  Moore,  287. 

{bh)  2  Barn.  &  Cre3.  804.  4  Dowl.  &  Ryl.  301,  S.  C.  And  for  the  form  of  a  notice,  of  pri- 
soner's intention  to  apply  for  his  discharge,  under  this  statute,  see  Append.  Chap.  XV.  \  80, 
and  for  the  form  of  an  affidavit,  to  obtain  the  rule  thereon,  id.  g  81. 

[cc)  7  Taunt.  37,  467.  (dd)  8  .Moore,  80. 

(c)  See  the  statute  34  Geo.  III.  c.  69, 1  37,  and  the  other  statutes  referred  to,  ante,  212,  {k). 

(/)  8  Durnf.  &  Piast,  49.  2  East,  148.'  3  Bos.  k  Pul.  394.  4  Taunt.  460,  854. 

(.-7)  6  Durnf.  &  East,  28,  399.  7  Durnf.  <fe  East,  305.  1  Bos.  &  Pul.  477.  6  East,  347.  7 
East,  91.  3  Smith,  II.  115,  S.  C.  8  East,  433.  2  Campb.  443.  1  Price,  315.  3  Barn.  &  Aid. 
407.    2  Chit.  Rep.  222,  S.  C.    4  Barn.  &  Ores.  419.    6  Dowl.  &  Ryl.  491,  S.  C. 


383  OF  TUE  RELIEF  OF 

adjourned  session  ;(7i)  3dly,  tlieir  remanding  the  insolvent,  for  obtaining 
money  or  goods  under  false  pretences :(/')  4thlj,  the  property  which  passes 
under  the  acts;(^)  5thly,  the  assignment  of  it  by  the  clerk  of  the  peace ;(/) 
Gthly,  the  evidence  in  support  of  an  ejectment  by  the  assignee,('>?«)  or  to 
prove  the  insolvent's  discharge  ;(ri)  and  lastly,  the  liability  of  future 
effects,  (o) 

At  length,  by  the  statute  53  Geo.  III.  c.  102,(|;)  (Lord  RedesdaWs  act,) 
a  court  was  established  for  the  permanent  relief  of  insolvent  debtors  in 
^M^^rtwc?,  called  ^Tlie  Court  for  relief  of  Insolvent  Debtors.'  This  statute 
was  amended  by  the  54  Geo.  III.  c.  23,  and  56  Geo.  III.  c.  102,  and  con- 
tinued by  the  59  Geo.  III.  c.  129 ;  but  having  been  suffered  to  expire,  the 
statute  1  Geo.  IV.  c.  119,  was  made,  for  the  permanent  relief  of  insolvent 
debtors  in  England,  which  was  amended  by  3  Geo.  IV.  c.  123,  and  5  Geo. 

IV.  c.  61,  and  afterwards  repealed  by  7  Geo.  IV.  c.  57,  except 
[  *389  ]    as  *to  the  matters  of  certain  petitions  therein  mentioned.     The 

insolvent  debtors'  court  has  been  holden  to  be  such  a  court,  as 
privileges  the  parties  and  their  witnesses,  in  attending  it,  from  arrest, 
eundo,  morando,  et  redeundo,  in  the  same  manner  as  when  in  attendance 
upon  any  other  court.(a)  A  lessor  whose  property  has  been  assigned  to 
a  provisional  assignee,  under  the  statute  1  Geo.  IV.  c.  119,  cannot  eject 
an  occupier  of  land  which  passed  under  the  assignment;  although  the  pro- 
visional assignee  has  never  taken  possession,  nor  has  any  permanent 
assignee  been  appointed,  or  rent  withheld  from  the  lessor,  4  Bing.  348. 
And  the  provisional  assignee  of  that  court  may  maintain  an  ejectment,  for 
the  property  of  an  insolvent,  under  the  provisions  of  the  statute  1  Geo.  IV. 
c.  119,  without  a  previous  application  to  the  court.(6)  But  an  assignment 
of  the  property  of  an  insolvent,  under  that  statute,  only  transferred  the 
property  he  was  possessed  of  at  the  time  of  presenting  the  petition  for  his 
discharge;  and  did  not  pass  any  after  acquired  property  to  his  assignee. (c) 
And  neither  the  53  Geo.  III.  c.  10'2,{d)  nor  the  1  Geo.  IV.  c.  119,(t')  dis- 
charged the  prisoner  from  all  his  debts ;  but  only  from  the  demands  of 
such  of  his  creditors  as  were  named  in  his  schedule,  and  specified  in  the 
order  of  discharge.  It  has  also  been  determined,  that  a  plea  of  discharge, 
under  the  statute  53  Geo.  III.  c.  102,  is  no  bar  to  an  action  of  trespass 
for  mesne  profits,  accruing  before  the  discharge. (/) 

The  laws  for  the  relief  of  insolvent  debtors  in  England  were  finally 
amended  and  consolidated  by  the  statute  7  Geo.  IV.  c.  57,  by  which  it  is 
enacted,  that  "it  shall  be  lawful  for  any  person  who  shall  be  in  actual  cus- 
tody, within  the  walls  of  any  prison(^)  m.  England,  upon  any  process 

(h)  6  Durnf.  &  East,  76.  8  Durnf.  &  East,  424. 

(i)  6  Durnf.  &  East,  76.  8  East,  180.  {k)  3  Bos.  &  Pul.  321. 

{I)  2  East,  257.  8  Moore,  384.   1  Bing.  354,  S.  C. 
(m)  5  Maule  &  Sel.  72.  3  Dowl.  &  Ryl.  509. 

(«)  3  Stark.  Ni.  Pri.  54.  4  Barn.  &  Cres.  335.  6  Dowl.  &  Ryl.  464,  S.  C. 
[o]  6  Durnf.  &  East,  366.     8  East,  55.     See  also  Barnes,  tit.  Prisoners,  2  Blac.  Rep.  992, 
1188,  1307,  1309.     8  Taunt.  403,  for  determinations  on  former  statutes,  in  the  Common 

(;;)  \  1,  10.  {a)  6  Taunt.  356.  2  Marsh.  57,  S.  C.  Ante,  195. 

(h)  2  Car.  &  P.  79.  3  Bing.  203,  S.  C. 

(c)  9  Moore,  710.  2  Bing.  372,  S.  C.  {d)  7  Taunt.  179.  1  Chit.  Rep.  222. 

(e)  4  Barn.  &  Cres.  419.  6  Dowl.  &  Ryl.  491,  S.  C. ;  and  see  4  Barn.  &  Cres.  15.  6  Dowl.  & 
Ryl.  75,  S.  C.  4  Barn.  &  Cres.  214.  Ry.  &  Mo.  322.  2  Car.  &  P.  120,  S.  C,  as  to  the  descrip- 
tion of  debts  in  the  schedule.  (/)  3  Barn.  &  Aid.  407.   2  Chit.  Rep.  222,  S.  C. 

[(j)  Stat.  7  Geo.  IV.  c.  57,  §  12,  52  ;  and  see  stat.  3  Geo.  IV.  c.  123,  g  8.  5  Geo.  IV.  c.  61, 
2  12,  &  6  Geo.  IV.  c.  121,  §  1. 


INSOLVENT  DEBTORS.  389 

whatsoever,  for  or  by  reason  of  any  debt,  damage,  costs,  sum  or  sums  of 
money,  or  for  or  by  reason  of  any  contempt  of  any  court  whatsoever,  for 
non-payment  of  any  sum  or  sums  of  money,  or  of  costs  taxed,  or  untaxed, 
either  ordered  to  be  paid,  or  to  the  payment  of  which  such  persons  would 
be  liable  in  purging  such  contempt,  or  in  any  manner  in  consequence  or 
by  reason  of  such  contempt,  at  any  time  within  the  space  of  fourteen  days 
next  after  the  commencement  of  the  actual  custod}'  of  such  prisoner, 
whether  such  commencement  shall  have  been  in  the  same  or  any  other 
prison,  or  the  rules  or  liberties  of  any  prison,  or  afterwards,  if  the  said 
court  shall  in  any  case  think  reasonable  to  permit  the  same,  to  apply  by 
'petition  in  a  summary  way  to  the  said  court,  for  his  or  her  discharge  from 
such  custody,  according  to  the  provisions  of  that  act;  And  in  such  petition 
shall  be  stated  the  time  and  place  of  the  first  arrest  of  such  prisoner,  in 
the  cause  or  causes  wherein  he  or  she  shall  then  be  detained,  and  the  time 
of  his  or  her  commitment  to  the  prison  wliere  he  or  she  shall  then  be 
confined;  and  if  such  prisoner  shall  not  have  been  in  the  same  custody 
from  the  time  of  such  first  arrest,  then  the  means  and  manner  by  which 
the  change  of  custody  of  such  prisoner  has  taken  place ;  and  also  the 
name  or  names  of  the  person  or  persons  at  whose  suit  or  prose- 
cution such  prisoner  shall,  at  the  time  of  presenting  such  *peti-  [  *3'J0  1 
tion,  be  detained  in  custody,  and  the  amount  of  the  debt  or 
debts,  sum  or  sums  of  money,  and  of  such  costs  as  aforesaid,  so  far  as  the 
amount  of  such  costs  is  ascertained,  for  which  he  or  she  shall  be  so  detain- 
ed, &c.  And  such  prisoner  shall,  in  such  petition,  pray  to  be  discharo-ed 
from  custody,  and  to  have  future  liberty  of  his  or  her  person  against  the 
demands  for  which  such  prisoner  shall  be  then  in  custody,  and  against  the 
demands  of  all  other  persons  who  shall  be,  or  claim  to  be,  creditors  of  such 
prisoner,  at  the  time  of  presenting  such  petition;  which  petition  shall  be 
subscribed  by  the  said  prisoner,  and  shall  forthwith  be  filed  in  the  said 
court. "(a) 

And  "  such  prisoner  shall,  at  the  time  of  subscribing  the  said  petition, 
duly  execute  a  conveyance  and  assignment  to  the  provisional  assignee  of 
the  said  court,  in  such  form  as  it  is  to  that  act  annexed,  of  all  the  estate 
right,  title,  interest,  and  trust  of  such  prisoner,  in  and  to  all  his  real  and 
personal  estate  and  effects,  both  within  this  realm  and  abroad,  except  the 
wearing  apparel,  bedding,  and  other  such  necessaries  of  such  person,  and 
his  or  her  family,  and  the  working  tools  and  implements  of  such  prisoner, 
not  exceeding  in  the  whole  the  value  of  twoit^  pounds;  and  of  all  future 
estate,  right,  title,  interest,  and  trust  of  such  prisoner,  in  or  to  any  real 
and  personal  estate  and  effects,  within  this  realm  or  abroad,  which  such 
prisoner  may  purchase,  or  which  may  revert,  descend,  be  devised  or  be- 
queathed, or  come  to  him  or  her,  before  he  or  she  shall  become  entitled 
to  his  or  her  final  discharge  in  pursuance  of  that  act,  according  to  the 
adjudication  made  in  that  behalf;  or  in  case  such  prisoner  shall  obtain  his 
or  her  discharge  from  custody,  without  any  adjudication  being  made  in 
the  matter  of  his  or  her  petition,  then  before  such  prisoner  shall  be  at 
large  and  out  of  custody ;  and  of  all  debts  due  or  growing  due  to  such 
prisoner,  or  to  be  due  to  him  or  her,  before  such  discharge  as  aforesaid  ; 
which  conveyance  and  assignment,  so  executed  as  aforesaid,  in  form  afore- 
said, shall  vest  all  the  real  and  personal  estate  and  effects  of  such  prisoner, 

(a)  Stat.  7  Geo.  IV.  c.  57,  g  10,  and  see  stat.  1  Geo.  IV.  c.  119,  g  4. 


391 


OF  THE  RELIEF  OF 


and  all  such  future  real  and  personal  estate  and  effects  as  aforesaid,  of 
every  nature  and  kind  ■^diatsoever,  and  all  sucli  debts  as  aforesaid,  in  tlie 
said  provisional  assignee. "(^) 

And  "  every  such  prisoner,  who  shall  apply  for  relief  under  that  act,  shall, 
■within  the  space  o^  fourteen  days  next  after  his  or  her  petition  shall  have 
been  filed,  or  within  such  further  time  as  the  said  court  shall  think  reason- 
able, deliver  into  the  said  court,  a  schedule,  containing  a  full  and  fair  de- 
scription of  such  prisoner,  as  to  his  or  her  name  or  names,  trade  or  trades, 
profession  or  professions,  together  with  the  last  usual  place  of  abode  of  such 
prisoner,  and  the  place  or  places  where  he  or  she  has  resided, 
[  *391  ]  during  the  time  when  his  or  her  debts  were  contracted :  and 
*also  a  full  and  true  description  of  all  debts  due  or  growing  due 
from  such  prisoner  at  the  time  of  filing  such  petition,  and  of  all  and  every 
person  and  persons  to  whom  such  prisoner  shall  be  indebted,  or  who,  to 
his  or  her  knowledge  or  belief,  shall  claim  to  be  his  or  her  creditors ; 
together  with  the  nature  and  amount  of  such  debts  and  claims  respectively, 
distinguishing  such  as  shall  be  admitted,  from  such  as  shall  be  disputed 
by  such  prisoner ;  and  also  a  full,  true,  and  perfect  account  of  all  the 
estate  and  effects  of  such  prisoner,  real  and  personal,  in  possession,  rever- 
sion, remainder,  or  expectancy  ;  and  also  of  all  places  of  benefit  or  advan- 
tage held  by  such  prisoner,  whether  the  emoluments  of  the  same  arise  from 
fixed  salaries,  or  from  fees,  or  otherwise;  and  also  of  all  pensions  or  allow- 
ances of  the  said  prisoner,  in  possession  or  reversion,  or  held  by  any  other 
person  or  persons  for  or  on  behalf  of  the  said  prisoner,  or  of  and  from 
which  the  said  prisoner  derives,  or  may  derive,  any  manner  of  benefit  or 
advantage ;  and  also  of  all  rights  and  powers,  of  any  nature  and  kind 
whatsoever,  which  such  prisoner,  or  any  other  person  or  persons  in  trust 
for  him,  or  for  his  or  her  use,  benefit,  or  advantage,  in  any  manner  what- 
soever, shall  be  seised  or  possessed  of,  or  interested  in,  or  entitled  unto, 
or  which  such  prisoner,  or  any  other  person  or  persons  in  trust  for  him  or 
her,  or  for  his  or  her  benefit,  shall  have  any  power  to  dispose  of,  charge, 
or  exercise  for  the  benefit  or  advantage  of  such  prisoner ;  together  with  a 
full,  true,  and  perfect  account  of  all  the  debts  due  or  growing  due,  at  the 
time  of  filing  such  petition,  to  such  prisoner,  or  to  any  person  or  persons 
in  trust  for  him  or  her,  or  for  his  or  her  benefit  or  advantage,  either  solely 
or  jointly  with  any  other  person  or  persons,  and  the  names  and  places  of 
abode  of  the  several  persons  from  whom  such  debts  shall  be  due  or  grow- 
ing due,  and  of  the  witnesses  who  can  prove  such  debts,  so  far  as  such 
prisoner  can  set  forth  the  same  ;  and  the  said  schedule  shall  also  contain 
a  balance  sheet  of  so  much  of  the  receipts  and  expenditures  of  such  prisoner, 
and  of  the  items  composing  the  same,  as  shall  be  at  any  time  required  by 
the  said  court  in  that  behalf;  and  shall  also  fully  and  truly  describe  the 
wearing  apparel,  bedding,  and  other  necessaries  of  such  prisoner,  and  his 
or  her  family,  and  the  working  tools  ai^d  implements  of  such  prisoner,  not 
exceeding  in  the  whole  the  value  of  twenty  pounds,  which  may  be  except- 
ed by  such  prisoner  from  the  operation  of  that  act,  together  with  the 

{b)  7  Geo.  IV.  c.  57,  §  11,  and  see  stat.  1  Geo.  IV.  c.  119,  |  4.  And  for  the  assignment 
bv  the  provisional  assignee,  see  stat.  1  Geo.  IV.  c.  119,  §  7.  7  Geo.  IV.  c.  57,  g  19;  and  as 
to  the  effect  of  such  assignment,  see  1  Moore  &  P.  19.  4  Bing.  392,  S.  C.  For  the  sale  and 
disposal  of  the  property,  see  stat.  1  Geo.  IV.  c.  119,  I  7,  &c.  7  Geo.  IV.  c.  57,  I  20,  &c. 
And  for  the  removal  of  assignees,  and  appointment  of  new  ones,  in  case  of  death,  &c.,  see 
stat.  1  Geo.  IV.  c.  119,  §  14.  7  Geo.  IV,  c.  57,  I  38. 


INSOLVENT  DEBTORS.  333 

value  of  sncli  excepted  articles  respectively;  and  the  said  schedule  shall 
he  suhscribed  by  such  prisoner,  and  shall  furthwith  be  filed  in  the  said 
court,  together  with  all  books,  papers,  deeds,  and  writings,  in  any  Avay 
relating  to  such  prisoner's  estate  or  effects,  in  his  or  her  possession,  or 
under  his  or  her  custody  or  control. "(^) 

After  the  petition  :ind  schedule  arc  fded,  the  court  is  required  to  appoint 
a  time  and  place  for  hearing  the  matters  of  them  ;((?<)  of  which  notice  is  to 
be  given  to  the  creditor  or  creditors  at  whose  suit  the  prisoner  is  detained 
in  custody,  or  his  or  their  attorney  or  agent,  and  to  the  other 
creditors  *named  in  the  schedule,  and  resident  within  the  united  [  *392  ] 
kingdom,  whose  debt  shnll  amount  to  the  sum  o^  five  pounds; 
and  to  be  inserted  in  i\\Q  London  Gazette^  and  also,  if  the  court  shall  think 
fit,  in  the  IJdinburrjh  and  Dublin  Gazettes,  or  either  of  them,  and  in  such 
other  newspaper  or  newspapers  as  the  said  court  shall  tlivcct.{a(()  At  the 
time  of  hearing,  the  matters  of  the  petition  and  schedule  are  to  be  ex- 
amined :  and  creditors  may  oppose  the  prisoner's  discharge;  whereupon 
the  hearing  may  be  adjourned,  if  necessary,  and  the  prisoner  shall  remain 
in  custody,  and'  he  again  brought  up,  and  the  hearing  and  examination 
further  proceeded  in,  as  to  the  court  shall  seem  fit.(^>)  Affidavits  may  be 
received  in  opposition  to  the  prisoner's  discharge,  in  certain  cases  men- 
tioned in  the  act ;  and  interrogatories  filed,  for  the  examination  or  cross 
examination  of  the  persons  making  or  joining  in  the  same:(6')  And  the 
schedule  and  prisoner's  accounts  may  be  referred,  if  the  court  shall  think 
fit,  upon  application  made  by  a  creditor,  and  supported  by  oath  or  affida- 
vit, to  an  officer  of  the  court,  or  examiner,  who  may  order  the  attendance 
of  the  prisoner. ((?) 

And  after  such  examination  made  into  the  matters  of  the  petition  and 
schedule  of  any  such  prisoner  as  thereinbefore  directed,  it  is,  as  we  have 
seen  in  a  former  chapter,(e)  declared  to  be  lawful,  "at  such  hearing,  or 
adjourned  hearing  as  aforesaid,  for  the  said  court,  or  the  commissioner  or 
justices  therein  mentioned,  upon  such  prisoner's  swearing  to  the  truth  of 
his  or  her  petition  and  schedule,  and  executing  such  warrant  of  attorney 
as  is  thereinafter  directed,  to  adjudge  that  such  prisoner  shall  be  discharged 
from  custody,  and  entitled  to  the  benefit  of  that  act,  at  such  time  as  the 
said  court  or  commissioner,  or  justices,  shall  direct,  in  pursuance  of  the 
provisions  thereinafter  contained  in  that  behalf,  as  to  the  several  debts 
and  sums  of  money  due,  or  claimed  to  be  due,  at  the  time  of  filing  such 
petition,  from  such  prisoner,  to  the  several  persons  named  in  his  or  her 
schedule  as  creditors,  or  claiming  to  be  creditors  for  the  same  respectively ; 
or  for  which  such  persons  shall  have  given  credit  to  such  prisoner,  before 
the  time  of  filing  such  petition,  and  which  were  not  then  payable ;  and  as 
to  the  claims  of  all  other  persons,  not  known  to  such  prisoner  at  the  time 
of  such  adjudication,  who  may  be  indorsees  or  holders  of  any  negotiable 
security  set  forth  in  such  schedule,  so  sworn  to  as  aforesaid. "(/) 

(a)  Stat.  7  Geo.  IV.  c.  57,  §  40  ;  and  see  stat.  1  Geo.  IV.  c.  119,  g  6. 
(6)  7  Geo.  IV.  c.  57,  §  41. 

.    (aa)  7  Geo.  IV.  c.  57,  g  42. 

(b)  Id.  I  43.  (c)  /(/.  I  44 ;  and  see  st.at.  1  Geo.  IV.  c.  110,  ?  22. 
(f/)  7  Geo.  IV.  c.  57,  ?  45;  and   see   stat.  1  Geo.  IV.  119,  I   IG.     And   for  the  mode  of 

bringing  up  an  insolvent  debtor,  when  in  custodj,  before  a  commissioner  of  the  insolvent 
court,  on  slat.  53  Geo.  III.  c.  102,  see  2  Uhit.  Rep.  225. 

(e)  Ante,  Chap.  X.  p.  213,  14. 

(/)  7  Geo.  IV.  c.  57,  §  4<J ;  and  see  stat.  1  Geo.  IV.  c.  119,  g  16. 


392 


OF  THE  RELIEF  OF 


The  discharge  of  any  prisoner,  so  adjudicated  as  aforesaid,  is  declared 
by  the  act(^)  to  extend  to  "  all  process  issuing  from  any  court,  for  any 
contempt  of  any  court,  ecclesiastical  or  civil,  for  non-payment  of  money, 
or  of  costs  or  expenses  in  any  court,  ecclesiastical  or  civil ;  and  in  such 
case,  the  said  discharge  shall  be  deemed  to  extend  also  to  all 
[  *393  ]  costs  which  *such  prisoner  would  be  liable  to  pay,  in  conse- 
quence or  by  reason  of  such  contempt,  or  on  purging  the  same  : 
And  every  discharge  so  adjudicated  as  aforesaid,  as  to  any  debt  or  dam- 
ages of  any  creditor  of  such  prisoner,  shall  be  deemed  to  extend  also  to  all 
costs  incurred  by  such  creditor,  before  the  filing  of  such  prisoner's  sche- 
dule, in  any  action  or  suit  brought  by  such  creditor  against  such  prisoner, 
for  the  recovery  of  the  same :  and  all  persons,  as  to  whose  demands  for 
any  such  costs,  money  or  expenses,  any  such  person  shall  be  so  adjudged 
to  be  discharged,  shall  be  deemed  and  taken  to  be  creditors  of  such  pri- 
soner in  respect  thereof,  and  entitled  to  the  benefit  of  all  the  provisions 
made  for  creditors  by  that  act;  subject  nevertheless  to  such  ascertaining 
of  the  amount  of  the  said  demands,  as  may  be  had  by  taxation  or  other- 
wise, and  to  such  examination  thereof  as  is  therein  provided,  in  respect  of 
all  claims  to  a  dividend  of  such  insolvent's  estate  and  efi"ects." 

The  discharge  of  any  such  prisoner  so  adjudicated,  is  also  declared  by 
the  act, (a)  to  extend  to  "  any  sum  and  sums  of  money,  which  shall  be  pay- 
able by  way  of  annuity,  or  otherwise,  at  any  future  time  or  times,  by  vir- 
tue of  any  bond,  covenant,  or  other  securities,  of  any  nature  whatsoever: 
And  every  person  and  persons  who  would  be  a  creditor  or  creditors  of 
such  prisoner,  for  such  sum  or  sums  of  money,  if  the  same  were  presently 
due,  shall  be  admissible  as  a  creditor  or  creditors  of  such  prisoner,  for  the 
value  of  such  sum  or  sums  of  money,  so  payable  as  aforesaid ;  which 
value  the  said  court  shall,  upon  application  at  any  time  made  in  that 
behalf,  ascertain  ;  regard  being  had  to  the  original  price  given  for  such 
sum  or  sums  of  money,  deducting  therefrom  such  diminution  in  the  value 
thereof,  as  shall  have  been  caused  by  the  lapse  of  time  since  the  grant 
thereof  to  the  time  of  filing  such  prisoner's  petition;  and  such  creditor  or 
creditors  shall  be  entitled  in  respect  of  such  value,  to  the  benefit  of  all 
the  provisions  made  for  creditors  by  that  act,  without  prejudice  neverthe- 
less to  the  respective  securities  of  such  creditor  or  creditors,  excepting  as 
respects  such  prisoner's  discharge  under  that  act."  Previously  to  the 
above  act,  the  grantor  of  an  annuity,  who  had  been  discharged  out  of  cus- 
tody, under  the  insolvent  act,  51  Geo.  III.  c.  125,  was  holden  to  be  dis- 
charged, both  as  to  his  person  and  property,  from  all  payments  of  the 
annuity.(5)  But  that  act  did  not  operate  as  a  discharge  of  his  sureties, 
or  of  specific  securities. (5)  And  a  person  discharged  under  it  was  holden 
to  be  liable  to  his  surety,  for  the  arrears  of  an  annuity,  due  after  his  dis- 
charge, which  the  surety  had  been  obliged  to  pay.(c) 

After  any  person  shall  have  become  entitled  to  the  benefit  of  the  statute 
7  Geo.  IV.  c.  51, {d)  by  any  such  adjudication  as  aforesaid,  "no  writ  of 
fieri  facias,  or  elegit,  shall  issue  on  such  judgment  obtained  against  such 
prisoner  for  any  debt  or  sum  of  money,  with  respect  to  which  such  person 

(g)  I  50,  and  see  stat.  1  Geo.  IV.  c.  119,  ?  16, 

{>i)  I  51 ;  and  see  stat.  1  Geo.  IV.  c.  119,  §  10. 

\b)  4  Taunt.  460;  and  see  id.  854,  accord. 

(c)  2  Maule  &  Sel.  551.     Ante,  213. 

{d)  I  61;  and  see  stat.  1  Geo.  IV.  c.  119,^  28._\ 


INSOLVENT  DEBTOR!?.  393 

shall  have  so  become  entitled,  nor  in  any  action  upon  any  new  contract  or 
security  for  payment  thereof,  except  upon  the  judgment  entered 
*up  against  such  prisoner,  according  to  that  act :  And  if  any  [  •304  ] 
suit  or  action  shall  be  brought,  or  any  scire  facias  be  issued, 
against  any  sucli  person,  his  or  her  heirs,  executors  or  administrators,  for 
any  such  debt  or  sum  of  money,  or  upon  any  new  contract  or  security  for 
payment  thereof,  or  upon  any  judgment  obtained  against  or  any  statute  or 
recognizance  acknowledged  by,  such  person  for  the  same,  except  as  afore- 
said, it  shall  and  may  be  lawful  for  such  person,  his  or  her  heirs,  execu- 
tors or  administrators,  to  ^^ZcacZ  generally,  that  sucli  person  was  duly 
discharged  according  to  that  act,  by  the  order  of  adjudication  made  in 
that  behalf,  and  that  such  order  remains  in  force,  without  pleading  any 
other  matter  specially :(««)  whereto  the  plaintiff  or  plaintiffs  shall  or  may 
repli/  generally,  and  deny  the  matters  pleaded  as  aforesaid,  or  reply 
any  other  matter  or  thing  which  may  show  the  defendant  or  defendants 
not  to  bo  entitled  to  the  benefit  of  that  act,  or  that  such  person  was  not 
duly  discharged  according  to  the  provisions  thereof,  in  the  same  manner 
as  the  plaintiffs  might  have  replied,  in  case  the  defendant  or  defendants 
had  pleaded  that  act,  and  a  discharge  by  virtue  thereof,  specially." 

Particular  modes  of  proceeding  are  appointed  by  the  act,  in  the  case  of 
married  women, (a)  and  prisoners  of  unsound  mind:(6)  and  the  act  only 
extends  to  prisoners  within  the  walls  of  the  prison,  except  under  particu- 
lar circumstances.((?)  It  is  also  provided,  that  "  the  benefit  of  that  act 
shall  not  be  allowed  to  any  prisoners  petitioning  the  said  court,  who  hav- 
ing been  arrested  in  any  county  or  place  where  he  or  she  had,  at  or  lately 
before  such  arrest,  his  or  her  usual  place  of  abode,  other  than  in  the 
counties  of  Middlesex  or  Surrey,  or  the  city  of  London,  or  borough  of 
Southivark,  such  usual  place  of  abode  being  distant  more  than  twenty 
miles  from  the  court-house  of  the  said  court,  shall  be  removed  by  any 
writ  of  habeas  corpus,  sued  out  on  his  or  her  behalf,  or  by  his  or  her  pro- 
curement or  request,  from  custody  in  such  county  or  place,  to  any  other 
county.  "(iZ) 

And  "no  person  petitioning  the  said  court  for  relief  under  that  act, 
who  shall  have  been  at  any  time  discharged  by  virtue  of  the  same,  or  of 
any  other  act  for  the  relief  of  insolvent  debtors,  or  who  shall  have  been 
duly  declared  bankrupt  before  the  commencement  of  his  or  her  imprison- 
ment, under  any  commission  still  remaining  in  force,  and  shall  not  have 
obtained  his  or  her  certificate  under  such  commission,  shall  be  entitled  to 
the  benefit  of  that  act,  within  the  space  o'l  jive  years  after  such  discharge, 
or  declaration  of  bankruptcy,  unless  three  fourths  in  number  and  value 
of  the  creditors  against  whom  such  person  shall  seek  to  be  discharged,  by 
virtue  of  that  act,  shall  signify  their  assent  to  such  discharge,  or  it  shall 
be  made  to  appear  to  the  satisfaction  of  the  said  court,  or  of  a  commis- 
sioner thereof  on  his  circuit,  or  such  justices  as  aforesaid,  before  whom 
the  said  person  shall  be  brought,  for  the  hearing  of  the  matters 
*of  his  or  her  petition,  that  such  person  has  since  such  former  [  *395  ] 
discharge,  or  declaration  of  bankruptcy,  endeavoured  by  indus- 

{aa)  For  the  history  of  the  acts  for  the  relief  of  iriBolvent  debtors,  with  the  mode  of  plead- 
ing them,  nnil  tlie  evidence  thereou,  see  Cas.  temp,  llardw.  145,  0. 

(a)  Stat.  7  Ceo.  IV.  c.  57,  ?  72;  and  see  stat.  3  Geo.  IV.  c.  123,  ?  12.    5  Barn.  &  Aid.  759. 

(b)  Stat.  7  Ceo.  IV.  c.  57,  ?  73  ;  and  see  stat.  1  Geo.  IV.  c.  1U»,  {  44. 

(c)  7  Geo.  IV.  c.  57,  g  12,  aud  see  id.  §  52.  (d)  Id.  I  66. 

Vol.  I.— 25 


395  OF  THE  RELIEF  OF  INSOLVENT  DEBTORS. 

trj  and  frugality  to  pay  all  just  demands  upon  him  or  her,  and  has  incur- 
red no  unnecessary  expense ;  and  that  the  debts  which  such  person  has 
incurred,  subsequent  to  such  discharge,  or  declaration  of  bankruptcy, 
have  been  necessarily  incurred  for  the  maintenance  of  such  person,  or  his 
or  her  family ;  or  that  the  insolvency  of  such  person  has  arisen  from  mis- 
fortune, or  from  inability  to  acquire  subsistence  for  himself  or  herself, 
and  his  or  her  family. "(aa) 

It  is  also  provided,  that  "the  act  shall  not  extend  to  discharge  any  pri- 
soner seeking  the  benefit  thereof,  with  respect  to  any  debt  due  to  his  ma- 
jesty or  his  successors,  or  to  any  debt  or  penalty  with  which  he  or  she  shall 
stand  charged  at  the  suit  of  the  crown,  or  of  any  person,  for  any  offence 
committed  against  any  act  or  acts  of  parliament,  relative  to  any  branch 
of  the  public  revenue ;  or  at  the  suit  of  any  sheriff  or  other  public  officer, 
upon  any  bail  bond  entered  into  for  the  appearance  of  any  person  prose- 
cuted for  any  such  offence;  unless  three  of  the  commissioners  of  his 
majesty's  treasury  for  the  time  being  shall  certify,  under  their  hands, 
their  consent  to  such  discharge. "(55) 

As  it  may  sometimes  happen,  that  a  debt  of,  or  claim  upon,  or  balance 
due  from  such  prisoner  as  aforesaid,  may  be  specified  in  his  or  her  schedule 
so  sworn  to  as  aforesaid,  at  an  amount  which  is  not  exactly  the  actual  amount 
thereof,  without  any  culpable  negligence  or  fraud,  or  evil  intention  on  the 
part  of  such  prisoners  there  is  a  claus9  in  the  act,(c(?)  that  "in  such  case,  the 
said  prisoner  shall  be  entitled  to  all  and  every  benefit  and  protection  of 
that  act ;  and  the  creditor  in  that  behalf  shall  be  entitled  to  the  benefit  of 
all  the  provisions  made  for  creditors  by  that  act,  in  respect  of  the  actual 
amount  of  such  debt,  claim,  or  balance,  and  neither  more  nor  less  than  the 
same,  to  all  intents  and  purposes,  such  error  in  the  said  schedule  notwith- 
standing." 

The  future  effects  of  an  insolvent  are  liable  by  this  act:((^)  And  "  before 
any  adjudication  shall  be  made  in  the  matter  of  the  petition  of  any  such 
prisoner,  the  said  court,  or  commissioner,  or  justices,  shall  require  such 
prisoner  to  execute  a  warrant  of  attorney,  to  authorize  the  entering  up  of 
a  judgment  against  such  prisoner,  in  some  one  of  the  superior  courts  at 
Westminster,  in  the  name  of  the  assignee  or  assignees  of  such  prisoner,  or 
of  such  provisional  assignee,  if  no  other  assignees  shall  have  been  appointed, 
and  shall  have  accepted  such  office,  for  the  amount  of  the  debts  stated  in  the 
schedule  of  such  prisoner,  so  sworn  to  as  aforesaid,  to  be  due,  or  claimed  to 
be  due,  from  such  prisoner,  or  so  much  thereof  as  shall  appear  at  the  time  of 
executing  such  warrant  of  attorney  to  be  due  and  unsatisfied  ;  and  the  order 
of  the  said  court  for  entering  up  such  judgment  shall  be  a  sufficient  authority 
to  the  proper  officer  for  entering  up  the  same;  and  such  judgment 
[  *396  ]  shall  have  the  force  of  a  recognizance :  *And  if  at  any  time  it  shall 
appear  to  the  satisfaction  of  the  said  court,  that  such  prisoner  is  of 
ability  to  pay  such  debts,  or  any  part  thereof,  or  that  he  or  she  is  dead, 
leaving  assets  for  that  purpose,  the  said  court  may  permit  execution  to  be 
taken  out  upon  such  judgment,  for  such  sum  of  money  as  under  all  the  cir- 
cumstances of  the  case  the  said  court  shall  order :  such  sum  to  be  distributed 
rateably  amongst  the  creditors  of  such  prisoner,  according  to  the  mode 


aa)  Stat.  7  Geo.  IV.  c.  57,  I  64;  and  see  stat.  1  Geo.  IV.  c.  119,  ?  42,  3. 

bh)  Stat.  7  Geo.  IV.  c.  57,  §  74;  and  see  stat.  1  Geo.  IV.  c.  119,  I  40. 

cc)  7  Geo.  IV.  c.  57  ,  §  63. 

d)  7  Geo.  IV.  c.  57, 1  1 1,  57,  8,  9 ;  and  see  stat.  1  Geo.  IV.  c.  119,  g  25,  29,  30.  Ante,  388. 


OP  THE  REMOVAL  OF  CAUSES  FROM  INFERIOR  COURTS.  396 

thereinbefore  directed,  in  the  case  of  a  dividend  made  after  adjudication  ; 
and  such  further  proceedings  shall  and  maybe  had  upon  such  judgment,  as 
may  seem  fit  to  the  discretion  of  the  said  court  from  time  to  time,  until  the 
whole  of  the  de])ts  due  to  the  several  persons  against  whom  such  discharge 
shall  have  been  obtained,  shall  be  fully  paid  and  satisfied,  together  with 
such  costs  as  the  said  court  shall  think  fit  to  award;  and  no  scire  facias 
shall  be  necessary  to  revive  such  judgment,  on  account  of  any  lapse  of 
time,  but  execution  shall  at  all  times  issue  thereon,  by  virtue  of  the  order 
of  the  said  court:  Provided  always,  that  in  case  any  such  application 
against  any  such  prisoner  shall  appear  to  the  said  court  to  be  ill  founded 
and  vexatious,  it  shall  be  lawful  for  the  said  court  not  only  to  refuse  to 
make  any  order  on  such  application,  but  also  to  dismiss  the  same,  with 
such  costs  against  the  party  or  parties  making  the  same,  as  to  the  said 
court  shall  appear  reasonable;  and  the  said  costs  shall  be  paid  accord- 
ingly."(<0 


•CHAPTER    XVI.  [  •397  ] 

Of  the  Removal  of  Causes,  from  inferior  Courts. 

The  different  modes  of  commencing  actions,  in  the  courts  of  King's 
Bench,  Common  Pleas,  and  Exchequer,  having  been  already  considered,  it 
may  be  proper  to  take  a  view  of  the  various  means  by  which  they  are 
removed  thither  from  inferior  courts.  These  are,  by  writ  o^  certiorari^  or 
habeas  corpus,  from  inferior  courts  of  record ;  or  by  writ  of  pone,  rccord- 
ari  facias  loquelam.,  or  accedas  ad  curiam,  from  such  as  are  not  of  record. 

The  writ  of  certiorari(aa)  is  a  writ  issuing  sometimes  out  of  Chancery,(J) 
and  sometimes  out  of  the  King's  Bench  or  Common  Pleas  :{c)  and  lieth 
where  the  king  would  be  certified  of  any  record  which  is  in  the  Treasury, 
or  in  the  Common  Pleas,  or  in  any  other  court  of  record ;  or  before  the 
sheriff  and  coroners :  or  of  a  record  before  commissioners,  or  before  the 
eschoator ;  in  which  cases  he  may  send  this  writ  to  any  of  the  said  courts 
or  officers,  to  certify  such  record  before  him  in  banco,  or  in  Chancer}',  or 
before  other  justices,  where  the  king  pleaseth  to  have  the  same  certified : 
and  he  or  they  to  whom  the  certiorari  is  directed,  ought  to  send  the  same 
record,  or  the  tenor  of  it,  as  commanded  by  the  writ;  and  if  they  fail  so  to 
do,  then  an  alias  shall  be  awarded,  and  afterwards  a  pJurics,  with  a  clause 
of  vel  causu)n  nobis  siijnificcs,  and  after  that  an  attachment,  if  good  cause 
be  not  returned  upon  the  phirics.{d) 

Suits  commenced  in  inferior  courts  of  record  may,  it  seems,  be  removed 
by  certiorari  into  the  Exchequer,  by  the  plaintiff  or  defendant  :{e)    And 

(a)  1  Geo.  IV.  c.  57,  ?  57  ;  and  see  stat.  54  Geo.  III.  c.  23,  ?  14.  1  Geo.  IV.  c.  119,  g  25. 
And  for  the  mode  of  proceeding  against  future  effects,  see  stat.  1  Geo.  IV.  c.  119,  ^  29,  9. 
7  Geo.  IV.  c.  57,  §  58,  9 ;  and  as  to  tiie  cancelling  of  the  warrant  of  attorney,  and  entering 
satisfaction  on  the  judgment,  when  the  debts  are  satisfied,  see  stat.  7  Geo.  IV.  c.  57,  g  Gl. 

(an)  Append.  Chap.  XVI.  g  1,  &c.  (Ij)  Id.  Chap.  XLV.  §  28. 

(e)  2  Ld.  Raym.  836.   1  Salk.  143.    7  Mod.  138,  S.  C.   Barnes,  345,  399.    Pr.  Reg.  221. 

(d)  F.  N.  B.  243.  A.  B.  Gilb.  Exec.  175.  6  Palm.  562. 

(e)  Skin.  2  44,  246.  And  see  Man.  Ex.  Pr.  152,  ic,  for  the  different  modes  of  removing 
causes  into  the  court  of  Exchequer. 


397  OF  THE  REMOVAL  OF  CAUSES 

this  court,  having  an  original  and  in  many  cases  an  exclusive  jurisdiction  in 
fiscal  matters,  ^Yill  not  permit  questions  in  the  decision  of  which  the  king's 
revenue  is  interested,  to  be  discussed  before  any  other  tribunal.  On  such 
occasions,  the  court  interposes  upon  motion,  by  ordering  the  proceedings  to 
bo  removed  into  the  office  of  pleas. (/)  The  usual  order,  in  cases  of  this 
nature,  is  that  the  action  be  removed  out  of  the  King's  Bench  or  Common 
Pleas,  or  other  court  in  which  it  is  depending,  into  the  office  of  pleas  in  the 
Exchequer ;  and  that  it  shall  be  there  in  the  same  forwardness,  as  in  the 
court  out  of  which  the  action  is  removed.  This  order,  however, 
[  •SQS  ]  does  not  operate  as  a  certiorari,  to  remove  the  proceedings;  *but 
as  a  personal  order  on  the  party,  to  stay  them  there,  with  liberty 
to  commence  his  action  in  the  office  of  pleas;  and  of  course  calls  upon  the 
defendant  in  that  action  to  appear,  to  accept  a  declaration,  and  to  put  the 
plaintiff  in  the  same  state  of  forwardness,  in  the  office  of  pleas,  as  he  was 
in  the  other  court. (aa) 

When  a  certiorari  issues  out  of  Chancery,  it  is  returnable  in  that  court ; 
and  the  record  when  brought  up,  if  wanted  in  another  court,  must  be  sent 
there  by  mittimus. {hh)  And  anciently,  it  seems,  no  other  court  but  the 
Chancery  could  grant  a  certiorari,  on  a  suggestion,  where  there  was  nothing 
before  them  ;((?)  but  it  is  now  settled,  that  a  record  may  be  removed  into 
the  King's  Bench  or  Common  Pleas,  as  well  by  certiorari  out  of  these 
courts, (d)  as  by  certiorari  and  mittimus  out  of  Chancery  :[e)  For,  as  the 
King's  Bench  and  Common  Pleas  have  the  superintendence  of  all  inferior 
jurisdictions,  their  proceedings  are  removable  into  these  courts,  in  order 
that  the  judges  may  inspect  the  record,  and  see  whether  they  keep  within 
the  limits  of  their  jurisdiction. (^) 

A  certiorari  lies,  in  general,  for  the  removal  of  all  causes  from  inferior 
courts,(^)  whether  the  defendant  has  been  proceeded  against  therein  by 
capias,  or  other  process  :[a]  and  it  will  lie  to  remove  an  ejectment  from  an 

m  Hardr.  176.   Parker,  143.    1  Anstr.  205,  n.    Man.  Ex.  Pr.  161,  2,  164,  ti.    1  Price,  206. 

\aa)  Per  Eyre^  Ch.  B.  1  Anstr.  205,  n;  and  see  8  Price,  584.  Chitty's  Commercial  law,  1 
V.  805,  6. 

{bb)  Append.  Chap.  XLV.  §  30. 

(c)  Gilb.  Exec.  153,  cites  41  Ass.  22. 

\d)  Cro.  Eliz.  821.  1  Ld.  Pvaym.  216.  2  Atk.  317.  Thes.  Brev.  77.  Append.  Chap.  XVI. 
2  1,  &c. 

(e)  F.  N.  B.  244,  (A),  245,  (A).  Gilb.  Exec.  175,  6;  and  see  1  Madd.  Chan.  12. 

(/)  Gilb.  Exec.  143.   1  Salk.  144,  5. 

iff)  2  Dowl.  &  Ryl.  409,  per  BayUy,  J. 

[a]  a  supreme  court  has  power,  by  the  common  law,  to  review  the  proceedings  of  all 
inferior  tribunals,  and  to  pass  upon  their  jurisdiction  and  decisions  of  questions  of  law. 
But  unless  a  statute  confers  the  power  of  reviewing  determinations  of  inferior  tribunals 
upon  questions  of  fact,  such  determinations  are  conclusive,  and  cannot  be  reversed  on  cer- 
tiorari. The  court  can  only  review  errors  in  law.  Scott  v.  Beatty,  3  Zab.  N.  J.  201.  Starr 
v.  Trustees  of  Rochester,  6  Wend.  564.  Independance  v.  Pompton,4:  Halst.  209.  Ex  parte  Hay- 
ward,  10  Pick.  358.  Le  Roy  v.  The  Mayor,  ^c,  20  Johns.  430.  Parks  v.  Boston,  8  Pick.  226. 
Wildy  V.  Washburn,  16  Johns.  50.  State  v.  Sertft,  2  Hill,  369.  Baldwin  v.  Simmons,  4  Halst. 
196.  Woody.  Tallman,  Coxe,  153.  Ex  parte  Nightingale,  11  Pick.  168.  Williamson  v.  Car- 
nan,  1  Gill  &  Johns.  196.  Clark  v.  Vanlciu,  6  Halst.  78.  Farley  v.  M'Intire,  1  Green,  190. 
Graecen  v.  Allen,  2  Green,  74.  Andrews  v.  Andrews,  2  Green,  141.  And  when  the  proceed- 
ings of  the  court  below  are,  in  any  stage  of  them,  different  from  the  course  of  the  common 
law,  whether  in  civil  or  criminal  cases,  the  writ  of  certiorari  is  the  only  proper  process  to 
correct  any  error  that  may  have  occurred,  unless  some  different  process  is  given  by  sta- 
tute. Commonwealth  v.  Ellis,  11  Mass.  466.  Bath  Bridge,  ^c,  Company  v.  Magoun,  8 
Greenl.  293.  Ruhlman  v.  Commonwealth,  5  Binn.  27.  Phillips  v.  Phillips,  3  Halst.  123. 
Triggs  v.  Boyce,  4  Hayw.  100.    Williamson  r.  Carnan,  1  Gill  &  Johns.  196.    Macahoyy.  Com- 


FROM  INFERIOR  COURTS.  398 

inferior  court.(/i)     This  writ  may  be  sued  out  htfure,  or,  in  Bomc  cases, 
after  judgment ;  and  lies  in  civil  actions  before  judgment,  in  the  King's 

(h)  1  Riirn.  &  Cres.  253.  2  Dowl.  &  Rvl.  407,  S.  C.  3  Rarn.  k  Crcs.  550.  5  Dowl.  A  Ryl, 
445,  S.  C.  ;  but  seo  Barucs,  421.  Run.  liject.  2  Ed.  174,  5.  Ad.  Kject.  2  Ed.  17C,  7,  ttml . 
contra. 

monwealth,  2  Virg.  Cas.  270.     Bob  v.  State,  2  Yerg.  173.     Buggtn  v.  JiCGrudcr,  Walk.  112. 
Swate  V.  T/ie  Mayor,  .jr.,  8  Gill.  150.    The  Slate  v.  Bell,  13  Ired.  373. 

Whenever  the  record  of  an  inferior  court  is  brought,  in  duo  course  of  law,  by  appeal, 
writ  of  error,  &c.,  before  a  superior  court,  and  there  is  a  manifest  defect,  or  a  suggestion  of 
a  diminution,  a  certiorari  will  be  awarded,  as  auxiliary  process,  directing  a  return  of  a  full 
and  complete  transcript,  and  other  papers.  Smith  v.  Opdyhe,  7  Halst.  85.  State  v.  CoUiu.f,  3 
Dev.  117.  Slate  v.  Ecid,  1  Der.  &  Bat.  382.  Browne  v.  Oxbornc,  1  Blackf.  32.  Thatcher  v.  Mil- 
ler, 11  Mass.  414.  Stewart  v.  Ingle,  9  Wheat.  Rep.  526.  Commonwealth  v.  Roly,  12  Pick.  496. 
Rcid  V.  De  Wolf,  Wright,  418.  Andrews  v.  Bosworlh,  3  Mass.  223.  Fowler  v.  Lindsay,  3  Dall. 
413.  Sweet  v.  Overseers,  3  Johns.  23.  Thorp  v.  Ross,  2  South.  720.  Sayre  v.  Blaurhard, 
lb.  551.  Commonwealth  v.  New  Milford,  4  Mass.  447.  Scott  v.  Hall,  2  Munf.  229.  Field  t. 
Milton,  3  Cranch,  514.  Burr  v.  Waterman,  2  Cow.  38,  note.  Brackeit  v.  State,  2  Tyler,  152. 
And,  perhaps,  wherever  there  is  error  in  civil  or  criminal  proceedings,  which  cannot  be 
reached  by  writ  of  error,  the  proper  remedy  in  the  absence  of  a  statutory  one,  is  the  writ 
of  certiorari.  la  case  no  appeal  will  lie,  the  supreme  court  will  issue  a  certiorari  to  the  dis- 
trict court  for  the  purpose  of  reviewing  its  summary  proceedings.  The  People  v.  Turner,  1 
Cal.  152.  And  this  writ  may  issue  to  all  inferior  tribunals  and  jurisdictions,  in  cases  where 
they  exceed  their  jurisdictions,  and  in  cases  where  they  proceed  illegally,  and  there  is  no 
appeal  or  other  mode  of  directly  reviewing  their  proceedings.  But  an  error  of  judgment 
on  the  part  of  the  judge,  either  as  to  the  facts  or  the  law  of  the  case,  could  not  bo  inquired 
into  and  corrected.     Dooliltle  v.  Galena  and  Chicago  R.  R.  Co.,  14  111.  381. 

Thus  certiorari,  and  not  a  writ  of  error,  is  the  proper  process  to  remove  the  proceedings  of 
the  court  of  sessions,  county  commissioners,  &c.,  in  laying  out  highways,  and  other  pro- 
ceedings respecting  highways  and  turnpike  roads.  Commonwealth  v.  Coombs,  2  Mass.  489. 
Commonwealth  v.  Ilall,  8  Pick.  440.  Commonwealth  v.  West  Boston  Bridge,  13  Pick.  195. 
Commonwealth  v.  Cambridge,  7  Mass.  158.  While's  case,  2  Overt.  109.  Lawton  v.  Commit- 
sioners,  2  Caines,  179.  Cowan's  case,  1  Overt.  311.  Hatter  of  Highway,  2  Pen.  1038.  Bur- 
rows T.  Vandevier,  3  Ham.  383.  Adams  v.  Newfane,  8  Verm.  271.  Schuylkill  Falls  Road,  7 
Binn,  250.  So  of  the  proceedings  of  the  mayor  and  aldermen  of  Boston,  in  laying  out  and 
altering  streets.  Parks  v.  City  of  Boston,  8  Pick.  218.  And  to  remove  the  proceedings  of 
the  Common  Pleas  or  sessions,  on  a  complaint  against  the  alleged  father  of  a  bastard  child. 
Brotrne  v.  Simjhson,  2  Mass.  445.  Commonwealth  v.  Cole.  5  Mass.  517.  Commonwealth  v. 
Jtoore,  3  Pick.  194.  Mariner  v.  Dyer,  2  Greenl.  165.  Tillson  v.  Bowley,  8  Greenl.  163. 
Laivson  v.  Scott,  1  Yerg.  92.  Siveet  v.  Overseers,  3  Johns.  23.  GHe  v.  Moore,  2  Pick. 
386.  Chaflin  v.  Hubbard,  Brayt.  38.  Or  the  proceedings  before  a  justice  of  the  peace, 
on  a  complaint  to  recover  a  fine  under  the  militia  law.  Edgar  v.  Dodge,  4  Mass.  670. 
Commonwealth  v.  Derby,  13  Mass.  433.  Ball  v.  Brigham,  5  Mass.  406.  Dunham  v.  United 
Stales,  4  llayw.  54.  Knight  v.  Payne,  Wright,  369.  Rathbun  v.  Sayer,  15  Wend.  451.  Or 
to  correct  proceedings  in  cases  of  foreign  attachment.  Allen  v.  Williams,  1  Ilayw.  17. 
Fryar  v.  Blackmore,  2  Ilayw.  374.  Hartshorn  v.  Wilson,  2  Ham.  27.  Wilson  v.  Ray,  Charlt. 
109.  Branson  v.  Shinn,  1  Green,  250.  Ayres  v.  Bartlet.  2  Green,  330.  Learned  v.  Duval, 
3  Johns.  Cas.  141,  contra.  Walker  v.  Gibbs,  1  Yeates,  255.  Lcnis  v.  Wallick,  3  S.  &  B. 
411.  So  where  on  appeal  is  not  allowed  by  law,  it  is  a  substitute  for  an  appeal. 
Reardon  v.  Guy,  2  Ilayw.  245.  Dougan  v.  Arnold,  4  Dev.  99.  Swaim  v.  Fentress,  4  DeT. 
601.  Or  to  remove  irregular  proceedings  of  a  commissioner  of  insolvency.  Anon.,  1 
Wend.  90.  Or  the  proceedings  of  the  assistant  justices  of  the  city  of  New  York,  under  the 
statute  relating  to  summary  proceedings  to  recover  the  jiossession  of  land.  Roach  v.  (^o-nne, 
9  Wend.  227.  Or  the  proceedings  of  justices  of  the  peace  ajiinjinting  a  town  officer,  on 
the  neglect  of  the  town  to  make  an  appointment.  Wildy  v.  Washburn,  \G  Johns.  40.  In 
Maryland  and  New  Jersey,  it  is  the  process  by  which  the  decrees  of  the  Orphan's  court  are 
brought  before  the  Supremo  court  for  correction.  Bradford  v.  Richardson,  3  Har.  &  M'llen. 
348.  Stale  v.  Mayhew,  4  Ilalst.  70.  Cozens  v.  Dickenson,  2  Pen.  507.  State  v.  Judges,  ^e., 
2  South.  554.  Ludlow  v.  Ludlow,  1  South.  387.  Ez  parte  Caig,  Charlt.  159.  M'Caskill  r. 
ifCaskill,  Charlt.  151.  Burroughs  v.  Mickle,  2  Pen.  913.  Vanyelt  v.  Veght,  2  Green,  207. 
Durham  v.  Hall,  3  Har.  &  M'Hen.  352.  And  in  Massachusetts  the  proceedings  of  the 
Common  Pleas,  (when  an  appeal  was  not  allowed,)  on  a  complaint  for  flowing  land  by  a 
mill-dam.  Commonwealth  v.  Ellis,  11  Mass.  4G2.  Spring  v.  Lowell,  6  Mass.  399.  Vanduten 
V.  Comstock,  3  Mass.  187.  And  where  a  decision  was  made  without  giving  the  party  a 
fair  opportunity  to  be  heard,  or  to  produce  testimony.  Fonda  v.  Canal  Appraisers,  1  Wend. 
283.     Brooklyn  v.  Patchcn,  8  Wend.  47.     So,  if  notice  is  not  given  to  parties  boforo  ad- 


398  OF  THE  REMOVAL  OF  CAUSES 

Bench  or  Common  Pleas,  in  all  cases  wliere  these  courts  have  jurisdiction, 
and  can  administer  the  same  justice  to  the  parties  as  the  court  below:  and 

judicating  upon  their  rights.  Commissioners  v.  Claw,  15  Johns.  537.  Commonwealth  v. 
Chase,  2  Mass.  170.  Commonwealth  v.  Cambridge,  4  Mass.  627.  Commonwealth  v.  Coombs,  2 
Mass.  489.  Commonwealth  v.  l^eters,  3  Mass.  229.  Commonwealth  v.  Sheldon,  3  Mass.  188. 
Slate  V.  Jiarinff,  8  Greenl.  135.     Uz parte  Baring,  8  Greenl.  137. 

Certiorari  to  correct  proceedings  of  inferior  tribunals  is  not  a  writ  of  right,  but  is  matter 
of  sound  discretion  in  the  court.  Bath  Bridge,  ^~c.  Company  v.  Magoun,  8  Greenl.  293. 
Drowne  v.  Slimpson,  2  Mass.  445.  Lee  v.  Childs,  17  Mass.  352.  Iluse  v.  Grimes,  2  N.  Hamp. 
210.  Munroe  v.  Baker,  6  Cow.  396.  People  v.  Supervisors,  ^-c,  15  Wend.  198.  Addis.  193, 
note.  Freeman  v.  Oldham,  4  Monr.  420.  State  v.  Senft,  2  Hill,  367.  Rockingham  v.  West- 
minster, 24  Verm.  228.  Duggen  v.  M^Gruder,  Walker,  112.  And  before  granting  it  the  court 
will  look  into  the  record,  and  the  circumstances  attending  the  process ;  and  if  the  error  be 
such  as  does  not  affect  the  substantial  justice  of  the  case,  but  is  in  the  forms  of  proceeding 
only,  the  writ  will  be  refused.  Ex -parte  Weston,  11  Mass.  417.  Ex  parte  Adams,  4  Pick.  25. 
Freetown  v.  Commissioners,  9  Pick.  46.  Royalton  v.  Fox,  5  Verm.  458.  Wilbraham  r.  Com- 
missioners, 11  Pick.  322.  The  State  v.  Anderson,  Coxe,  318.  The  uniform  practice  is  to  con- 
Bider  the  grounds  for  granting  a  certiorari  open  for  investigation  during  the  next  term  after 
granting  it,  whether  it  be  granted  within  or  out  of  court.  Dwiggins  v.  Robertson,  1  Overt.  81. 
And  certiorari  cases  are  said  not  to  be  triable  at  the  first  term,  but  stand  open  to  exception. 
Hamilton  v.  Archer,  1  Overt.  368.  And  where  the  exception  goes  to  the  jurisdiction  of  the 
court,  or  strikes  at  the  remedy,  showing  that  the  plaintiff  is  not  entitled  to  it,  or  that  upon 
Bome  principles  of  law  the  writ  ought  not  to  have  been  allowed,  it  is  never  too  late,  while 
the  matter  is  in  fieri,  for  the  court  to  interpose  and  quash  the  writ,  and  this  maybe  done 
ex  mero  motu,  whenever  they  discover  the  facts  which,  if  known  at  the  application  of  the 
writ,  would  have  induced  a  refusal  of  an  allocatur.  Haines  v.  Campion,  3  Harr.  49.  The 
State  V.  Ten  Eyck,  3  Harr.  373.     The  State  v.  Kingsland,  3  Zab.  N.  J.  Rep.  85. 

Notice  oi  certiorari  must  be  given  by  the  adverse  party;  but  the  necessity  of  process  for 
that  purpose  is  superceded  by  his  coming  in  voluntarily.  Anon,  1  Hayw.  405.  When  notice 
is  given  to  appear  on  the  return  day  of  the  certiorari,  and  the  writ  is  not  then  returned,  nor 
any  proceedings  had  to  continue  it  in  court,  it  is  discontinued,  and  &  procedendo  should  issue. 
Anon.  1  Hayw.  420.  Notice  will  be  ordered  at  any  time  before  two  terms  have  elapsed, 
after  the  certiorari  is  filed.      Williams  v.  Gormon,  2  Hayw.  155. 

In  the  return  of  a  writ  of  certiorari,  it  is  proper  for  the  court  below,  and  indeed  its  duty  to 
state  enough  of  the  proceeding  to  show  that  they  have  jurisdiction,  not  only  of  the  subject- 
matter  of  the  inquiry  and  of  the  person  proceeded  against,  but  also  that  some  proof  was 
made  which  had,  at  least,  a  tendency  to  establish  the  material  allegations  in  issue.  To  this 
extent,  it  is  the  duty  of  the  court  above  to  look  into  the  return.  If  it  appears  that  the  court 
had  no  jurisdiction  of  the  subject-matter,  or  that  there  was  no  evidence  legally  tending  to 
establish  the  main  facts,  which  could  alone  authorize  the  judgment  in  either  case,  in  such 
cases,  the  court  does  not  deliberate  of  evidence,  l)ut  determines  merely  whether  there  is  any 
evidence  whatever.  The  People  v.  Overseers  of  Ontario,  15  Barb.  286.  And  such  testimony 
should  be  returned  as  applies  to  the  question  of  the  jurisdiction  of  the  inferior  tribunal  over 
the  subject-matter,  and  over  the  persons  of  the  parties;  and  that  question  is  properly  ex- 
aminable in  the  court  issuing  the  certiorari.     Tlie  People  \.  Goodwin,  1  Selden,  568. 

The  fact  that  a  proceeding  is  void  for  want  of  authority  or  jurisdiction  in  the  inferior  tri- 
bunal, is  not  a  sufficient  reason  for  refusing  to  remove  it  by  this  writ.  Commonwealth  v. 
Blue  Hill  Turnjnke,  5  Mass,  420.  Hawthorne  y.  M'Guire,  1  Barring.  530.  State  v.  Thompson, 
2  N.  Hamp.  237.  Ex  parte  Hayw.,  10  Pick.  358.  Commonwealth  v.  West  Boston  Bridge,  13 
Pick.  197.  Starr  v.  Trustees  of  Rochester,  6  Wend.  564.  Coicans  Case,  1  Overt.  311.  Jeffers 
V.  Brookfield,  Coxe,  38.  State  v.  Poicnal,  1  Fairf.  24.  Williamson  v.  Carnan,  1  Gill  &  Johns. 
197.  State  v.  Huntingdon,  1  Const.  Rep.  325.  Davis  v.  Mathews,  Charlt.  111.  Herrigas  v. 
M-Gill,  1  Ashm.  152.  Morrison  v.  Wilmington,  ^-c.  Turnpike,  1  Harring.  366  ;  although  a  cer- 
tiorari will  not  issue  to  remove  a  cause  for  trial  above,  merely  from  a  defect  of  jurisdiction  in 
the  court  below.     Fowler  \.  Lindsay,  3  Dall.  411. 

By  the  common  law,  writs  of  certiorari  removed  only  the  record  or  proceedings  in  the 
nature  of  a  record,  or  of  an  officer  or  of  courts  of  limited  jurisdiction,  and  the  court  decided 
only  as  to  the  jurisdiction  and  regularity  of  the  proceedings ;  but  in  New  York,  under  sec- 
tion 47  of  2  Revised  Statutes,  a  writ  of  certiorari  gives  power  to  examine  and  correct  errone- 
ous decisions  of  questions  of  fact.  3Jorewood  v.  Hollister,  2  Selden,  309.  In  order  to  bring 
the  facts  before  the  court,  if  no  state  of  the  case  can  be  agreed  on,  the  proper  practice  is,  in 
the  first  instance,  to  call  on  the  court  below  to  certify  what  the  facts  are.  Their  return  is 
conclusive.  Scott  v.  Beatty,  3  Zabr.  N.  J.  256.  And  if  the  court  below  fail  to  make  a  return 
of  the  facts,  resort  may  then  be  had  to  affidavits.  lb.  And  when  the  return  does  not  show 
that  the  whole  of  the  testimony  has  been  returned,  it  will  be  presumed  there  was  evi- 
dence in  the  court  below  to  sustain  the  finding  of  the  jury,  or  of  the  court,  as  the  case  maj 


FROM  INFERIOR  COURTS.  398 

though  the  cause  cannot  be  ilcterminetl  in  the  court  above,  yet  this  Avrit 
may  be  granted,  if  the  inferior  court  have  no  jurisdiction  over  it,  or  do 
not  proceed  therein  according  to  the  rules  of  the  common  law.(i;')  But  if 
the  inferior  court  have  jurisdiction,  and  the  court  above  have  not,  a  c«r- 
tio7-a7'i  cannot  be  liad  ;  as  Avhere  an  action  is  brought  in  London,  for  calling 
a  woman  whore, (/r)  or  upon  a  custom  or  bye-law  wliich  is  only  suable  in 
the  inferior  court, (Z)  A  certiorari  also  lies,  to  remove  a  cause  from  the 
court  of  the  isle  of  Ely ;{m)  or  from  the  Cinque  'ports,{ii)  or  other  exempt 
jurisdiction.  And  even  in  the  case  of  a  customary  proceeding  by  foreign 
attachment,  if  the  defendant  cannot  find  bail  below,  he  may  sue 
out  a  ^certiorari ;  and  upon  putting  in  bail  in  the  court  above,  [  '399  ] 
the  cause  shall  go  on  there. (a)  But  a  certiorari  lies  not  in 
general,  where  the  debt  or  damages  appear  to  be  under /or^^  shillings  :(5) 
though  the  court  of  King's  Bench  refused  to  quash  a  certiorari  upon  this 
ground,  in  an  action  for  an  assault  brought  against  excise  officers,  who 
could  not  have  had  an  impartial  trial  in  the  inferior  court.(cc) 

It  seems  to  have  been  formerly  holden,  that  no  certiorari  lay  to 
Wale8,[dd)  or  a  county  palatine^  in  civil  cases  :(cc)  and  it  cannot  now  be 
had  as  a  matter  of  course  '-{ff)  nor  unless  a  special  ground  be  laid,  as  that 
the  case  strongly  calls  for  a  trial  at  hd,v.{(jg)  And  where  a  certiorari 
issued,  to  remove  a  cause  from  the  court  of  Great  Sessions  in  Wales,  with- 
out any  special  ground  for  so  doing,  and  without  any  notice  having  been 
given  to  the  opposite  party,  but  was  not  delivered  to  the  judges  of  that 
court,  till  the  day  before  the  trial  would  in  course  have  taken  place,  and 
after  great  expenses  had  been  incurred  ;  the  court  of  King's  Bench,  under 
these  circumstances,  not  only  quashed  the  certiorari,  and  directed  a  |)ro- 
cedendo  to  issue,  but  ordered  that  the  party  who  issued  it,  should  pay  to 
the  opposite  party,  the  costs  incurred  by  the  latter  in  the  court  below, 
togetjier  with  the  costs  of  the  application. (/<)  By  the  statute  1  Geo.  IV. 
c.  87,  §  5,  "  it  shall  not  be  lawful  for  the  defendant  to  remove  any  action 
of  ejectment,  commenced  by  a  landlord  under  the  provisions  of  that  act, 
from  any  of  the  courts  of  Great  Session  in  Wales,  to  be  tried  in  an  English 
county,  unless  such  court  of  Great  Session  shall  be  of  opinion  that  the  same 


I 


(t)  1  Lil.P.  R.  253.  {k)  2  Rol.  Abr.  69.    Carth.  75. 

\l)  1  Salk.  352.  6  Mod.  1V7,  S.  C.  Say.  Rep.  15G.  2  Bur.  777,  8.  2  Blac.  Rep.  lOGO.  2 
Bos.  &  Pul.  93  ;  and  see  5  Barn.  &  Aid.  821.    1  Dowl.  k  Ryl.  537. 

(w)  1  Salk.  148.  2  Ld.  Raym.  836.  7  Mod.  138,  S.  C.  Williams  v.  Thomas,  E.  22  Geo.  III. 
K.  B.,  cited  in  Doug.  751,  (y).  But  in  the  Common  Pleas,  when  the  writ  is  directed  to  the 
court  of  Pleas  of  the  Bishop  of  Ely,  it  should  be  indorsed  with  the  words  Isle  of  Ely,  before 
it  is  sealed.     R.  E.  13  W.  III.  C.  P. ;  and  see  3  East,  128. 

{n)  1  Lil.  P.  R.  253,  257. 

(a)  1  Salk.  148.    2  Ld.  Raym.  837.    7  Mod.  138,  S.  C. 

(6)  Brownl.  Brcv.  Jud.  140.    2  Browul.  82.    Moyle,  G9,    Clift,  374. 

(cc)  4  Durnf.  &  East,  499. 

\dd)  Gilb.  E.xcc.  202.  Williams  v.  Thomas,  E.  22  Geo.  III.  K.  B.,  cited  in  Doug.  751,  {v) ; 
and  see  2  Ken.  370,  440. 

Ue)  Gilb.  Exec.  201. 

(/)  Doug.  749.    Williams  X.  Thomas,  E.  22  Geo.  III.  K.  B.,  cited  in  Doug.  751,  («). 

\gg)  Id.  ihid.  Append.  Chap.  XVI.  ^  6. 

(A)  1  Barn.  &  Cres.  143  ;  and  see  13  Price,  449. 

be.  Snow  v.  Perkins,  2  Mich.  (Gibbs,)  238.  The  granting  of  a  certiorari,  operates  as  a  super- 
tedeas  to  further  proceedings  on  the  record,  which  it  brings  up  for  review ;  but  it  does  not 
revoke  a  judgment  executed  or  in  process  of  execution.  The  power  of  this  writ  cannot  be 
extended  by  a  special  order  of  the  judge  of  the  superior  court.  Mayor,  tjc,  of  Macon  v.  Shaa, 
14  Geo.  162. 


399 


OF  THE  REMOVAL  OF  CAUSES 


ou^lit  to  be  SO  removed,  upon  special  application  to  the  court  for  that 
purpose."  And,  by  the  statute  5  Geo.  IV.  c.  106,  §  23,  "no  writ  of 
certiorari  shall  be  granted,  issued  forth,  or  allowed,  to  remove  any  action, 
bill,  plaint,  cause,  suit,  or  other  proceeding  at  law  whatsoever,  originated 
in  or  commenced,  carried  on,  or  had,  in  any  of  his  majesty's  courts  of 
Great  Sessions  in  Wales,  unless  it  be  duly  proved  upon  oath,  that  the  party 
or  parties,  suing  forth  the  same,  hath  or  have  given  seven  days'  notice 
thereof  in  writing,  to  the  other  party  or  parties  concerned  in  the  action, 
&c.,  sought  to  be  so  removed  ;  and  unless  the  party  or  parties  so  applying, 
or  suing  forth  such  writ,  shall,  upon  oath,  show  to  the  court,  in  which 
application  shall  be  made,  sufficient  cause  for  issuing  such  writ ;  and  so 
that  the  party  or  parties  therein  concerned,  may  have  an  opportunity  to 
show  cause,  if  he  or  they  shall  so  think  fit,  against  the  issuing  or  granting 
such  certiorari;  and  that  the  costs  of  such  application  be  in  the  discretion 
of  the  court,  wherein  such  application  shall  be  made  for  such  certiorari." 
The  court  of  King's  Bench  would  not  grant  a  certiorari,  to  remove  pro- 
ceedings in  quare  impedit,  from  the  court  of  Great  Session  at 
[  *400  ]  Chester,  into  the  King's  Bench,  where  a  special  verdict  was  *ex- 
pected  to  be  found ;  the  proper  course  being,  to  remove  the 
special  verdict,  when  found,  into  the  latter  court,  by  writ  of  error. (a) 
And  a  plaint  in  replevin  cannot  be  removed  from  a  county  court  in  Wales, 
into  the  King's  Bench,  by  certiorari.{h) 

In  criininal  cases,  a  certiorari  always  lies,  unless  it  be  expressly  taken 
away  ;(c)  but  an  appeal  never  lies,  unless  it  be  expressly  given  by  the 
statute,  (c)  A  certiorari  is  granted  of  course,  on  the  application  of  the 
crown :  but  when  a  defendant  applies  for  it,  he  must  lay  some  ground 
before  the  court,  supported  by  affidavit. ((Z)  And  the  court  of  King's 
Bench  may  grant  a  certiorari,  to  remove  an  indictment  for  a  misdemeanor, 
from  the  Great  Sessions  in  Wales,  into  this  court. (e)  But  the  court  refused 
a  certiorari,  to  remove  an  indictment  for  a  misdemeanor,  and  proceedings 
thereon  at  the  assizes,  after  conviction  and  before  judgment ;  which  was 
prayed  for  the  purpose  of  applying  for  a  new  trial,  on  the  judge's  refusal 
of  the  evidence,  on  the  ground  of  the  verdict  being  against  evidence,  and 
the  judge's  direction. (/)  On  moving  for  a  rule  nisi  for  a  certiorari^  to 
remove  an  order  of  sessions,  it  is  irregular  to  entitle  the  affidavits  in  any 
cause  ;  and  if  they  are  entitled,  they  cannot  be  read.(^) 

After  judgment,  a  certiorari  does  not  in  general  lie,  to  remove  a  cause 
from  an  inferior  court;(7i)  and  therefore  if  it  be  returned  thereon,  that  the 
defendant  is  condemned  by  judgment,  he  shall  be  remanded,  and  continue 
in  prison,  without  being  let  to  bail  against  the  will  of  the  plaintiff,  until 
agreement  be  made  with  him  of  the  sum  adjudged. (2)  So,  where,  in  an 
action  for  sixteen  pounds,  brought  in  the  forest  court  of  Knareshoroughy 
the  defendant  suffered  judgment  by  default,  and  afterwards  sued  out  a 
certiorari,  to  remove  the  cause  into  the  King's  Bench ;  the  latter  court 
held,  that  the  certiorari  was  too  late,  and  made  a  rule  for  a  procedendo 


a)  6  Dowl.  &  Ryl.  489.  [b)  5  Barn.  &  Cres.  206.  7  Dowl.  &  Ryl.  T09,  S.  C. 

*c)  3  Dowl.  &  Ryl.  35  ;  and  see  id.  275,  301.    2  Barn.  &  Cres.  228.    3  Dowl.  &  Ryl.  306, 

C.    8  Dowl.  &  Ryl.  117. 

Vi)  2  Durnf.  &  East,  89.  {e)  3  Durnf.  &  East,  658. 

7)  13  East,  411 ;  and  see  2  Ken.  370,  440. 

g)  1  Barn.  &  Cres.  267. 

h)  7  Dowl.  &  Ryl.  769. 

i)  Stat.  2  Hen.  V.  st.  1,  c.  2.     Year  Book,  9  Hen.  VI.  8. 


FROM  INFERIOR  COURTS.  400 

absolute,  altliougli  the  defendant,  in  opposition  to  that  rule,  swore  that 
the  jurisdiction  of  the  inferior  court  was  limited  to  five  pounds.(//)  But 
if  a  defendant  in  execution  have  an  action  depending  against  him  in  the 
court  below,  this,  being  returned,  will  be  a  cause  of  detainer  in  the  court 
above :  And  in  cases  of  absolute  necessity,  as  where  the  inferior  court 
refuses  to  award  execution,(/f)  the  court  above  will  grant  a  certiorari  after 
judgment,  for  the  sake  of  doing  justice  between  the  parties.  So,  where 
the  inferior  court  acts  in  a  summary  method,  or  in  a  new  course  different 
from  the  common  law,  a  certiorari  lies  after  judgment;  though  a  writ  of 
error  docs  not.(^) 

If  the  judgment  of  an  inferior  court  be  removed  into  the  King's  Bench 
be  certiorari,  and  the  party  sue  a  scire  facias  to  have  execution 
upon  such  *judgment,  he  ought  to  show  in  his  scire  facias,  that  [  *401  ] 
it  is  the  judgment  of  an  inferior  court,  removed  hither  by  certi- 
orari, and  to  point  out  the  particular  limits  of  the  inferior  jurisdiction, 
and  pray  execution  within  those  limits:  But  if  the  judgment  be  removed 
into  the  King's  Bench  by  writ  of  error,  and  affirmed,  the  party  may  have 
execution  in  any  part  of  England  ;  for  by  the  affirmance  it  is  become  the 
judgment  of  the  King's  Bench. (<7.)  And  now  by  the  statute  19  Geo.  III. 
c.  70,  §  4,  reciting  that  persons  served  with  process  issuing  out  of  inferior 
courts,  where  the  debt  is  under  ten  pounds,  (since  extended  to  twenty 
pounds,  by  the  statute  7  &  8  Geo.  IV.  c.  71,  §  6,)  may,  in  order  to  avoid 
execution,  remove  their  persons  and  effects  beyond  the  limits  of  the  juris- 
diction of  such  courts ;  it  is  enacted,  that  "in  all  cases  where  final  judg- 
ment shall  be  obtained  in  any  action  or  suit,  in  any  inferior  court  of 
record,  it  shall  and  may  be  lawful  to  and  for  any  of  his  majesty's  courts 
of  record  n,t  West  minster,  upon  affidavit  made  and  filed  of  such  judgment 
being  obtained,  and  of  diligent  search  and  inquiry  having  been  made  after 
the  person  of  the  defendant  or  his  effects,  and  of  execution  having  issued 
against  such  person  or  effects,  and  that  they  are  not  to  be  found  within 
the  jurisdiction  of  the  inferior  court,  to  cause  the  record  of  the  said  judg- 
ment to  be  removed  into  such  superior  court,  and  to  issue  writs  of  execu- 
tion thereupon,  to  the  sheriff  of  any  county  or  place,  against  the  defend- 
ant's person  or  effects,  in  the  same  manner  as  upon  judgments  obtained 
in  the  said  courts  at  Westminster :"  Which  provision  is  extended,  b'y  a 
subsequent  statute,(6)  to  the  courts  inWales,  and  the  counties  palatine: 
but  from  these  courts,  a  transcript  of  the  record  is  to  be  removed,  and  not 
the  record  itself;  and  the  latter  act  extends  to  all  judgments,  for  the 
defendant  as  well  as  the  plaintiff.  In  a  case  arising  upon  the  former  of 
these  statutes,  where  a  judgment  was  signed  against  a  defendant  in  an 
inferior  court  of  record,  and  he  surrendered  in  discharge  of  his  bail,  but, 
before  he  was  charged  in  execution,  he  was  removed  to  the  Fleet  by 
habeas  corpus;  the  court  of  Common  Pleas  determined,  that  a  certiorari 
might  be  granted  to  remove  the  record,  in  order  to  charge  him  in  cxecu- 

(h)   1  Powl.  k  Ryl.  YG9. 

(A;)  1  Lil.  P.  R.  252,  3. 

(l)  1  Salk.  2G3  ;  and  see  9  Moore,  649.  2  Bing.  344,  S.  C.  10  Mooro,  32.  Id.  171.  2 
Bing.  463,  S.C. 

(a)  1  Ld.  Ravm.  216.  3  Salk.  320.  Carth.  391,  S.  C. ;  and  sco  3  Duriif.  &  East,  657  ;  but 
seeF.N.  B.  242,C.  Gilb.  Repl.  117. 

(6)  33  Geo.  III.  c.  68,  g  1.  And  for  the  forma  of  writs  of  certiorari  and  proceedings  on  this 
Btatnte,  see  Append.  Chap.  XVI.  ?  10,  &c.  See  also  stnt.  5  Geo.  IV.  c.  106,  ?  15,  for  enforcing 
obedience  to  rules,  orders,  and  decrees  of  the  courts  of  Great  Sessions  in  Wales,  against  per- 
sons residing  out  of  the  jurisdiction,  by  process  from  the  courts  at  Westminster. 


401 


OF  THE  REMOVAL  OF  CAUSES 


tion  in  the  Fleet,  on  the  ground  that  although  the  ease  of  a  prisoner  in 
actual  custody  be  not  within  the  express  terms,  yet  it  is  "within  the  equity 
of  the  statute. (c)  But  the  statute  19  Geo.  III.  c.  70,  §  4,  is  confined  to 
suits  in  inferior  courts,  where  the  proceedings  are  similar  to  those  in 
the  superior  courts;  and  therefore  docs  not  extend  to  the  case  of  a  foreign 
attachment. (cZ)  And  a  certm^ari,  Ave  have  seen,(e)  will  not  lie,  to  remove 
the  record  of  a  judgment  obtained  against  a  defendant  in  the 
[  *402  ]  county  palatine  of  I)urham,  for  the  *purpose  of  enabling  his 
bail  to  render  him  in  the  court  of  King's  Bench,  though  he  be  a 
prisoner  for  debt  in  the  custody  of  the  marshal. (a) 

As  persons  served  with  process  issuing  out  of  courts  of  requests  may,  in 
order  to  avoid  execution,  remove  their  persons  and  effects  beyond  the 
limits  of  the  jurisdiction  of  the  said  courts,  there  is  a  clause  in  the  court 
of  requests  act  for  the  city  of  Bath,{h)  &c.  that  "  in  all  cases  where  a  final 
decree  of  judgment  for  any  sum  or  sums  exceeding  ten  shillings,  shall  have 
been  obtained  in  the  said  court,  it  shall  and  may  be  lawful  to  and  for  any 
of  his  majesty's  courts  of  record  at  Westminster^  upon  affidavit  made  and 
filed  of  such  decree  or  judgment  being  obtained,  and  of  diligent  search 
and  inquiry  having  been  made  after  the  person  or  persons  of  the  defend- 
ant or  defendants,  or  his  her  or  their  goods  and  chattels ;  and  of  the  pre- 
cept of  execution  having  issued  against  the  person  or  persons,  or  effects, 
as  the  case  may  be,  of  the  defendant  or  defendants ;  and  that  the  person 
or  persons,  goods  and  chattels,  of  such  defendant  or  defendants  is  or  are 
not  to  be  found  within  the  jurisdiction  of  the  said  court,  (which  affidavit 
may  be  made  before  a  judge  or  commissioner  authorized  to  take  affida- 
vits,) it  shall  and  may  be  lawful  to  and  for  such  superior  court,  to  cause  the 
record  of  the  said  decree  or  judgment  to  be  removed  into  such  superior  court, 
and  to  issue  writs  of  execution  thereupon,  to  the  sheriff  of  any  county,  city, 
liberty  or  place,  against  the  person  or  persons,  or  effects,  of  the  defend- 
ant or  defendants,  in  the  same  manner  as  upon  judgments  obtained  in 
the  said  courts  at  Westminster ;  and  the  sheriff,  upon  every  such  execu- 
tion shall,  and  he  is  thereby  authorized  to  detain  the  defendant  or  de- 
fendants, until  the  sum  of  ten  shillings  be  paid  to  him,  or  to  levy  the  same 
out  of  the  effects,  according  to  the  nature  of  the  execution,  for  the  extra- 
ordinary costs  of  the  plaintiff  or  plaintiffs  in  the  said  court,  subsequent  to 
the  said  decree  or  judgment,  and  of  the  execution  in  the  superior  court, 
over  and  above  the  money  for  which  such  execution  shall  be  issued."  And 
there  are  similar  clauses,  in  the  court  of  requests  acts  for  other  populous 
districts ;  as  for  the  town  and  borough  of  Grimshy,  and  the  liberties  thereof, 
and  the  several  parishes  and  places  in  the  hundred  or  wapentake  o^  Bradley, 
Haverstoe,  and  the  east  division  of  the  hundred  or  wapentake  of  Yarborough, 
in  the  county  of  Lincoln  ;(cc)  the  hundred  oi  Elloe,  and  parishes  of  Surfleet 
and  Gosberton,  in  the  hundred  of  Kirton  ;{dd)  the  borough  and  parish  of 
Boston,  and  hundreds  of  Skirbeeh  and  Kirton,  (except  the  parishes  of  Gos- 
berton  and  Surfleet  ;){ee)  and  the  sokes  of  Bolingbrooke  and  Horncastle, 
and  other  places  in  the  same  county  ;(/)  the  Isle  of  Wight,  in  the  county 

(c)  1  H.  Blac.  532,  3. 

\d)  5  Barn.  &  Aid.  821.     1  Dowl.  &  RyL  SST,  S.  C.  (e)  Ante,  286. 

(a)  2  Dowl.  &Ryl.  177. 

(6)  Stat.  45  Geo.  IIL  c.  Ixvii.  ?  27. 

{cc)  Stat.  46  Geo.  IIL  c.  xxxvii.  §  22. 

{dd)  Stat.  47  Geo.  III.  sess.  1,  c.  xxxvii.  |  23. 

(ee)  M  sess.  2,  c.  i.  ^  24.  (/)  M  c.  IxxviiL  §  31.  ] 


FROM  INFERIOR  COURTS.  402 

of  Southampton  ;((/)  tlie  townships  of  Stockport  and  Brinriington,  and 
hamlets  of  ^(Z^(7//  and  Brinksway,  in  the  count j  palatine  of  CHESTER  ;(/<) 
the  town  and  liberties  of  Beverley,  in  the  county  of  YoRK  \{i) 
the  town  and  *port  of  Sandwich,  and  vills  of  Jianwjatc  and  [  *403  ] 
Sarr,  and  several  parishes,  in  the  county  of  KENT;(a)  the 
parishes  of  Saint  John  the  Baptist,  Saint  I'vicr  the  Apostle,  and  Birch- 
ington,  and  the  vill  of  Wood,  in  the  Isle  of  Thanet  ;{!>)  the  town  of 
Gravesend,  and  hundreds  of  Toltimjtrongh,  Dartford,  Wilmington,  and 
Axtane;{c)  and  the  hundred  of  Codsheath,  and  other  places,  in  the  same 
county  •,{d)  the  parishes  of  Hides  Owen,  Itowley  Jiegis,  West  Bromwich, 
Tipton,  and  manor  of  Bradley,  in  the  counties  of  Worcester,  Salop, 
and  Stafford  ;(c'<;)  the  township  of  Wolverhampton,  and  other  places, 
in  the  latter  county ;( f)  the  town  and  borough  of  Ipswich,  in  the  county 
of  Suffolk  ;(,(/^)  and  the  parish  of  Manchester,  in  the  county  palatine  of 

LANCASTER.(/iA) 

The  writ  of  certiorari  should  be  directed  to  the  judge  or  judges  of  the 
inferior  court,  from  which  the  cause  is  intended  to  be  removed  ;  and  when 
it  is  for  the  removal  of  a  cause,  should  command  them  to  certify  the  record, 
with  all  things  touching  the  same  :{ii)  therefore,  where  a  certiorari  in  such 
case  was  to  certify  the  tenor  of  a  record,  it  was  superseded  as  erroneous ; 
for  being  to  remove  a  record  out  of  an  inferior  court,  in  order  to  be  pro- 
ceeded on  in  a  superior  one,  it  ought  to  have  been  to  certify  the  very 
record;  for  otherwise  no  proceeding  could  be  had  upon  it.(^)  ^^  hen  the 
certiorari  issues  out  of  Chancery,  it  is  an  original  writ,  and  may  be  tested 
at  any  time  in  term  or  vacation  ;(Z)  and  should  be  made  returnable  on  a 
general  return-day:  But  when  it  issues  out  of  the  King's  Bench  or  Com- 
mon Pleas,  it  is  a.  judicial  writ,  and  should  be  tested  in  term-time ;_  and, 
in  the  King's  Bench,  it  is  usually  made  returnable  on  a  day  certain  in 
court.(m)  If  the  Avrit  be  mis-directed,(7?)  or  otherwise  bad  in  point  of 
law,  the  court  will  order  it  to  be  quashed,  if  before  them  ;  or  if  not 
returned,  will  grant  a  su])ersedeas.{o)  But  the  court  cannot  quash  a  writ 
that  is  not  before  them  :(o)  And  though  the  parties  to  whom  the  certiorari 
is  directed,  and  in  whose  keeping  the  record  is,  may  object  to  make  a 
return  of  it  on  account  of  an  informality  in  the  direction,  yet  they  having 
in  fact  returned  it  into  the  court  above,  no  such  objection  can  be  taken  by 
third  persons.(^) 

The  writ  of  certiorari,  we  have  seen,(^)  lies  for  the  removal  of  all 
causes  from  inferior  courts,  whether  the  defendant  has  been  proceeded 
against  therein  by  capias,  or  other  process  :  But  the  writ  of  habeas  corpus, 
•which  will  next  be  considered,  only  lies  where  the  defendant  has  been 
arrested  upon,  or  served  with  a  copy  of  a  capias,  and  either 
remains  in  custody,  or  *has  given  bail.(rta)  This  latter  writ,  [  *404  ] 
though  its  direct  object  be  to  bring  up  the  body  of  the  defendant, 

(ff)  Stat.  46  Geo.  III.  c.  l.xvi.  §  22.  (h)  Id.  c.  cxir.  ?  26.  (?)  /'/.  c.  cxxxv.  J  24. 

(a)  Stat.  47  Geo.  lU.  sess.  1,  c.  xxxv.  §  29.  (6)  Id.  scss.  2,  c.  vii.  §  24. 

(c)  /(/.  c.  xl.  ?  27.  (rf)  Stnt.  48  Geo.  IH.  c.  i.  §  30. 

(ee)  Stat.  47  Geo.  III.  sess.  1,  c.  xxxvi.  §  26.         {/)  Stat.  48  Geo.  III.  c.  ex.  g  34. 
(Off)  Stat.  47  Geo.  III.  sess.  2,  c.  Ixxix.  |  26.         (hh)  Stat.  48  Geo.  IH.  c.  xliii.  ?  33. 
lii)  Append.  Chap.  XVI.  §  1,  &c.  (k)  2  Atk.317;  and  seel  Madd.  Chan.  12. 

(I)  Trye,  10.  (m)  Thea.Brev.  67,  8.     Append.  Chap.  XVI.  ?  1,  &c. 

(n)  2  Atk.  318,  19.  (o)  /(i.  318  ;  and  see  Say.  Rep.  156. 

\p\  A  Durnf.  &  East,  499.  \q)  Ante,  308. 

(aa)  1  Barn.  &  Cres.  513.     2  Dowl.  &  Ryl.  722,  S.  C.     4  Barn,  k  Cres.  401.     6  Dowl. 
Ryl.  497,  S.  C. 


404  OF  THE  REMOVAL  OF  CAUSES 

serves  consequentially  to  remove  causes  against  him  from  inferior  courts: 
And  the  ground  of  removal  upon  this  writ  is,  that  when  a  defendant, 
against  whom  thcro  is  a  cause  depending  in  an  inferior  court,  is  removed 
by  habeas  corpus  into  the  court  above,  the  inferior  court  have  lost  their 
jurisdiction  over  him;  and  not  having  jurisdiction  over  his  person,  they 
cannot  proceed  in  the  cause,  and  the  bail,  if  any,  in  the  inferior  court  are 
discharged. (5)  But  this  writ  only  lies  for  the  defendant,  and  cannot  be 
had  by  the  j^laintiff,  to  remove  his  own  cause  from  an  inferior  court. (<?) 

The  writ  of  habeas  corpus,  of  which  something  has  been  already  said,(d) 
as  it  is  used  to  remove  prisoners  into  the  custody  of  the  marshal  of  the 
King's  Bench  or  warden  of  the  Fleet  prison,  is  a  judicial  writ  issuing  out 
of  the  court  of  King's  Bench  or  Common  Pleas :  and,  like  the  certiorari, 
should  be  directed  to  the  judge  or  judges  of  the  inferior  court,  in  which 
the  record  is  ;(e)  commanding  them  to  have  the  body  of  the  defendant, 
together  with  the  day  and  cause  of  his  being  taken  and  detained,  to  do 
and  receive,(/)  &c.  There  is  an  old  rule  of  court,((/)  by  which  the  habeas 
corpus,  when  directed  to  the  inferior  courts  of  Lo7idon,  Westminster, 
Southwark,  and  other  courts  within  five  miles  of  London,  might  have 
hQQn  reiMmohXQ  immediate ;  but  otherwise  it  must  have  been  returnable 
on  a  day  certain  in  court.(^)  The  rule  however  having  fallen  into  dis- 
use, the  writ  we  have  seen,(7i)  is  now  always  made  returnable  immediate. 

The  writ  of  certiorari  or  habeas  corpus,  when  delivered  to  the  judge  or 
judges  of  the  court  below,  instantly  suspends  their  power ;  so  that  if 
they  afterwards  proceed,  it  is  a  contempt,  for  which  they  are  liable  to  an 
attachment ;  and  the  subsequent  proceedings  are  void,  and  coram  non 
judice.{i)\_A\  On  receipt  of  the  writ  therefore,  it  should  be  forthwith 
allowed  and  returned;  and  the  officer  cannot  refuse  to  obey  it,  under  pre- 
tence of  not  being  paid  his  fees  in  the  court  below,  or  the  charges  of 
bringing  up  the  *defendant  :(a)  for  the  former,  he  has  a  proper 
[  *405  ]  remedy  by  action ;  and  for  the  latter,  if  not  paid,  the  defend- 
ant may  be  remanded. (55) 

It  was  formerly  usual  for  the  defendant  in  an  inferior  court  to  sue  out  a 
writ  of  certiorari  or  habeas  corpus,  and  keep  it  in  his  pocket,  without  pro- 
ducing it,  till  issue  was  joined,  the  jury  sworn,  and  the  plaintiff  had  given 
his  evidence ;  by  which  means  the  plaintiflF  was  not  only  put  to  considerable 
expense,  but  the  defendant ;  knowing  before-hand  what  proofs  he  could  pro- 

{b)  Skin.  244,  5.  And  see  3  Bac.  Abr.  15.  3  Maule  &  Sel.  328,  in  which  latter  case  it 
■was  holden,  that  upon  the  removal  of  a  cause  by  certiorari,  out  of  an  inferior  court,  th« 
pledges  below  are  discharged,  by  putting  in  and  perfecting  bail  above:  and  the  distinction 
seems  to  be,  that  when  Va&  plaintiff  r^vaov^s  the  cause,  the  bail  are  immediately  discharged  ; 
but  when  the  defendant  removes  it,  they  are  not  discharged,  until  bail  above  be  put  in  and 
perfected.     Id.  330,  per  Bayley,  J. 

(c)  Cas.  Pr.  C.  P.  5.     Pr.  Reg.  216.     Ante,  350.  {d)  Ante,  347,  &c. 

(e)  For  the  direction  of  the  writ  of  habeas  corpus  in  particular  cases,  see  Append.  Chap. 
XVI.  §  18. 

(/)  Append.  Chap.  XVI.  I  16. 

lo)  R.  M.  1654,  ?i  8,  K.  B.;  and  see  R.  M.  1654,  |  11.     R.  H.  13  &  14  Car.  II.  C.  P. 

(A)  Ante,  349. 

(i)  Bro.  Abr.  tit.  Cause  de  remover  plea,  pi.  48.  1  Salk.  148,  9.  2  Ld.  Raym.  83T,  8,  S.  C. 
Gilb.  Exec.  144,  200,  202.  Gilb.  Repl.  117.  Doug.  749,  as  to  the  writ  oi  certiorari ;  and  Cro. 
Car.  261.  1  Mod.  195.  T.  Jon.  209.  3  Mod.  85.  Skin.  244.  1  Salk.  148,  352.  6  Mod. 
177,  S.  C,  as  to  the  writ  of  habeas  corpus. 

(a)  2  Str.  814.     2  Bur.  1152  ;  and  see  Pr.  Reg.  219.     1  H.  Blac.  105. 

(bb)  1  Str.  308.     2  Str.  1262. 


[a]  See  note  [a]  ante,  page  398. 


FROM  INFERIOR  COURTS.  405 

duce,  had  an  opportunity  of  opposing  them  by  false  witnesses. (cc)  To 
remedy  this  mischief,  it  was  enacted  by  the  statute  43  Eliz.  c.  5,  that  "no 
writ  of  habeas  corpus,  or  other  writ,  to  remove  any  cause  depending  in  an 
inferior  court  having  jurisdiction  tliereof,  shall  be  received  or  allowed  by 
the  judges  or  officers  of  such  court,  but  they  may  proceed  therein  as  if 
no  such  Avrit  were  sued  forth  or  delivered,  except  the  said  writ  be  delivered 
to  such  judges  or  officers,  before  the  jury  have  appeared,  and  one  of  them 
is  sworn."  And  still  further  to  avoid  vexatious  delays,  by  the  removal  of 
causes  out  of  inferior  courts,  it  was  enacted  by  the  statute  21  Jac.  I.  c. 
23,  §  2,  that  "no  writ  of  habeas  corpus,  certiorari,  or  other  writ,  except 
writs  of  error  or  attaint,  to  stay  or  remove  any  cause  depending  in  an  infe- 
rior court  of  record,  having  jurisdiction  thereof,  where  the  same  arises 
within  its  jurisdiction,  shall  be  received  or  allowed  by  the  judges  or  officers 
of  such  court,  but  they  may  proceed  therein,  &c.  except  the  said  writ  be 
delivered  to  such  judges  or  officers,  before  issue  or  demurrer  ]o'mQ(\.  in  the 
said  cause;  so  as  the  same  be  not  joined  within  six  weeks  next  after  the 
arrest,  or  appearance  of  the  defendant."  This  statute  is  confined  to  infe- 
rior courts  of  record ;  and  does  not  extend  the  case  of  an  interlocutory 
judgment:  therefore,  the  practice  in  that  case  is  to  allow  the  habeas  cor- 
pus or  certiorari,  in  like  manner  as  upon  the  43  Eliz.,  provided  it  be 
delivered  at  any  time  before  the  jury  are  sworn  ',{d)  which  is  also  the  prac- 
tice, where  issue  is  joined  within  six  weeks  next  after  the  defendant's 
arrest  or  appearance. 

By  the  statute  21  Jac.  Ij  c.  23, (e)  it  is  further  provided,  that  "if  in  any 
cause,  not  concerning  freehold  or  inheritance,  or  title  of  land  lease  or 
rent,  commenced  or  depending  in  any  such  inferior  court  of  record,  it 
shall  appear  or  be  laid  in  the  declaration,  that  the  debt  damages  or  things 
demanded  do  not  amount  to  or  exceed  the  sum  of /ye  pounds,  then  such 
cause  shall  not  be  stayed  or  removed  by  any  writ  or  writs  whatsoever, 
other  than  writs  of  error  or  attaint :  And  if  any  writ  or  writs  shall  be 
granted  or  sued  forth  contrary  to  the  intent  and  meaning  of  this  act,  the 
judges  of  the  inferior  court  may  disallow  and  refuse  the  same,  and  pro- 
ceed as  if  no  such  writ  had  been  granted  or  sued  forth:  pro- 
vided *there  be  an  utter  barrister  of  three  years  standing  at  the  [  *406  ] 
bar  of  one  of  the  four  inns  of  court,  steward  or  under-steward, 
town-clerk,  judge  or  recorder  of  such  inferior  court,  or  assistant  to  the 
judge  or  judges  of  the  same,  who  is  not  an  utter  barrister  of  that  stand- 
ing, there  present,  and  not  of  counsel  in  any  action  or  suit  there  dcpeud- 
ing."(a)  If  this  proviso  be  not  complied  with,  the  cause  may  be  removed 
at  any  time:(6)  and  the  court  will  not  grant  a  ]r)'ocedejido,  where  the 
judge  is  a  barrister,  if  he  be  not  present  at  the  trial. (c) 

Soon  after  the  making  of  this  statute,  a  method  was  contrived  of  remov- 
ing causes  for  sums  not  exceeding /yc  pounds,  by  setting  up  an  action  for 
a  fictitious  demand  to  a  larger  amount ;  and  then  upon  suing  out  a  liabeas 
corpus,  all  the  causes  were  removed  together. (J^Z)     To  defeat  this  coutri- 

{^cc)  Soe  the  preamble  to  the  statute  43  Eliz.  c.  5.  But  if  tlie  certiorari  had  been  delivered 
after  the  jury  were  charged  with  the  evidence,  tlie  inferior  court  might  have  proceeded  to  take 
the  verdict,  and  then  certified;  because  the  jury  wore  sworn  to  speak  the  truth,  and  the 
intent  of  the  certiorari  in  such  case  was  not  to  stop  the  trial.     Gilb.  Eiec.  144. 

(rf)  2  Bur.  759;  but  see  Pr.  Reg.  217.  Barnes,  221,  S.  C.  contra.  (0  {  4. 

(a)  g  6.  {b)  Cro.  Car.  79.  3  Mod.  86. 

(c)  1  Bur.  614.  {dd)  Palm.  403. 


40G 


OF  THE  KEMOVAL  OF  CAUSES 


vanco,  it  was  enacted  by  a  subsequent  statute,(t'e)  that  "  the  judges  of  such 
inferior  courts  as  are  dccribed  in  the  statute  of  James,  may  proceed  in 
such  cases  as  are  therein  specified,  which  appear  or  are  laid  not  to  exceed 
the  sum  of  five  pounds,  althou(:^h  there  may  be  other  actions  against  the 
defendant,  -wherein  the  plaintiff's  demands  may  exceed  the  sum  of  five 
pounds."  And  lastly,  by  the  statute  19  Geo.  III.  c.  70,  §  6,  which  takes 
away  the  arrest  under  ten  pounds  in  inferior  courts,  it  is  provided,  that 
*'no  cause,  where  the  cause  of  action  shall  not  amount  to  the  sum  of  ten 
pounds  or  upwards,"  (since  extended  to  twenty  pounds,  by  the  statute  7 
&  8  Geo.  IV.  c.  71,  §  6,)  "shall  be  removed  or  removable  into  any  supe- 
rior court,  by  writ  of  habeas  corpus  or  otherwise,  unless  the  defendant 
shall  enter  into  a  recognizance  to  the  plaintiff,  in  the  inferior  court,  with 
two  sufficient  sureties,  in  double  the  sum  due,  for  the  payment  of  the  debt 
and  costs,  in  case  judgment  shall  pass  against  him."(/)  This  statute  is 
not  confined  to  actions  oi  debt,  or  for  the  recovery  of  liquidated  damages; 
but  extends  to  all  actions  brought  for  the  recovery  of  debts  and  damages, 
under  an  arrestable  sum :  and  therefore,  where  an  action  was  brought  in 
an  inferior  court  for  defamation,  and  the  defendant  after  entering  a  com- 
mon appearance,  and  suffering  judgment  by  default,  removed  the  proceed- 
ings by  certiorari  into  the  King's  Bench,  without  entering  into  any  recog- 
nizance; the  court  held,  that  the  case  was  within  the  statute,  and  awarded 
a  procedendo,  for  the  defendant's  default  in  not  entering  into  the  recogni- 
zance thereby  required,  the  damages  being  laid  under  an  arrestable 
sum.(^)  But  where  an  action  was  brought  in  an  inferior  court  for  8?. 
17s.  3c?.  and  the  damages  were  laid  in  the  declaration  at  20?.  and  the 
defendant  after  interlocutory  judgment  signed  against  him,  removed  the 
cause  into  the  King's  Bench  by  habeas  corpus  cum  causd,  without  entering 
into  the  recognizance  required  by  the  statute  19  Geo.  III.  c.  70,  §  6,  the 
court  refused  to  award  a,  procedendo. {h)  A  similar  recognizance 
[  *407  ]  is  required,  on  the  removal  of  causes  from  any  court  of  inferior 
jurisdiction  into  the  court  of  Common  Pleas  at  Lancaster,  where 
the  cause  of  action  does  not  amount  to  the  sum  of  10?.  or  upwards,  by  the 
statute  34  Geo.  III.  c.  58  §  2.  And  ttvo  days'  notice  exclusive  must  be 
given  of  the  bail,  in  the  court  below,  in  order  that  the  plaintiff  may  have 
an  opportunity  of  inquiring  into  their  sufficiency. (a) 

On  a  certiorari,  the  record  itself  is  returned,  in  the  condition  in  which 
it  was  when  the  writ  came  to  the  court  below  :(?>)  And  this  writ  removes 
all  things  done  in  that  court,  between  the  teste  and  return  of  it.(c)  But 
upon  a  habeas  corjms,  the  record  itself  is  never  removed,  as  it  is  upon  a 
certiorari,  but  remains  below  ;  and  the  return  is  only  an  account  or  history 
of  the  proceedings,  stated  and  sent  up  to  the  superior  court,  to  enable  them 
to  judge  and  determine  the  matter  there.((?)     It  is  not  deemed  a  sufiicient 

(ee)  12  Geo.  I.e.  29,  §  3. 

(/)  For  the  form  of  a  scire  facias,  on  a  recognizance  of  bail  on  this  statute,  see  Append. 
Chap.  XLIII.  §  16. 

(ff)  4  Dowl.  &  Ryl.  350. 

(k)  Id.  362.    2  Barn.  &  Cres.  802,  S.  C. 

(a)  Imp.  K.  B.  10  Ed.  650.    Imp.  C.  P.  7  Ed.  699. 

(b)  Gilb.  Exec.  144,  200.  Gilb.  Repl.  117,  S.  P.  1  Salk.  352.  6  Mod.  177,  S.  C.  2  Ld.  Raym. 
1102.  2Atk.  317.  4  Barn.  &  Cres.  401.  6  Dowl.  &  Ryl.  497,  S.  C.  For  the  forms  of  returns 
of  proceedings  in  a  borough  court,  see  Append.  Chap.  XVI.  §  2 ;  in  the  Mayor's  court  of 
London,  by  foreign  attachment,  id.  ^  4 :  and  in  the  Great  Sessions,  id.  §  15. 

(c)  1  Salk.  149.    2  Ld.  Raym.  838,  S.'c. 

(d)  1  Salk.  352.   6  Mod.  177,  S.  C.   Skin.  244.     And  for  the  form  of  a  return  that  the  de- 


FROM  INFEUrOR  COURTS,  407 

return  to  a  habeas  corpus^  that  before  the  coming  of  the  writ,  tlie  party 
was  bailed;  for  he  is  still  in  custody  in  contemplation  of  law:(t')  And  when 
the  writ  is  disallowed  by  the  inferior  court,  for  any  of  the  causes  before 
mentioned, (/)  it  must  still  bo  returned  to  the  superior  court,  with  the 
special  matter.(//) 

On  the  return  of  the  certiorari  or  habeas  corpus,  if  the  defendant  be  in 
actual  custody  on  mesne  process,  the  court  will  not  discharge  him,  until 
bail  be  put  in  and  perfected  above  ;(/<)  and  therefore,  in  such  case,  the 
usual  way  of  g^iining  the  defendant  his  liberty,  is  to  put  in  and  perfect 
bail  lielow,  before  the  writ  is  brought. (z)  When  the  defendant  is  not  in 
actual  custoily,  at  the  return  of  the  certiorari  or  habeas  corpus,  he  must 
put  in  bail,  if  called  upon,  in  the  court  above  ;  which  bail  is  either  common 
or  special,  as  in  the  court  below. 

Before  the  statute  12  Geo.  I.  c.  29,  every  defendant,  not  being  an  executor 
or  administrator,  must  have  put  in  special  bail  upon  a  certiorari  or  habeas 
corpus,  in  all  actions  whatsoever,  except  actions  for  words,  and  trilling 
assaults,  unless  a  judge  had  otherwise  ordered. (/c)     By  that  statute,  "no 
person  shall  be  holden  to  special  bail,  upon   process  issuing  out  of  an 
inferior  court,  where  the  cause  of  action  shall  not  amount  to  the  sum  of 
fortif  shillings  or  upwards."     And,  by  a  subsequent  statute, (/)  "  no  person 
shall  be  arrested,  or  holden  to  special  bail,  upon  such  process, 
*where  the  cause  of  action  shall  not  amount  to  the  sum  of  ten   [  *408  ] 
pounds  or  upwards."     This  provision  has  been  since  extended, 
by  the  statute  7  &  8  Geo.  IV.  c.  71,  §  6,  to  "  all  actions  in  inferior  courts, 
where  the  cause  of  action  shall  not  amount  to  tioenty  pounds,  exclusive  of 
any  costs,  charges  and  expenses,  that  may  have  been  incurred,  recovered, 
or  become  chargeable,  in  or  about  the  suing  for  or  recovering  the  same,  or 
any  part  thereof:"     Therefore,  at  this  day,  unless  there   be  a  cause  of 
action  to  that  amount,  the  defendant  need  not  put  in  special  bail,  upon  a 
certiorari  or  habeas  corpus,  in  the  court  above :  though,  if  it  be  under  that 
amount,  he  must  enter  into  a  recognizance  with  two  sureties  to  the  plaintiff 
in  the  court  below,  pursuant  to  the  statute  19  Geo.  III.  c.  70,  §  G,{a). 
On  a  recognizance  to  render  in  an  inferior  court,  if  the  proceedings  are 
removed  into  the  King's  Bench  by  writ  of  error,  a  render  in  that  court  has 
been  deemed  a  good  performance  of  the  condition. (6) 

At  the  return  of  the  writ  of  certiorari,{c)  or  habeas  corpus,  the  plaintiff 
should  obtain  a  rule  or  order  from  a  judge,  for  a  procedendo,  unless  the 
defendant  put  in  bail  within /tH«-  days  after  notice  of  the  rule,  if  in  term  ; 
or,  in  vacation,  within  six  days  after  notice  thercof.('Z)  But  it  is  a  rule  in 
the  King's  Bench,  that  "  no  bail  shall  be  put  in  upon  any  writ  of  habeas 
corpus,  before  the  writ  is  returned  ;  and  that  such  bail  shall  not  be  taken 

fendant  was  taken,  &c.,  on  a  plaint  levied  in  the  sherifTs  court  of  London,  see  Append. 
Chap.  XVI J  17. 

(e)  Salmon  .j-  Sladc,  U.  25  k  26  Car.  II.  cited  in  2  Cromp.  3  Ed.  402. 

(/)  Ante,  405,  6. 

Iff)  1  .Mod.  195.  3  Mod.  85.  Carth.  59.  2  Cromp.  3  Ed.  402. 

(A)  R.  .M.  1654,  §  7.  R.  H.  2  Jac.  II.  (a),  K.  B.  R.  M.  1654,  §  10,  C.  P. 

(i)  New  Guide,  Jv.  B.  244. 

(k)  R.  M.  1654,  §  9.  R.  II.  2  &  3  Jac.  II.  K.  B.  R.  M.  1649,  rcj.  2.  R.  M.  1654,  I  12,  C.  P. 
1  Salk.  98,  102. 

{I)  19  Geo.  III.  c.  70,  2  1.  (a)  Ante,  406. 

(b)  1  Str.  49.  (c)  1  Lil.  P.  R.  252. 

(rf)  R.  II.  10  W.  III.  (a),K.  B.;  and  see  R.  M.  1654,  ?  8,  K.  B.  R.  M.  1649,  rey.  2.  R.  M.  1G54, 
{  11,  12.  R.  n.  13  &  14  Car.  II.  0.  P.  Append.  Chap.  XVI.  2  19. 


408 


OF  THE  REMOVAL  OF  CAUSES 


by  any  justice  of  this  court,  unless  that  writ,  -with  the  return  thereof,  shall 
be  offered  before  the  said  justice  to  be  filed,  at  the  time  of  putting  it 
in."(t')  If  a  defendant  be  arrested  by  process  of  the  King's  Bench,  and 
removed  hj  habeas  corjms  to  the  Common  Pleas,  he  may  put  in  and  justify 
bail  in  cither  court.(_^) 

The  bail  upon  a  habeas  corpus  are  taken  on  a  hail-piece,  which  is 
annexed  to  the  writ  and  return,  setting  forth,  in  the  King's  Bench,  that 
the  defendant  is  delivered  to  bail  upon  a  habeas  corpus,  at  the  suit  of  the 
plaintiff  or  plaintiffs  in  the  plaint  ;{g)  in  which  respect  it  differs  from  the 
bail-piece  upon  a  cepi  corpus :  In  the  Common  Pleas,  the  bail-piece  con- 
tains a  short  statement  or  abstract  of  the  habeas  corpus,  with  the  names 
and  additions  of  the  bail,  and  the  sum  sworn  to;  and  in  that  court,  it  is 
filled  up  by  the  clerk  of  the  dockets,  who  attends  one  of  the  judges  to  put 
in  the  bail,  and  to  render  the  principal,  if  necessary.(7i)  When  common 
bail  are  sufficient,  the  bail-piece(z)  should  be  filled  up,  annexed  to  the  habeas 
corpus  and  return,  and  filed  by  the  defendant's  attorney  at  a  judge's 
chambers,  within  the  time  allowed  by  the  rule  ',{k)  and  notice(?)  thereof 

given  to  the  plaintiff's  attorney.  When  special  bail  are  required, 
[  *409  ]   they  may  be  put  *in  at  any  time  pending  the  rule,  before  a  judge 

in  town,  commissioner  in  the  country,  or  judge  of  assize  in  his 
circuit  :{a)  and  they  are  either  absolute,  or  cle  bene  esse,  as  upon  a  cepi 
corrms.ih)  The  recognizance  of  bail,  in  the  King's  Bench,  is  general,  that 
if  the  defendant  be  condemned  at  the  suit  of  the  plaintiff,  (or  plaintiffs)  in 
the  p>laint,  he  shall  satisfy  the  costs  and  condemnation,  or  render  himself 
to  the  custody  of  the  marshal  :(<?)  but,  in  the  Common  Pleas,  it  is  taken 
in  a  penalty  or  sum  certain,  being  double  the  amount  of  the  sum  sworn  to, 
upon  condition  that  the  defendant  do  appear  to  a  new  original,  to  be  filed 
within  two  terms  ;  and  that  if  he  be  condemned  in  the  action,  he  shall  pay 
the  condemnation  money,  or  render  himself  a  prisoner  to  the  Fleet  •,{d)  and 
in  that  court,  on  a  removal  by  habeas  corpus,  the  original  should  it  seems 
be  shown,  upon  tendering  the  declaration  if  insisted  on ;  and  agree  in  the 
nature  of  the  action,  the  sum  in  demand,  and  the  county,  otherwise  the 
bail  are  not  liable. (ge) 

When  special  bail  are  put  in  upon  a  habeas  corpus,  notice  thereof  should 
be  given  in  writing,  before  the  expiration  of  the  rule,  to  the  plaintiff's 
attorney ;(/)  who  is  allowed  tiventy  eight  days  in  the  King's  Bench,  or  in 
the  Common  Pleas  tiventy  dsijs,{gg)  after  they  are  put  in,  to  except  to 
them  :  and  if  he  do  not  except  to  them  for  insufficiency  within  that  time, 
the  bail-piece  should  be  filed  by  the  defendant's  attorney,  within  four  days 
after. (A/i)  If  the  bail  in  an  inferior  court  offer  to  become  bail  in  the 
action  in  the  King's  Bench,  the  plaintiff  is  in  general  compellable  to  take 
them ;  because  he  might,  but  did  not  except  to  them  below :    But  it  is 

le)  R.  H.  10  W.  III. ;  and  see  R.  M.  1651.  R.  E.  29  Car.  II.  K.  B. 

(#)  1  Bos.  &  Pul.  311.  A7ite,  246,  356. 

(g)  R.  T.  8  W.  III.  reff.  3,  ?  1,  K.  B. ;  and  see  Append.  Chap.  XVI.  §  23,  &c. 

(h)  Imp.  C.  P.  7  Ed.  700,  706.  (i)  Append.  Chap.  XVI.  §  20,  21. 

(k)  New  Guide,  K.  B.  250,  51.  [1)  Append.  Chap.  XVI.  ?  22. 

(a)  R.  T.  8  W.  III.  reff.  3,  §  1,  K.  B. 

(b)  R  M.  1654,  ?  7,8,  K.B.  K.M.  1654,  §  11.  R.H.  13  &  14  Car.  II.  C.  P.  Ante,  253. 

(c)  Append.  Chap. XVI.  §  25.  (d)  Id.  §  26. 

(e)  R.  M.  1654,  §  12,  C.  P.  (/)  Append.  Chap.  XVI.  §  27. 

(ga)  R.  M.  1654,  §  11.  R.  H.  13  &  14  Car.  II.  C.  P. 

{hh)  R.  M.  1654,  ^  8.  R.  M.  16  Car.  II.  and  note,  (b).    1  Salk.  98,  K.  B.  R.  M.  1654,  ^  H. 
R.  H.  13  &  14  Car.  11.  C.  P. 


FROM  INFERIOR  COURTS.  409 

Otherwise,  when  a  cause  comes  hitlier  out  of  London  ;  for  the  sufTiciency 
of  the  bail  there  is  at  the  peril  of  the  clerk,  and  he  is  responsible  to  the 
plaintiff;  so  that  the  plaintiff  had  not  the  liberty  of  excepting  to  them; 
and  the  clerk  is  not  responsible,  if  they  be  deficient  in  this  court,  though 
he  was  in  London. {ii) 

If  the  phiintiff  be  dissatisfied  with  the  bail  put  in  by  the  defendant,  he 
should  obtain  a  rule  or  order  from  a  judge,  for  better  bail,  which  will  entitle 
him  to  a  procedendo^  unless  they  are  perfected  in  four  days  after  service  of 
the  rule  :(A:)  and  thereupon  the  same  or  different  bail  must  justify,  (as  in 
other  cases,)  within  the  four  days,  if  the  rule  be  served  in  term;  but  if 
served  in  vacation,  it  is  sufficient  for  the  defendant  to  give  notice,  within 
the  time  allowed  by  the  rule,  of  an  intended  justification  on  the  first  <lay  of 
the  ensuing  term.(/)  The  court  of  King's  Bench,  we  have  seen,{m)  will  not 
give  time  to  correct  a  misnomer  in  the  notice  of  justification  of 
bail ;  and  it  is  a  rule  in  that  court,  not  to  allow  time  for  justifying  [  *410  ] 
*bail  on  a  habeas  corpus,  on  account  of  the  delay,(rt)  except  in 
case  of  unavoidable  accident,  such  as  the  unexpected  illness  of  the  bail.(^) 
AVhere  the  rule  for  better  bail  was  served  on  the  14th  oi  January,  and  the 
bail  did  not  justify  until  the  19th,  the  court  held,  that  the  plaintiff 's  jtjro- 
cedendo  was  regular :((?)  But  where  the  rule  expired  in  vacation,  a  render 
on  the  first  day  of  the  ensuing  term,  sedente  eurid,  was  deemed  good : 
though  notice  was  not  given  till  afterwards  on  the  same  day,  and  after  a 
writ  of  procedendo  had  issued  to  an  inferior  court,  where  the  cause  origi- 
nated, (c^) 

The  bail  upon  a  habeas  corpus  are  liable  to  all  the  actions  mentioned  in 
the  return  of  it,  wherein  the  plaintiff  or  plaintiffs  shall  declare  within  tivo 
terms. (e)  But  this  must  be  understood  of  the  bail  upon  a  habeas  corpus 
before  declaration ;  for  it  is  said,  that  if  the  plaintiff  had  declared  before  the 
habeas  corpus  delivered,  in  one  action  which  requires  special  bail,  and  in 
another  wherein  common  bail  is  sufficient,  the  bail  shall  be  special  only  as 
to  that  action  which  requires  special  bail,  and  common  to  the  other. (/)  On 
a  removal  after  declaration,  special  bail  are  liable,  though  the  plaintiff  de- 
clare in  a  different  kind  of  action  in  the  court  above,  so  as  it  be  for  the 
same  cause.(_r/)  And  where  one  of  the  Yeomen  of  the  King's  guard  had 
been  arrested,  without  leave  from  the  Lord  Chamberlain,  by  process  issuing 
out  of  the  Palace  court;  and  that  court  had  refused  to  discharge  him  out 
of  custody,  on  filing  common  bail ;  and,  bail  above  having  been  put  in  and 
perfected  in  that  court,  the  defendant,  after  interlocutory  judgment  signed, 
removed  the  cause  into  the  King's  Bench  hy  habeas  corpus,  and  put  in  and 
perfected  bail ;  the  court,  under  these  circumstances,  refused  to  order  an 
exoneretur  to  be  entered  on  the  bail-piece. (//) 

If  bail  be  not  put  in  and  perfected  in  due  time,  a  procedendo  may  be 

{ii)  1  Salk.  07. 

\k)  R.  .\I.  10  Car.  II.  (r),  K.  B.  Append.  Clmp.  XVI.  ?  28. 

\l)  New  Guide,  K.  B.  249 ;  and  see  Append.  Chap.  XVI.  §  29. 

(m)  Ante,  2G6. 

\a)  1  Chit.  Rep.  76,  (a).  Ante,2l3. 

\b)  2  Chit.  Rep.  107.    9  Dowl.  &  Ryl.  6.    Ante,  273. 

(c)  1  Chit.  Rep.  1.30.  (rfj  5  East,  533  ;  and  see  16  East,  387. 

{,€)  R.  H.  2  Joe.  II.  (a),  K.B. 

(/)  SctIc  v.  Neioion,  H.  25  &  26  Car.  II.  2  Cromp.  3  Ed.  409. 

{ff)  1  Wils.  277. 
''   (//)  1  Barn.  &  Cres.    139.  2  Dowl.  k  Ryl.  250,  S.  C.     And  see  further,  as  to  bail  on  the 
removal  of  causesfrom  inferior  courts,  Petersd.  Part  I.  Chap.  XVII. 

Vol.  i.~26 


410  OF  THE  REMOVAL  OF  CAUSES 

awarded :(/)  ■which  is  a  judicial  writ,  directed  to  the  judges  of  the  inferior 
court,  commanding  them  to  proceed  in  the  cause, (A;^)  notwithstanding  the 
writ  before  delivered  to  them.     The  j^'^'ocedendo  removes  the  suspension 
created  by  the  certiorari,  or  habeas  corpus  :[ll)  and  this  writ  may  also  be 
awarded  where  it  appears  upon  the  return  of  the  habeas  corpus,  that  the 
court  above  cannot  administer  the  same  justice  to  the  parties  as  the  court 
below :  as  in  the  cases  before  mentioned,(mm)  where  an  action  is  brought  in 
London,  for  calling  a  woman  ivliore  ;  or  upon  a  custom  or  bye-law,  which 
is  only  suable  in  the  inferior  court.     So,  where  a  habeas  corpus  was  brought 
after  interlocutory  and  before  final  judgment  in  an  inferior  court,  and  the 
defendant  died  before  the  return  of  it,  a  procedendo  was  awarded  :  because, 
by  the  8  &  9  W.  III.  c.  11,  §  6,  the  plaintiflF  may  have  a  scire 
[  *411  ]  facias  *against  the  executors,  and  proceed  to  judgment,  which  he 
cannot  have  in  another  court;  and  by  this  means  he  would  be  de- 
prived of  the  effect  of  his  judgment,  which  would  be  unreasonable.(a)     So, 
where  an  action  was  brought  in  the  sheriff's  court  of  Lo?idon,  against  two 
partners,  and  one  of  them  brought  a  habeas  corpus,  and  put  in  bail  for  him- 
self only,  a  procedendo  was  granted  :  for  otherwise  the  plaintiff  would  have 
been  disabled  from  going  on  in  either  court. (5)     And  a  procedendo  was 
awarded  in  an  action  brought  in  the  Palace  court,  on  a  bail  bond  given  to 
the  officer,  on  process  issuing  out  of  that  court :  for,  by  the  statute  4  Anne, 
c.  16,  §  20,  the  action  on  the  bail  bond  ought  to  be  brought  in  the  same 
court  where  the  original  action  was  commenced,  in  order  that  the  court 
may  give  such  relief,  in  a  summary  way,  to  the  plaintiff  and  defendant  in 
the  original  action,  and  to  the  bail  upon  the  bond,  as  is  agreeable  to  jus- 
tice, (c)    But  the  plaintiff  in  an  inferior  court,  from  which  a  cause  is  removed 
by  habeas  corpus,  is  not  entitled  to  a  procedendo,  after  render  of  the  defend- 
ant, and  notice  of  such  render ;  although  the  render  be  made  after  the  day 
on  which  the  rule  for  better  bail  expires. (d)     And  a  procedendo  cannot 
issue  after  service  of  the  rule  for  the  allowance  of  bail,  on  the  ground  that 
the  plaintiff  was  called  by  a  wrong  name  in  the  notice  of  bail ;  but  the  rule 
for  the  allowance  should  be  first  set  aside. (e) 

In  causes  removed  from  the  Mayor's  court  of  London,  the  court  above 
will  allow  the  validity  of  the  custom  or  bye-law,  upon  which  the  action  is 
founded,  to  be  discussed  in  a  summary  way,  upon  the  return  of  the  certio- 
rari or  habeas  corpus,  and  before  it  is  filed :(/)  but  where  an  action  was 
brought  in  that  court,  and  the  defendant,  who  was  an  attorney  of  the  King's 
Bench,  sued  out  a  writ  of  privilege,  a  procedendo  was  awarded,  without 
prejudice  to  the  defendant's  pleading  his  privilege  in  the  court  below.(^) 
So,  where  a  cause  was  removed  from  the  Mayor's  court  of  London  by  ha- 
beas corpus,  to  which  a  return  was  made,  stating  a  custom  under  which  the 
defendant  was  sued  and  arrested,  error  being  suggested  in  the  proceedings 
below,  the  court  above  would  not  stay  the  procedendo  merely  on  that 
grounds ;  but  said,  they  would  leave  the  defendant  to  his  writ  of  error.(/i) 

(j)  R.  M.  1654,  I  8,  K.  B.  R.  M.  1654,  §  11.  R.  H.  13  &  14  Car.  II.  C.  P. 

\kk)  Append.  Chap.  XVI.  §31,2,  3. 

\ll)  1  Salk.  352.  6  Mod.  177,  S.  C.  {mm)  Ante,  398. 

(a)  1  Salk.  352.  [b)  1  Str.  527. 

(c)  8  Durnf.  &  East,  152. 

{d)  16  East,  387.    4  Barn.  &  Aid.  535.    Ante,  410. 

(e)  1  Chit.  Rep.  575.  (/)  1  Ld.  Raym.  581. 

{g)  Say.  Rep.  156,  7. 

(A)  6  Durnf.  &;  East,  760 ;  and  see  2  Bos.  &  Pal.  93. 


FROM  INFERIOR  COURTS.  411 

But,  except  in  causes  removed  from  London,  the  court  above  will  not  enter 
into  the  validity  of  a  custom  or  bye-law  in  a  summary  way,  on  the  return 
of  the  certiorari  or  habeas  corpus  ;  but  put  the  parties  to  declare  upou  it 
in  that  court,  and  demur.(i) 

If  a  record  be  filed  in  the  King's  Bench,  upon  a  certiorari,  it  can  never 
be  sent  back  or  remanded,  either  in  the  term  in  which  it  is  filed,  or  any 
other ;  and  that  is  plain  by  the  act  of  0  lien.  YIII.  c.  G,  which  enables  this 
court  to  remand  it  in  case  of  felony,  which  otherwise  they  could  not  have 
done:(/ir)  and  therefore  the  j>ro(?t't?t;?e(?o  must  be  moved  for  on  the 
*return  of  the  certiorari,  and  before  it  is  filed  :  But  upon  a  habeas  [  ^41 2  ] 
corpus  it  is  otherwise  ;  for  the  very  record  below  is  not  returned 
thereon,  and  therefore  cannot  be  filed  :  consequently  di.  procedendo  may  be 
granted  on  this  writ,  after  the  return  is  filed  ;  because  it  will  not  send  out 
any  record  filed  in  this  court,  but  only  takes  off  the  suspension  created  by 
the  habeas  corpus.{a)  After  the  cause  has  been  once  remanded,  by  writ  of 
proccdcnde,  it  cannot  be  again  removed,  or  stayed  by  any  writ  before  judg- 
ment :(6)  And  if,  after  a  procedendo  to  carry  a  cause  back  to  an  inferior 
court,  the  plaintiff  recover,  and  then  sue  out  a  scire  facias  against  the  bail 
below,  and  they  remove  the  proceedings  against  them  into  the  King's  Bench 
by  habeas  corpus,  this  court  will  award  o,  procedendo  in  the  suit  against  the 
bail.(c) 

A  certiorari,  as  we  have  already  seen,((^)  removes  the  record  in  a  civil 
cause  from  the  inferior  court;  but  though  the  record  be  brought  up  on  this 
writ,  into  the  court  above,  yet  they  do  not  take  up  the  cause  where  the 
record  leaves  off,  but  begin  the  whole  proceedings  de  novo  ;  for  there  is  no 
continuance  from  the  inferior  to  the  superior  court,  and  therefore  they 
cannot  proceed  on  that  record  which  was  below :  and  though  a  certiorari 
removes  the  record  in  the  condition  in  Avhich  it  was  at  the  time  of  the  ser- 
vice of  the  writ,  and  thereby  transfers  the  same  into  the  superior  court, 
yet  it  cannot  make  the  roll  of  the  inferior  court  a  record  of  the  superior 
one,  but  only  brings  up  the  record  from  the  inferior  to  the  superior  court  ;(e) 
and  nothing  is  recorded  here  but  the  original :(/)  Therefore,  where  the 
proceedings  in  an  inferior  court  of  record  were  removed  by  certiorari,  into 
the  Common  Pleas,  and  the  question  was,  whether  the  plaintiff  should  de- 
clare de  novo  ;  it  appearing  by  the  return,  that  the  parties  were  at  issue 
in  the  court  below,  it  was  holden  that  the  plaintiff  must  declare  denovo.ig) 
On  the  removal  of  a  cause  from  an  inferior  court,  by  writ  of  certiorari,  the 
plaintiff  need  not  file  his  declaration,  until  the  end  of  the  term  after  that 
in  which  the  writ  is  returnable. (/i)  And,  on  a  certiorari  or  habeas  corpus, 
the  plaintiff  may  declare  in  this  court,  as  he  pleases;  and  is  not  confined 
to  the  same  species  of  action  as  he  declared  in  below.(«i)  When  a  defend- 
ant, however,  removes  a  cause  from  an  inferior  court  by  certiorari,  the 
plaintift'  is  not  bound  to  follow  the  suit;  and  the  defendant  cannot  sign 
judgment  of  non-pros,  for  want  of  a  declaration.(A;^) 

(t)  2  Bur.  775.    2  Ken.  469  S.  C. 

(k)  1  Salk.352.  6  Mod.  177,S.  C. ;  and  see  Gilb.  E.tec.  144,5;  bnt  see  4  Dowl.  &  Rjl.  350. 

(a)  1  Salk.  3.'i2.  C  Mod.  177,  S.  C. ;  and  see  Gilb.Eiec.  144,5;  but  see  4  Dowl.  &  Ryl.350. 

(b)  Stat.  21  Jac.  I.  c.  23,  §  3.  (c)  6  Durnf.  &  East,  365. 

(d)  Ante.,  407. 

(e)  Gilb.  Exec.  144,  200.  F.N.  B.  71.  C.  Gilb.  Repl.  1 17  ;  but  seo  2  Alk.  317.  Barnes,  421. 
(/)  Bro.  Abr.  tit.  Cauae  de  remover  Plea,  pi.  47. 

\g)  Barnes,  345  ;  and  see  6  Dowl.  &  Rjl.  490,  91,  fcr  Ahhoit,  Ch.  J. ;  but  see  Barnes,  421. 
(A)  4  Moore,  190.  (ii)  Pr.  Reg.  221.  2  Chit.  Rep.  517. 

[kk)  4  Barn.  &  Ores.  G49.    7  Dowl.  &  Rjl.  104,  S.  C. 


412  OF  THE  REMOVAL  OF  CAUSES 

On  a  liahcas  corpus,  the  parties  have  no  day  in  court:  and,  as  the  record 
is  not  removed  upon  this  writ  from  the  inferior  court,  but  only 
[  *413  ]  an  "account  or  history  of  their  proceedings,  the  plaintiff  must 
begin  de  novo,  and  declare  against  the  defendant  as  in  custody 
of  the  marshal. (aa)  But  it  is  otherwise  where  conusance  is  demanded  and 
allowed ;  for  there  the  superior  court  gives  a  day  to  the  parties  in  the  inferior 
one,  and  transfers  the  roll  itself  into  that  court.  And  the  reason  of  the 
difference  is,  that  the  inferior  court  which  has  conusance,  being  taken  out 
of  a  superior  one,  the  judges  continue  the  cause  into  the  inferior  court,  as 
into  a  court  erected  by  the  king,  and  taken  out  of  the  ordinary  jurisdic- 
tion ;  and  therefore,  the  proceedings  go  on  as  in  the  court  in  which  they 
were  commenced;  but  where  the  cause  is  taken  from  the  inferior  to  the 
superior  court,  they  do  not  proceed  as  in  the  same  court ;  for  it  would  be 
below  the  higher  jurisdiction  not  to  proceed  on  it  as  res  integra,  or  to 
suffer  any  continuance  to  be  made  from  a  subordinate  power  to  theirs. (6) 

The  declaration  upon  a  habeas  corpus  must  be  delivered,  if  at  all,  before 
the  end  of  the  second  term  after  putting  in  bail,  including  the  term  in 
which  it  was  put  in  :{c)  If  the  plaintiff  do  not  declare  within  that  time,  the 
defendant's  attorney  is  not  bound  to  accept  a  declaration ;  though  the 
plaintiff  cannot  be  non-prossed  for  want  of  \t.{d)  And  if  a  cause  be  removed 
by  the  defendant,  by  habeas  corpus,  out  of  an  inferior  court,  the  plaintiff 
is  not  bound  to  declare  in  the  court  above,  if  he  has  taken  no  other  step 
than  compelling  the  defendant  to  put  in  and  justify  bail  there. (e)  On  the 
removal  of  a  cause  by  habeas  corpus,  out  of  the  courts  of  Canterbury^ 
Southampton,  Hull,  Litchfield,  or  Poole,  which  are  counties  where  the 
judges  of  nisi  ptrius  seldom  come,  if  the  action  be  transitory,  the  venue 
must  be  laid  in  the  county  oi Kent,  Southampton,  York,  Stafford,  or  Dorset, 
where  the  town  and  county  lies.(/)  And,  on  a  habeas  corpus  returnable 
in  Michaelmas  or  Easter  term,  if  the  declaration  be  delivered  before  the 
third  return,  the  defendant  is  not  entitled  to  an  imparlance. ( g)  So,  when 
a  defendant  removes  the  cause  by  habeas  corpus  from  an  inferior  court, 
and  the  plaintiff  does  not  declare  until  the  next  term,  an  imparlance  is  not 
allowed ;  for  such  removals  being  in  general  considered  as  dilatory,  it  would 
only  be  adding  to  the  delay  if  an  imparlance  were  granted. (7t) 

If  a  plaint  be  levied  in  an  inferior  court,  within  six  years  after  the  cause 
of  action  arose,  and  then  it  be  removed  into  the  King's  Bench  by  habeas 
corpus,  and  the  plaintiff  declare  here  de  novo,  and  the  defendant  plead  the 
statute  of  limitations,  the  plaintiff,  we  have  seen,(z)  may  reply,  and  show 
the  plaint  in  the  inferior  court,  and  that  will  be  sufficient  to  avoid 
[  *414  ]  *thc  statute.  And  it  is  a  rule,  that  upon  a  cause  removed  by 
habeas  corpus  out  of  an  inferior  court,  having  jurisdiction  of  the 
cause,  if  judgment  be  given  for  the  plaintiff,  the  costs  below  are  to  be  con- 

{aa)  1  Salk.  352.  6  Mod.  177,  S.  G. ;  and  see  R.  M.  16  Car.  II.  (c).  Skin.  215.  2  L.  Raym. 
1102,3.  2Atk.  317.  Gilb.Repl.  114.  1  Durnf.  &  East,  372. 

(b)  Gilb.  Erec.  144,  200.  F.N.  B.  71,  C.  Gilb.  Repl.  117. 

(c)  1  Str.  631.  Barnes,  90  ;  but  see  Cro.  Jac.  620,  by  which  it  appears,  that  ancientlythe 
plaintiff  bad  three  terms  to  declare,  after  bail  put  in;  and  see  6  Durnf.  &  East,  752.  4 
Moore,  190. 

{d)  R.  M.  16  Car.  II,  (c),  K.  B.  Cowp.  117.  1  Durnf.  &  East,  372. 

(e)  3  Maule  &  Sel.  93.  (  f)  R.  M.  1654,  g  9,  K.  B.    R.  M.  1654,  §  12,  C.  P. 

{g)  1  Mod.  1.    2  Salk.  515.    1  Wils.  154. 

[h]  6  Durnf.  &  East,  752  ;  but  see  2  Bos.  &  Pul.  137. 

(t)  Ante,  27,  8. 


FROM  INFEllIOR  COURTS.  4U 

siderod,  and  cast  into  the  judgment;  if  for  the  defendant,  the  charges  of 
putting  in  baii.(a) 


When  the  inferior  court  from  which  the  cause  is  to  be  removed  is  not  of 
record,  the  means  of  removing  it,  we  may  remember,  are  by  pon9,  recordari 
facias  loquelam,  accedas  ad  curiam.  These  writs  are  chieily  calculated 
for  the  removal  of  actions  of  replevin  from  the  county  court,  or  court  of 
some  lord  autliorized  to  grant  replevins  ;  for  it  is  beneath  the  dignity  of  a 
superior  court  to  proceed  in  other  actions,  if  the  debt  or  damages  appear 
to  be  unHQY  forty  shillings;  and  therefore,  in  such  case,  if  the  cause  were 
removed,  the  court  would  remand  it  by  procedendo.  A  plaint  in  replevin 
cannot,  we  have  secn,(i)  be  removed  from  a  county  court  in  Wales,  into 
the  King's  Bencli,  by  certiorari.  And  a  writ  of  accedas  ad  curiam, 
issued  to  a  court  of  requests,  which  proceeds  equitably,  may  be  set  aside 
on  motion. (f) 

If  a  replevin  be  sued  by  ivrit  out  of  Chancery,  then  if  the  plaintiff  or 
defendant  would  remove  the  cause  out  of  the  county  court,  into  the  King's 
Bench(t/)  or  Common  Pleas,  he  ought  to  sue  out  a  writ  of  2yone;ie)  which 
is  an  oriejinal  writ,  issuing  out  of  Chancery,  directed  to  the  sheriff  of  the 
county  where  the  replevin  is  brought ;  and  when  returnable  in  the  King's 
Bench,  it  commands  the  sheriff  to  imt  before  the  king  on  a  general  return 
day,  wheresoever,  &c.  the  plea  which  is  in  his  county,  by  the  king's  writ, 
between  the  parties,  of  the  cattle  or  goods  taken  and  unjustly  detained,  &c. 
The  writ  of  pone,  if  taken  out  by  the  plaintiff  in  replevin,  hath  a  clause 
in  it,  commanding  the  sheriff  to  summon  the  defendant  to  appear  in  the 
court  above  at  the  return  day,  that  he  be  then  there,  to  answer  the  plain- 
tiff thereupon.(e)  If  the  replevin  be  removed  by  the  defendant,  then 
the  i^one  commands  the  sheriff,  that  he  warn  the  plaintiff  to  be  there, 
to  prosecute  his  plaint  thereupon  against  the  defendant,  if  he  shall  think 
proper :(/)  and  by  this  means,  both  parties  have  a  day  in  the  court 
above. ((/) 

AVhen  the  plaint  is  in  the  county  court,  and  the  replevin  sued  there  ivith- 
out  writ,  then  if  the  plaintiff  or  defendant  would  remove  it,  he  ouglit  io 
sue  out  a  writ  of  recordari  facias  loquelam  ;  which  is  an  original  writ, 
issuing  out  of  Chancery,(/<)  on  a  proper  prxcipe,{i)  directed  to  the  sheriff 
in  whose  court  the  plaint  is  entered, (Z:)  commanding  him  that  in 
his  full  *county,  he  cause  to  be  recorded  the  plaint  which  is  in  [  *415  ] 
the  same  county,  without  the  king's  writ;  and  that  he  have  that 
record  in  the  court  above,  on  a  general  return  day,  under  his  seal,  and 
the  seals  of  four  lawful  knights  of  his  county  who  were  present  at  that 
recording ;  and  that  he  prefix  the  same  day  to  the  parties,  that  they  bo 
then  there,  to  proceed  in  the  action.(aa)     And  if  a  replevin  be  sued  by 

(rt)  R.  11.1054,3  22,  K.B.  R.M.1G54,§  25,  C.  P.  ^.        .^^  ^    r. 

\b)  Ante,Am  '  (c)  10  Moore,  32.  Id.  ITl.  2  Bmg.4G3,S.  C. 

(d)  Bro.  Abr.  tit.  Cause  de  Remover  Plea,  pi.  50.  Trye,  94. 

(e)  F.  N.  B.  69,  M.  Gilb.  Repl.  102.  Append.  Chap.  XLV.  J  26. 

(/)  Append  Chap.  XLV.g  27.  ,   .  t-     .   o^, 

(>)  F.  N.B.  70,  A.  Gilb.  Rcpl.  106,7,8.  2  Ld.  Raym.  1102,  3.  1  Durnf.  &  East,  371. 
Ih)  F.  N.  B.  70,  B.  Gilb.  Repl.  108. 

(i)  Append.  Chap  XLV.  ?  34.  (^■)  Trye,  39. 

(aa)  F.  N.  B.  70,  B.  Append.  Chap.  XLV.  §  35. 


415  OF  THE  RExMOVAL  OF  CAUSES 

plaint  in  the  court  of  any  lord,  other  than  in  the  county  court  before  the 
slieriff,  then  the  recordari  has  a  clause  therein  commanding  the  sheriff, 
that  taking  with  him  four  discreet  and  lawful  knights  of  his  county,  he 
go  in  his  proper  person  to  the  court  of  the  lord  ;  and  in  that  full  court, 
cause  to  be  recorded  the  plaint,  &c.  •.[hb)  and  from  this  clause  in  the  writ, 
it  is  called  an  accedas  ad  curiam.{cc)  On  this  writ  the  sheriff  must  go  in 
person  to  the  lord's  court,  and  take  with  him  four  men  of  his  county;  but 
it  is  not  necessary  that  they  should  be  knights. (cZcZ)  When  a  sheriff,  or 
his  deputy,  neglects  to  enter  a  plaint  in  reiolevin,  in  the  county  court,  for 
damage  feasant,  the  court  of  King's  Bench  will  not  compel  him  to  do  so, 
on  motion ;  but  the  only  remedy,  if  any,  is  by  writ  of  mandamus. [e) 

The  ^plaintiff  may  remove  the  plea  out  of  the  county  cou7't,  either  by 
pone,  or  recordari,  without  cause  shown ;  for  it  is  in  his  own  delay  :  but 
the  defendant  cannot  remove  it  without  cause  shown ;  for  since  it  is  in 
delay  of  the  plaintiff,  a  just  cause  ought  to  appear  on  record  for  such 
removal. (/)  The  cause  of  removal  usually  assigned  is,  that  the  sheriff 
or  his  clerk  is  related  to  one  of  the  parties  -.{g)  and  the  sheriff  cannot 
return  that  the  cause  is  not  true.  But  if  either  the  plaintiff  or  defendant 
remove  a  suit  out  of  the  lord's  court,  they  ought  to  show  cause ;  because 
they  should  not  oust  the  lord  of  the  profits  of  his  jurisdiction,  without 
apparent  reason  •.[li]  And  it  seems  that  such  causes  were  anciently 
examined  before  the  writ  was  granted,  as  in  Chancery  they  used  to 
examine  the  cause  of  action,  before  the  granting  of  original  writs  ;  but 
this  in  both  cases  is  now  neglected,  and  such  writs  are  issued  as  a  matter 
of  course. (t) 

The  writ  of  pone,  recordari,  or  accedas,  like  the  certiorari  or  habeas 
corpus,  when  delivered  to  the  sheriff  or  lord  to  whom  it  is  directed,  instantly 
suspends  his  power ;  so  that  if  he  afterwards  proceed,  he  is  liable  to  an 
attachment,  and  the  proceedings  are  void,  and  coram  non  judice.{k)  And 
it  has  been  adjudged,  that  the  officer  of  an  inferior  court  cannot  refuse  pay- 
ing obedience  to  the  writ,  under  pretence  of  not  being  paid  his  fees ;  for 
he  is  obliged  to  obey  the  writ,  and  has  a  proper  remedy  for  such  fees  as 
are  due  to  him.(Z)  On  the  receipt  of  the  writ  therefore,  it  should  be  forth- 
with allowed  and  returned,  under  the  peril  of  an  attachment.     The  return 

to  the  po7ie  or  recordari,  &c.  should  be  made  and  filed  by  the 
[  *416  ]   *party  suing  it  out,  with  the  filacer  of  the  court  above,  in  two 

terms  after  it  is  returnable  ;(a)  or,  upon  the  filacer's  certificate, 
the  cursitor  will  issue  o,  procedendo. lb)  The  recordari  and  accedas  ad 
curiam  should  be  returned  under  the  sherifi"'s  seal,  and  the  seals  of  four 
suitors  of  the  court :  And  it  is  a  good  return  for  the  sheriff  to  say,  that 
after  the  receipt  of  the  writ,  and  before  the  return  thereof,  no  court  was 
holden ;  and  also,  that  he  required  the  lord  to  hold  his  court,  and  he  would 
not,  so  that  he  could  not  execute  the  same ;  and  thereupon  the  justices 
shall  award  a  distringas,  directed  unto  the  sheriff,  to  distrain  the  lord  to 

(M)  F.N. B.  70,  A.  Gilb.Repl.  112. 

\cc)  Append.  Chap.  XLV.  I  47  ;  and  see  2  Bos.  &  Pul.  138,  {a). 

(dd)  F.  N.  B.  10,  E.  (e)  2  Dowl.  &  Ryl.  13. 

(/)  Gilb.  Repl.  103,  cites  F.  N.  B.  69,  M.  70,  B. ;  and  see  2  Moore,  643. 

iff)  Append.  Chap.  XLV.  ^  27.  (h)  F.  N.  B.  70,  A.  Gilb.  Repl.  105. 

(»•)  Gilb.  Repl.  105.  [k)  F.  N.  B.  4,  E. 

(/)  2  Bur.  1151,2.  Gilb.Repl.  115.  Ante,  i0i,5. 

(a)  For  the  form  of  a  return  to  a  recordari,  see  Append.  Chap.  XLV.  §  38. 

(t)  Id.  I  46,  49. 


FROM  INFERIOK  COURTS,  416 

hold  his  court;  and  sicut  aUas,{e)  &c.  When  the  return  is  filed,  the  cause 
it  seems  cannot  afterwards  be  remanded  ;{d)  unless  it  was  removed  from 
a  court  of  ancient  deraesne.(<?c) 

If  the  pone  or  rccordari,  &c.  bear  date  before  tlic  plaint  entered  in  the 
county,  yet  the  cause  is  well  removed ;  because  both  are  the  kin<!;'s  courts. (/f) 
But  if  the  cause  be  removed  out  of  the  court  of  any  other  lord,  by  a  writ 
which  bears  date  before  the  entry  of  the  plaint,  is  not  good.(^)  The 
reason  of  the  difference  is,  because  the  sheriff,  by  whom  the  county  is  held 
or  farmed,  bcinc;  the  kinf^'s  immediate  deputy,  the  kin^;  may  remove  the 
replevin  out  of  the  sheriff's  court  into  his  own,  without  showing  cause;  and 
therefore  it  is  not  material  whether  the  recordari  be  tested  before  the  plaint 
or  not :  and  although  the  defendant  cannot  remove  the  plaint  without 
cause,  yet  this  is  not  in  order  to  prevent  the  sheriff  from  being  ousted  of 
his  jurisdiction,  but  that  the  plaintiff  may  not  be  delayed  without  good 
cause  shown  :  But  when  the  record  is  removed  out  of  the  lord's  court, 
which  has  a  jurisdiction  by  grant  or  prescription,  there  must  be  cause 
shown  for  such  removal;  and  the  cause  will  be  absurd,  if  the  accedas  ad 
curiam  bear  date  before  the  plaint,  for  that  cannot  be  a  cause  to  oust  the 
lord  of  his  jurisdiction,  which  was  not  in  being  at  the  time  of  the  writ 
issued. (^)  So,  the  plaint  is  well  removed  by  certiorari,  where  it  ought  to 
have  been  hj  pone  or  recordari  :{h)  So,  if  one  plaint  be  removed,  where 
another  ought  to  have  been ;  or  where  there  is  a  variance  between  the 
plaint  and  the  writ.(/i)  If  the  plaintiff  has  already  declared  in  the  county 
court,  yet  nothing  shall  be  removed  but  the  plaint  :{i)  And  though  the 
plea  be  discontinued  in  the  county,  yet  the  plaintiff  or  defendant  may 
remove  the  plaint  into  the  King's  Bench  or  Common  Pleas,  by  recordari, 
&c.,  and  he  shall  declare,  and  the  court  shall  hold  plea,  upon  the  same 
plaint.('i) 

If  the  writ  of  pone  or  recordari,  &c.,  be  brought  by  the  plaintiff,  and 
the  defendant  do  not  appear,  on  or  before  the  appearance  day  of  the  return, 
the  plaintiff",  having  previously  filed  the  writ  and  return  with  the  filacer,(A;) 
should  give  a  rule  with  that  officer,  for  the  defendant  to  appear,(^) 
*which  expires  in  four  days  ;(a)  and  upon  his  non-appearance  [  *417  ] 
within  that  time,  sue  out  a  pone  per  vadios  ;(h)  upon  which  a 
summons(cc)  is  made  out,  and  served  upon  the  defendant :  and  if  he  do  not 
appear,  the  plaintiff,  on  the  return  of  nihil,  should  sue  out  a  distringas  ;{dd) 
and  afterwards,  if  necessary,  an  alias  or  plurics  distringas  ;{e)  upon  which 
issues  are  levied  from  time  to  time,  until  the  defendant  appear,  when  ho 
must  pay  the  costs  of  the  different  writs  :(/)  or,  if  nulla  bona  be  returned, 
the  plaintiff  may  have  a  capias,{gg)  and  process  of  outlawry.  If  the  cause 
be  removed  by  the  defendant  by  jjone,  and  the  plaintiff  appear,  but  the 
defendant  make  default,  a  distringas  is  the  first  process  for  compelling  his 

(c)F.N.  B.  18, E. 

(rf) /(/.  69,  M,  (a).  Gilb.  Repl.  10.  (ec)  Gilb.  Repl.  11 1. 

(jf)  F.  N.  B.  71,D.    Gilb.  Repl.  118.  (^)  Gilb.  Rcpl.  118, 19. 

(k)  F.N.  B.  69,  M,  (a).  Cro.  Eli/,.  543.  Gilb.  Repl.  108  ;  but  see  Moore,  30. 

(i)F.  N.B.  71,A.  Gilb.  Repl.  113. 

[k]  Barnes,  222.  (I)  Pr.  Reg.  371.  Append.  Chap.  XLV.  ?  50. 

(a)  2  Bos.  &  Pul.  138. 

(b)  21  Hen.  VI.  50.   F.  N.  B.  70,  A.  Gilb.  Repl.  107.  Append.  Chap.  XLV.  ?  41. 

(cc)  Append.  Chap.  XLV.  ^  42.  (dd)  Id.  §  4.-5.  (e)  Id.  g  44. 

(/•)  3  Sel.  Pr.  2  Ed.  161.   Imp.  C.  P.  7  Ed.  745.   Anie,  110,  11. 

(.7,7)  3  Hen.  VI.  54,  5.    F.  N.  B.  70,  A.    Gilb.  RepL  106,  7.    Pr.  Reg.  371.    Thcs.  Brcv.  37. 
Append.  Chap.  XLV.  §  45. 


417  OF  THE  REMOVAL  OP  CAUSES 

appearance  ;(7Ji)  and  on  a  nulla  ho7ia  returned,  a  capias  maybe  issued. (^(/) 
The  appearance  of  the  defendant  is  entered  with  the  filacer  ;(n)  after 
which,  the  next  step  is  for  the  plaintiff  to  declare  :  and  though  he  has 
already  declared  in  the  inferior  court, (/c/c)  yet  as  nothing  is  removed  but 
the  plaint,  he  must  declare  dc  novo  in  the  court  above. (Z/)  But  the  declara- 
tion, in  the  Common  Pleas,  should  regularly  be  delivered  before  the  end 
of  the  second  term  after  the  return  of  the  recordai'i,  &c.,  unless  the  plain- 
tiff has  obtained  a  rule  for  time  to  declare,  which  it  seems  he  may  do  in 
replevin,  as  well  as  in  other  actions  ;(?w)  and  if  it  be  not  delivered  till  the 
third  term,  the  court  will  set  it  aside  for  irregularity. (7i)  After  a  writ  of 
reeordari  facias  loquelam,  and  several  writs  of  pone  issued  thereon  to 
compel  the  defendant's  appearance,  if  the  plaintiff  file  a  declaration,  enti- 
tled of  an  intermediate  term  between  that  in  which  the  reeordari  facias 
loquelam  is  returnable  and  the  term  in  which  the  declaration  is  filed,  with 
notice  to  plead  in  the  following  term,  both  the  declaration  and  notice  to 
plead  are  irregular,  (o) 

When  the  writ  of  pone  or  reeordari,  &c.,  is  brought  by  the  defendant, 
he  should  file  it  and  the  return  with  the  filacer ;  and  having  entered  his 
appearance,  give  a  rule  for  the  plaintiff  to  declare, (j^j)  with  the  master  in 
the  King's  Bench,  or  filacer  in  the  Common  Pleas :  and  if  the  return  be 
filed  on  or  before  the  appearance  day,  there  is  no  occasion  to  demand  a 
declaration  in  writing  ;(g)  but  otherwise  a  written  demand  is  necessary.(r) 

The  rule  to  declare  may  be  given,  in  the  King's  Bench,  within 
[  *418  ]  fourteen  days,(s)  *or  in  the  Common  Pleas  within /owr  days, (a) 

after  the  end  of  the  term,  and  served  on  any  day  before  the 
time  in  the  rule  has  expired ;  and  the  plaintiff,  in  the  King's  Bench,  must 
declare  within /owr  days  after  such  service. (Z»)  But  the  demand  of  declara- 
tion, when  necessary,  should  not  be  made  before  the  return  of  the  writ.(c) 
The  same  mode  of  proceeding  may  be  adopted,  to  compel  the  plaintiff  to 
declare,  where  he  neglects  to  do  so,  after  having  sued  out  and  filed  the 
writ  of  reeordari,  &c. :  And  if  he  do  not  declare  within  the  time  limited 
by  the  rule,  or  obtain  a  rule  for  time  to  declare,  the  defendant  may  sign  a 
judgment  of  non-pros,{d)  upon  which  he  is  entitled  to  costs  ;(e)  and  in 
replevin,  he  may  sue  out  a  writ  of  retortio  Jiabendo,{f)  or,  if  the  distress 
was  for  rent,  proceed  to  execute  a  writ  of  inquiry,  on  the  statute  17  Car. 
II.  c.  l.(ff)  If  the  party  suing  out  a  reeordari,  &c.,  do  not  get  it  returned 
and  filed  within  tivo  terms,  the  other  party  should  apply  to  the  filacer,  for 

(M)  21  Hen.  VI.  50.  F.  N.  B.  70,  A.  Gilb.  Rcpl.  106,  7  ;  and  see  2  Bos.  &  Pul.  137,  where 
a  distringas  issued,  for  compelling  the  defendant's  appearance,  on  the  removal  of  a  cause  by 
the  plaintiff,  by  accedas  ad  curiam. 

[gg)  Ante,  p.  4IG,  note  {gg). 

(ii)  Trye,  94. 

(kk)  For  the  form  of  a  declaration  in  the  county  court,  see  Append.  Chap.  XLV.  3  22. 

(«)  E.  N.  B.  71,  A.    Gilb.  Repl.  113. 

(w)  I  Durnf.  &  Bast,  371.    5  Taunt.  35. 

(7j)  5  Taunt.  649  ;  and  see  Allen  v.  3Iillward,  H.  30  Geo.  III.  C.  P.  Imp.  C.  P.  7  Ed.  533,  4. 

(o)  5  Taunt.  771.1  Marsh.  341,  S.  C. 

(p)  Pr.  Reg.  371 ;  and  see  2  Moore,  642.  Append.  Chap.  XLV.  g  54. 

(q)  1  H.  Blac.  281.  2  Moore,  643,  (c). 

(r)  Pr.  Reg.  370.    Cas.  Pr.  C.  P.  55,S.  C.   Append.  Chap.  XLV.  §  52. 

(s)  11  East,  183. 

(a)  Allen  v.  Millward,  H.  30  Geo.  III.  C.  P.    Imp.  C.P.  7  Ed.  533,  4. 

{b)  11  East,  183.  (c)  10  Moore,  32. 

{d)  P.  N.  B.  70,  A.  Gilb.  Repl.  106,  7.  Append.  Chap.  XLV.  §  55,  &c. ;  but  see  2  Moore,  642. 

(«)  1  Durnf.  k  East,  371.  (/}  Append.  Chap.  XLV.  §  92. 

{g)  Id.  I  59,  77. 


FROM  INFERIOR  COURTS.  418 

a  certificate  that  tlie  same  is  not  returned  and  filed ;  -vvliich  will  be  a  suffi- 
cient warrant  for  the  cursitor  to  make  out  a  writ  of  procedendo,  for 
remanding  the  cause  to  the  inferior  court  :{h)  Or  if  either  party,  having 
sued  out  a  rccordan,  &c.,  neglect  to  file  it,  the  other  party,  for  the  sake 
of  expedition,  may,  without  waiting  till  the  end  of  the  second  term,  sue 
out  another  writ  of  the  same  nature,  and  got  it  returned  and  filed,  for 
removing  the  proceedings  into  the  court  above. 

After  the  plaintiff'  has  declared,  he  should  give  a  rule  for  the  defendant  to 
avow  or  make  cognizance;  and,  in  the  Common  Pleas,  if  the  writ  by  which 
a  cause  is  removed,  be  returnable  on  the  first  return  of  the  term,  and  the 
plaintiif  do  not  declare  within /oit?-  days  before  the  end  of  that  term,  the  de- 
fendant is  entitled  to  an  imparlance,  though  he  has  not  appeared  within  the 
term.(/)    The  subsequent  proceedings  are  similar  to  those  in  common  cases. 

(h)  Barnes,  222.  2  Scl.  Pr.  2  Ed.  162.  Imp.  C.  P.  7  Ed.  T47.  Append.  Chap.  XLV.  §  46,  49. 
(i)  2  Bos.  &  Pul.  137. 


Note.  An  important  removal  of  causes  sometimes  takes  place  here  under  the  ])0\ver  of  the 
Federal  Constitution.  A  recent  case  in  the  Supreme  Court  of  Pennsylvania,  Wheahn  v.  The 
Camden  .j-  Amhoij  Kail  Road  Co.,  4  Am.  Law  Reg.  29G,  discusses  the  suV)ject  matter  so  fully  that 
the  reader  is  presented  with  the  opinion  of  Mr.  Just.  Woodward,  as  the  most  recent  and  satis- 
factory discussion  that  is  to  be  found.  "  The  Constitution  of  the  United  States,  art.  3,  sect.  2," 
says  he,  "extends  the  judicial  power  of  the  federal  union  to  various  classes  of  cases,  and 
among  others  to  all  cases  in  law  and  equity '  between  citizens  of  different  states.'  The  1 1th  sec- 
tion of  the  Act  of  Congress,  1789,  commonly  called  the  Judiciary  Act,  vests  original  cogniz- 
ance in  the  Circuit  Courts  of  all  suits  of  a  civil  nature  at  common  law  or  in  equity,  where 
the  matter  in  dispute  exceeds,  exclusive  of  costs,  five  hundred  dollars,  and  where  'the  suit 
is  between  a  citizen  of  the  state  where  the  suit  is  brought,  and  a  citizen  of  another  state:' 
and  the  12th  section  provides  that  if  a  suit  be  commenced  in  a  State  court  by  a  citizen  of  the 
state  in  which  the  suit  is  brought,  against  a  citizen  of  another  state,  and  the  matter  in  dis- 
pute exceeds  five  hundred  dollars,  exclusive  of  costs,  to  be  made  to  appear  to  the  satisfac- 
tion of  the  court,  and  the  defendant  shall,  at  the  time  of  entering  his  appearance  in  such 
State  court,  file  a  petition  for  the  removal  of  the  cause  for  trial  into  the  next  circuit  court, 
to  be  held  in  the  district  where  the  suit  is  pending,  and  offer  good  and  sufficient  surety  for 
his  appearance  in  said  court,  and  entering  special  bail  if  necessary,  '  it  shall  then  be  the 
duty  of  the  state  court  to  accept  the  surety  and  proceed  no  further  iu  the  cause,'  but  the 
same  is  to  proceed  in  the  Circuit  Court  of  the  United  States,  in  the  same  manner  as  if  it  had 
been  brought  there  by  original  process. 

"It  will  be  observed  that  the  legislative  language,  descriptive  of  the  parties  who  may  sue 
or  remove  into  the  circuit  court,  is  a  little  more  restricted  than  that  emjjloyed  in  the  consti- 
tution, but  if  any  difference  of  meaning  be  indicated  by  the  difference  in  phraseology,  it  is 
unimportant  in  the  cause  before  me,  for  if  this  be  a  removable  case,  it  is  because  it  is  within 
the  words  of  the  legislature,  and  of  course  within  those  of  the  constitution. 

"  What,  then,  is  the  case?  James  C.  Whcedcn  brought  suit  in  the  Supreme  Court  of 
Pennsylvania  against  the  Camden  and  Amboy  Railroad  and  Transportation  Company,  for 
the  recovery  of  damages  claimed  to  exceed  five  hundred  dollars,  and  which  resulted,  it  is 
understood,  from  the  late  calamity,  well  known  as  the  '  Burlington  disaster.'  The  Com- 
pany, at  the  time  of  appearing,  filed  a  petition,  setting  forth  that  they  were  a  corporation 
solely  created  and  established  by  laws  of  the  State  of  New  Jersey,  and  having  their  chief 
place  of  business  within  the  State  of  New  Jersey,  and  that  the  corporation  was  and  is  a 
citizen  of  said  state,  and  that  the  plaintiff  is  a  citizen  of  Pennsylvania.  Security  was  ten- 
dered and  the  removal  of  the  cause  into  the  circuit  court  was  pr.iyed  for. 

"The  plaintiff  puts  in  an  answer  to  the  petition  and  alleges  that  the  company  own 
property  and  transact  a  large  part  of  their  business  in  the  city  of  Philadelphia.  Several  of 
the  specifications  in  the  plaintiffs  answer  are  qualified  and  some  of  them  contradicted  by 
counter  affidavits  on  the  part  of  the  company  ;  but  I  do  not  consider  the  facts  alleged  in  the 
answer,  whether  disputed,  qualified  or  admitted,  as  of  much  moment  to  the  present  inquiry, 
for  the  defendant  being  a  corporation  created  by  the  Legislature  of  New  Jersey,  and  having 
no  vitality  or  existence,  save  such  as  is  derived  from  that  source,  cannot  be,  ^yhatever  their 
business  transactions  in  this  state,  a  citizen  of  Pennsylvania  in  any  sense  of  either  the  con- 
stitution or  the  judiciary  act.  'That  invisible,  intangible  and  artificial  being,  that  mere 
legal  entity,  a  corporation  aggregate,'  if  capable  of  becoming  a  citizen  of  a  state  for  any  pur- 
pose, must  be  made  so  by  the  legislative  power  of  the  state.  It  is  impossible  that  New  Jer- 
sey should  make  a  citizen  of  Pennsylvania,  even  of  a  natural  person,  much  less  of  an  artificiaL 


418  OF  THE  REMOVAL  OF  CAUSES 

And  if  tlie  Icf^islativc  faculty  of  that  state  is  incompetent  for  this  purpose,  a  corporation 
existiiip;  solely  by  her  will,  cannot  make  itself  a  citizen  of  Pennsylvania.  No  amount  of  busi- 
ness carried  on,  or  property  held  here,  can  naturalize  such  a  corporation.  Its  rights  amongst 
us  are  permissive  merely,  resting  entirely  in  the  absence  of  prohibitory  legislation.  That 
we  regard  every  corporation  '  not  holding  its  charter  under  the  laws  of  this  Commonwealth,' 
as  foreign,  may  be  seen  by  reference  to  the  3d  section  of  our  act  of  Assembly  of  21st  March, 
1849,  (Brightly's  Purdon,  1G9,)  which  provides  that  suit  may  be  brought  against  '  any  such 
foreign  corporation  '  by  process  served  upon  '  any  officer,  agent,  or  engineer  of  such  corpor- 
ation, either  personally  or  by  copy,  or  by  leaving  a  certified  copy  at  the  office,  depot,  or 
usual  place  of  business  of  said  corporation.'  It  was  under  this  act  of  Assembly  the  present 
defendant  was  sued,  as  a  foreign  corporation.  The  answer  does  not  allege  any  legislative 
recognition  by  Pennsylvania  of  this  corporation  defendant,  and  therefore,  if  all  that  is 
alleged  were  admitted,  it  would  not  be  a  step  in  the  process  of  proving  a  Pennsylvania 
citizenship  for  it.  We  subject  it  to  suit  through  its  agents  when  they  are  found  here,  and 
we  seize,  in  execution  of  our  judgments,  any  property  it  may  have  within  our  borders  ; 
but  in  no  sense  or  degree  can  it  ever  become  a  local  institution,  except  by  express  legislative 
recognition. 

"But  further.  If  the  facts  alleged  in  the  answer  are  insufficient  to  prove  a  Pennsylvania 
citizenship,  so  also  do  they  fail  to  disprove  this  corporation  a  citizen  of  New  Jersey.  If  it 
have  a  local  habitation  it  is  in  New  Jersey,  and,  to  borrow  the  language  of  Ch.  J.  Taney,  in 
Bank  of  Augusta  v.  Earlc,  13  Peters,  588,  it  must  dwell  in  the  place  of  its  creation  ;  and  can- 
not migrate  into  another  sovereignty.  But  as  natural  persons,  through  the  intervention  of 
agents,  are  continually  making  contracts  in  countries  in  which  they  do  not  reside,  and  where 
they  are  not  personally  present  when  the  contract  is  made,  so  may  this  artificial  person  by  its 
agents  make  contracts  within  the  scope  of  its  limited  powers  in  a  sovereignty  in  which  it 
does  not  reside,  provided  such  contracts  are  permitted  to  be  made  by  the  laws  of  the  place. 

"And  as  the  natural  person  does  not  transfer  his  citizenship  from  one  sovereignty  to 
another  by  such  dealings,  neither  does  the  artificial.  Nor  do  such  dealings  constitute,  for 
either  the  natural  person  or  the  corporation,  a  double  citizenship,  one  in  the  place  of  the 
domicil,  and  another  where  business  is  carried  on  through  agencies. 

"It  is  obviously  proper,  therefore,  for  me  to  lay  out  of  view,  in  the  further  consideration 
of  this  case,  ail  the  business  arrangements  and  transactions  which  the  answer  charges  the 
company  with  maintaining  in  Pennsylvania.  A  foreign  corporation  doing  business  in  this 
state  becomes  not  thereby  a  citizen  of  Pennsylvania,  and  loses  not  any  citizenship  it  may  have 
in  the  state  of  its  creation. 

"  But  still  the  question  remains,  is  this  company  a  citizen  of  New  Jersey?  Incorporated 
solely  by  that  state,  doing  business  therein,  its  principal  officers  resident  there,  and  its  rail- 
road, the  great  instrument  of  all  its  operations,  lying  wholly  in  that  state,  this  company  is  a 
citizen  of  New  Jersey  in  so  far  as  an  artificial  being  can  become  such.  If  any  company  can 
be  in  the  sense  of  the  constitution  a  citizen  of  a  sovereign  state,  the  Camden  and  Amboy 
Railroad  Company  is  a  citizen  of  New  Jersey,  and  the  plaintiff  being  confessedly  a  citizen 
of  Pennsylvania,  the  jurisdiction  of  the  circuit  court  would  follow  as  a  necessary  conse- 
quence. The  suit  might  have  been  brought  in  that  court  in  the  first  instance,  and  is  remov- 
able there  at  the  instance  of  the  defendant. 

"  But  can  a  corporation  be  a  citizen  ?  For  general  purposes  it  is  impossible.  The  rights 
and  privileges  guarantied  to  citizens  in  the  federal  constitution  are  inconsistent  with  the 
nature,  properties  and  purposes  of  corporations.  Take,  for  instance,  that  provision  of  the 
fourth  articles,  'that  the  citizens  of  each  state  shall  be  entitled  to  all  privileges  and  immunities 
of  citizens  of  the  several  states.'  If  corporations  created  by  state  authority  were  held  to  be 
within  the  provision,  their  rights  and  powers  would  no  longer  be  measured  by  the  grants  of 
their  charters,  but  by  the  constitutional  rights  of  an  American  freeman  ;  they  would  over- 
run state  lines,  seize  upon  political  power,  and  ultimately  devour  one  another. 

"The  framers  of  the  federal  constitution  were  well  acquainted  with  corporations.  They 
existed  in  England  and  in  several  of  the  states,  and  whilst  no  power  to  create  them  was 
expressly  delegated  to  Congress,  no  restraint  was  imposed  on  the  power  of  the  states  to  mul- 
tiply them  indefinitely.  They  were  left  out  of  the  federative  system  altogether,  and  that, 
doubtless  by  design,  and  on  good  reason,  and  not  by  accident.  So  was  the  word  citizen 
well  understood  as  it  is  now  understood,  to  mean  a  human  being — a  natural  person  cap- 
able of  acting,  contracting,  suing  and  being  sued  without  legislative  aids — a  person  of  whom 
allegiance  is  predicable,  and  who,  maybe  guilty  of  treason.  In  all  these  points  and  many 
others,  corporations  are  distinguishable  from  citizens,  and  no  body  of  men  probably  were 
ever  assembled  on  earth  who  understood  the  distinction  better,  or  were  more  capable  of 
expressing  their  thoughts  accurately,  than  the  framers  of  the  Constitution  of  the  United 
States.  When  the3''  used  the  word  citizen  to  define  the  character  of  the  parties  who  might 
resort  to  the  judicial  power  of  the  Union,  did  they  then  mean  corporations?  The  received 
rules  of  interpretation  would  require  us  to  understand  the  same  word  in  the  same  sense 
throughout  the  instrument,  if  not  controlled  in  certain  places  by  the  context,  and  if  the 
word  citizen,  when  used  in  the  fourth  article  did  not  include  corporation,  how,  it  might  be 


FROM  INFERIOR  COURTS.  418 

asked,  can  it  bo  construed  in  tho  tliird  article  to  embrace  them?  There  is  nothing  in  the 
context  of  either  article  to  impart  a  shade  of  meaning  to  the  word  difTerent  from  the  common 
understanding  of  its  sense.  It  would  seem  to  me  to  mean  the  same  thing  in  both  articles, 
and  in  both  to  mean  natural  and  not  artificial  persons. 

"  For  these  reasons,  and  others  which  it  is  not  worth  while  to  take  time  to  state,  I  should 
be  very  ajjt,  if  the  question  were  new,  to  reach  the  conclusions  so  repeatedly  stated  and 
ably  defended  by  the  dissentient  members  of  tho  .Supreme  Court  of  the  United  States,  whea 
cases  involving  the  question  have  been  before  that  tribunal ;  but  sitting  here  as  a  judge  in 
a  state  court,  I  am  not  to  follow  dissenting  opinions,  nor,  on  a  constitutional  question,  my 
own  ideas  of  the  meaning  of  the  organic  law,  but  am  to  take  the  instrument  in  the  sense  ia 
•which  it  is  received  by  the  majority  of  the  Hupreme  Court  of  the  United  States. 

"Among  the  judicial  tribunals  of  the  country,  if  not  in  other  dejiartments  and  places, 
that  court  is  the  supreme  and  final  arbiter  of  questions  under  the  federal  constitution.  Tho 
respect  entertained  for  the  members  of  that  bench  makes  the  duty  of  following  them,  on  a 
constitutional  question,  easy  and  pleasant,  which  the  theory  of  the  government  makes  im- 
perative. 

"  In  the  case  of  the  Dank  of  the  United  States  v.  Deveatix,  5  Cranch,  Gl,  decided  in  1809, 
the  record  contained  an  averment  that  the  phiintifTs  were  citizens  of  the  State  of  Pennsjd- 
vania,  and  that  the  defendants  were  citizens  of  (Jeorgia.  The  defendants  pleaded  to  tho 
jurisdiction  that  the  body  corporate  was  not  comjjetent  to  sUe  in  the  Circuit  Court  of  the 
United  States.  The  Supreme  Court  overruled  the  plea,  and  sustained  the  jurisdiction,  not 
on  the  ground  that  corporations  were  citizens,  for  this  Chief  Justice  Marshall  most  empha- 
tically denied,  but  on  the  ground  that  the  mcinhcrs  of  tho  corporation,  who  were  natural 
persons,  and  the  substantial  parties  on  the  record,  were  citizens  of  Pennsylvania,  and  tho 
court  felt  itself  authorized  to  look  to  the  character  of  the  individuals  composing  tho  corpo- 
ration, for  the  purpose  of  sustaining  a  jurisdiction  which  had  been  often  exercised  without 
question. 

"  In  Sullivan  v.  The  Fulton  Steamboat  Company,  6  Wheaton,  450,  the  defendants  were  de- 
scribed as  a  corporate  body,  incorporated  by  the  legislature  of  New  York,  and  it  was  held 
that  the  court  had  not  jurisdiction. 

"  The  Bank  of  Vicksburg  v.  Slocomb,  14  Peters,  60.  Here  a  Mississippi  corporation  was 
sued  by  a  citizen  of  Louisiana,  and  the  successful  plea  to  the  jurisdiction  was  that  two  of 
the  corporators  were  citizens  of  Louisiana. 

"That  plea,  admitted  by  the  demurrer,  was  held  sufficient  to  oust  the  jurisdiction.  Thi8 
case  interprets  that  of  the  ])ank  v.  Veveauz,  where  Ch.  J.  Marshall  ruled  that  the  court 
would  look  beyond  the  charter  to  the  members  of  the  corporation,  without  defining  what 
was  meant  by  members — whether  corporators  merely,  or  official  and  governing  members. 
Taking  tho  two  cases  together,  tho  doctrine  is,  that,  if  all  the  corporators  are  citizens  of 
the  state  from  which  tho  charter  of  incorjioration  is  obtained,  the  corporation  raa,y  bo  sued 
in  the  Circuit  Court  by  a  citizen  of  another  state,  but  if  any  of  them  are  citizens  of  the 
state  to  which  tho  corporation  belongs,  jurisdiction  is  denied.  This  case  in  14  Peters  also 
rules  what  has  been  admitted  in  subseciuent  cases,  that  the  act  of  Congress  of  28th  Feb., 
1839,  wrought  no  change  in  the  jurisdiction  of  the  Circuit  Courts  as  respects  tho  character 
of  parties. 

"  The  doctrine  deduced  from  these  two  cases  (Deveaux's  and  Slocomb's)  is  in  exact  accord- 
ance with  that  laid  down  by  Chancellor  Kent,  as  the  result  of  all  the  authorities,  (1  Com. 
378,)  and  by  Judge  Slori/,  in  the  Bank  of  Cumberland  v.  M'illi-f,  3  Sumner,  472.  In  this  case, 
a  bank  incorporated  by  the  State  of  Maine,  sued  a  customer  who  was  a  citizen  of  .Massa- 
chusetts, and  was  turned  out  of  the  Circuit  Court  because  a  citizen  of  Boston  was  the  owner 
of  ten  shares  of  the  capital  stock  of  the  bank.  See  also  1  Peters,  238.  3  Dallas,  382.  4 
Dallas,  708;  and  3  Cran.  267. 

"1  come  now  to  the  case  of  the  Louuiville  Railroad  Company  v.  Letfon,  2  Howard,  497. 
Letson,  a  citizen  of  New  York,  sued  in  the  Circuit  Court  of  the  United  States  for  the  Dis- 
trict of  South  Carolina,  the  Louisville,  Cincinnati  and  Charleston  Railroad  Com[iany,  a 
corporation  created  by  and  transacting  business  in  the  State  of  South  Carolina.  The  juris- 
diction was  objected  to  on  several  grounds. 

"  1st.  That  all  the  members  of  said  corporation  were  not  citizens  of  South  Carolina,  but 
that  two  of  them  were  citizens  of  North  Carolina. 

"  2d.  That  South  Carolina  herself  was  a  member  of  said  corporation. 

"  3d.  That  the  Bank  of  Charleston,  another  South  Carolina  corporation,  was  a  member 
of  the  corporation  sued,  and  that  two  citizens  of  New  York  were  members  of  the  said  bank- 
ing corporation. 

"  4th.  That  the  Charleston  Insurance  and  Trust  Company  was  also  a  member  of  the  cor- 
poration sued,  and  that  three  members  of  said  Trust  Company  were  citizens  of  New  York. 

"  These  objections  were  all  overruled,  the  cause  tried,  and  judgment  rendered  by  the 
Circuit  Court  for  the  plaintiff,  and  the  judgment  affirmed  in  the  Supreme  Court,  after  argu- 
guments  by  counsel,  which  are  remarkable  for  their  fulness  and  ability. 

"  Mr.  Justice  Wayne  delivered  the  opinion  of  the  Supreme  Court,  aud  after  reviewing  and 


418  OF  TUE  REMOVAL  OF  CAUSES,  ETC. 

limiting  the  cfTect  of  prior  decisions,  indicated  the  ground  on  which  the  decision  in  this 
case  WHS  iiltogether  rested  by  the  following  language:  'It  is,  that  a  corporation  created  by 
and  doing  business  in  a  particular  state,  is  to  be  deemed  to  all  intents  and  purposes  as  a 
person,  although  an  artificial  person,  an  inhabitant  of  the  same  state,  for  the  purposes  of 
its  incorporation  capable  of  being  treated  as  a  citizen  of  that  state  as  much  as  a  natural 
person.  Like  a  citizen,  it  makes  contracts;  and  though  in  regard  to  what  it  may  do  in 
some  particulars,  it  ditFers  from  a  natural  person,  and  in  this  especially,  the  manner  in 
which  it  can  sue  and  be  sued,  it  is  substantially  within  the  meaning  of  the  law,  a  citizen  of 
the  state  which  created  it,  and  where  its  business  is  done, /or  all  the  purposes  of  suing  and 
being  ^ued.' 

"  Here,  it  will  be  observed,  there  was  no  looking  beyond  the  charter  to  fix  the  citizenship 
of  the  members.  Incorporation  by  and  doing  business  in  a  particular  state,  constitute  citi- 
zenshii)  '  for  all  the  purposes  of  suing  and  being  sued.'  These  words  seem  to  be  added  by 
way  of  qualification,  but  when  it  is  considered  that  the  Constitution  and  act  of  Congress 
use  the  word  citizen  in  connection  with  the  judicial  powers  of  the  courts  only  for  the  pur- 
pose of  defining  who  may  sue  and  be  sued,  it  is  apparent  that  the  words  of  the  learned 
judge  are  no  qualification  of  the  constitutional  and  legislative  rule. 

"  The  next  case  is  Marahall  v.  The  Baltimore  and  Ohio  Railroad  Company,  IG  Howard,  314 — 
a  suit  by  a  citizen  of  Virginia  against  a  corporation  which  was  described  as  a  '  body  cor- 
porate by  an  act  of  the  General  Assembly  of  Maryland,'  and  without  any  averment  as  to 
the  place  of  business  or  residence  of  officers  or  corporators.  The  jurisdiction  of  the  Cir- 
cuit Court  was  affirmed  in  the  Supreme  Court  by  an  opinion  by  Grier  Justice,  who  cited 
with  approbation  Lelson's  case,  and  the  opinion  of  Mr.  Justice  Catron,  in  Bundle  v.  The 
Delaware  and  Raritan  Canal  Company,  14  How.  80. 

"  The  point  of  distinction  between  Letson's  case  and  that  oi  31  ar shall  is,  that  in  the  former 
it  was  averred  of  record  that  the  corporation  was  doing  business  in  the  state  which  created 
it;  in  the  latter  it  was  not.  In  the  former,  the  language  of  the  judge  implies  that  the  cor- 
poration, in  its  artificial  and  legal  character,  is  to  be  regarded  as  a  citizen  for  purposes  of 
suit ;  in  the  latter,  that  the  officers,  who  are  curators,  or  trustees  of  the  corporation,  are  the 
substantial  party  in  a  suit,  and  that  their  residence  and  citizenship  determines  the  juris- 
diction. In  this  respect,  the  opinion  in  Marshall's  case  is  coincident  with  what  Catron,  Jus- 
tice, said  in  Bundle  v.  The  Canal  Company. 

"'My  opinion  is,  and  long  has  been,'  said  the  learned  judge,  'that  the  mayor  and  alder- 
men of  a  city  corporation,  or  the  president  and  directors  of  a  bank,  or  of  a  railroad  com- 
pany (and  of  other  similar  corporations,)  are  the  true  parties  that  sue  and  are  sued  as 
trustees  and  representatives  of  the  constantly  changing  stockholders.  If  the  president  and 
directors  are  citizens  of  the  state  where  the  corporation  was  created,  and  the  other  party 
to  the  suit  is  a  citizen  of  a  different  state,  or  a  citizen  or  subject  of  a  foreign  government, 
then  the  courts  of  the  United  States  can  exercise  jurisdiction  under  the  third  article  of  the 
constitution.  In  this  sense  I  understood  Letson's  case,  and  assented  to  it  when  the  decision 
was  made  ;  and  so  it  is  understood  now.' 

"These  views  were  repeated  by  Judge  Catron,  in  a  dissenting  opinion,  in  Marshall's  case, 
and  his  dissent  in  that  case  was  rested  on  the  ground  that  there  was  no  averment  on  re- 
cord of  the  citizenship  of  the  president  and  directors.  According  to  Mr.  Justice  Grier, 
speaking  for  the  majority,  this  is  to  be  inferred  from  an  averment  of  the  act  of  incorpora- 
tion. 

"  If  Letson's  case  is  to  be  received  as  Judge  Catron  understood  it,  the  result  of  all  the 
cases,  the  earlier  taken  in  connection  with  the  modern,  may  be  stated  thus: — 

"  1.  A  corporation  is  not  per  se  a  citizen  within  the  meaning  of  the  third  article  of  the 
constitution. 

"  2.  But  when  it  sues  oris  sued,  the  governing  officers,  by  whatever  name  called,  are  the 
substantial  party ;  and  if  they  are  citizens  of  the  state  which  created  the  corporation,  and 
the  other  party  is  a  citizen  of  another  state,  the  federal  courts  have  jurisdiction. 

"  This  is  according  to  Judge  Marshall's  principle,  of  looking  beyond  the  charter  to  the 
citizenship  of  members  of  the  corporation,  but  it  defines  the  members  to  be  looked  to  dif- 
ferently from  what  was  done  in  the  Vicksburg  Bank  v.  Slocum.  It  is  no  longer  the  stock- 
holders or  corporators  in  general,  but  the  president  and  directors,  to  whose  citizenship  the 
court  will  look. 

"  This  rapid  review  of  the  cases  is  sufficient  to  show  that,  if  the  question  before  me  had 
arisen  whilst  the  doctrine  obtained  in  the  Supreme  Court,  which  was  expounded  in  the 
Vicksburg  Bank  case,  the  fact  alleged  here,  and  not  controverted,  that  some  of  the  stock- 
holders of  the  Camden  and  Amboy  Company  are  resident  in  and  citizens  of  Pennsylvania, 
would  be  decisive  against  the  jurisdiction  of  the  Circuit  Court.  That  doctrine  passed  into 
the  text  of  Chancellor  Kent  and  other  writers,  and  many  cases  were  ruled  upon  it.  It  was, 
nevertheless,  subject  to  serious  objections,  as  may  be  seen  by  the  criticisms  of  counsel  and 
judges  in  subsequent  cases,  and  particularly  in  Letson's  case.  Whether  the  doctrine  that 
was  substituted  for  it  will  not  be  found  more  objectionable,  and  the  court  be  brought  to 
the  broad  ground  of  declaring,  either  that  corporations,  as  such,  are  citizens  within  the 


OF  THE  DECLARATION.  418 

meaning  of  the  constitution,  or  that  they  are  not  citizens,  and  cannot  bo  parties  to  litiga- 
tion in  the  federal  courts,  are  suhjects  not  fit  for  present  speculation,  and  which  must  await 
the  developments  of  judicial  iiistor}'. 

"My  present  duty  is  to  apply  the  law  as  I  find  it  settled  now.  And,  as  I  understand  it, 
the  fact  tluit  some  of  the  stockholders  of  the  company  resiile  in  the  same  state  as  the  [dain- 
tiff,  is  a  circumstance  of  no  importance  whatever.  Though  they  may  be  affected  by  the 
judgment  in  the  case,  they  are  not  to  be  considered  parties  to  the  record.  The  president 
and  directors  are  the  substantial  parties  sueil,  under  the  shadow  of  tiie  corporate  name, 
and  I  am  to  i)resume  them  citizens  of  New  Jersey,  because  it  is  shown  that  the  company 
was  incorporated  by  that  state,  and  is  doing  business  therein.  Nor  is  that  presumption 
rebutted  by  their  holding  property  and  transacting  business  through  agencies  in  Pennsyl- 
vania. The  jurisdiction  of  the  Circuit  Court  results,  therefore,  out  of  the  citizenship  of 
these  governing  members  of  the  corporation. 

"  Under  the  act  of  Congress,  it  is  to  be  made  to  appear  to  the  satisfaction  of  this  court, 
that  the  matter  in  dispute  exceeds  five  hundred  dollars,  exclusive  of  costs.  An  affidavit  to 
that  elfect  is  appended  to  the  jietition  of  the  company,  which,  though  objected  to,  I  deem 
sufTu-icnt,  and  I  also  consider  the  surety  offered,  '  good  and  sufiicieiit.' 

"  It  is  therefore  ordered  that  the  prayer  of  the  jietitioner  be  granted,  that  the  security  bo 
accepted,  and  that  this  court  will  proceed  no  further  in  the  cause." 


*CH  AFTER    XVII.  [  *419  ] 

Of  the  Declaration. 

IIavino  stated,  in  the  preceding  chapters,  the  various  means  of  bringing 
the  defendant  into  court,  when  at  large,  in  actions  commenced  by  original 
•writ,  or  by  bill  of  Middlesex  or  latitat,  in  the  King's  Bench,  or  capius 
quare  clausum  fregit,  &c.  in  the  Common  Pleas,  or  by  venire  facias^ 
subpoena,  or  quo  minus,  in  the  Exchequer,  and  also  whatever  is  peculiar 
to  the  proceedings  in  actions  by  or  against  attorneys  and  officers,  who  are 
supposed  to  be  already  in  court,  and  prisoners  in  actual  custody  of  the 
sheriff,  &c.  or  of  the  marshal  of  the  King's  Bench  or  warden  of  the  Fleet 
prison,  with  the  removal  of  causes  from  inferior  courts,  I  shall,  in  the  pre- 
sent chapter,  treat  of  the  declaration  in  ordinary  cases  ;  where  the  defend- 
ant, having  been  arrested  upon  or  served  with  process,  cither  appears  and 
puts  in  and  perfects  special  bail,  when  necessary,  or  files  common  bail,  or 
an  appearance  is  entered  or  common  bail  filed  for  him  by  the  plaintiff, 
according  to  the  statutes. (a) 

The  declaration  is  a  specification,  in  legal  form,  of  the  circumstances 
which  constitute  the  cause  of  action  ;  and,  in  actions  by  original,  is  an  ex- 
position of  the  writ,  with  the  addition  of  time,  place,  and  other  circum- 
stances:(/'')  and  it  is  either  in  chi(f,  or  l>g  the  bye.  A  declaration  in  chief 
is  at  the  suit  of  the  same  plaintiff,  for  the  principal  cause  of  action,  or 
that  for  which  the  writ  was  sued  out :  A  declaration  by  the  bye  is  at  the 
suit  of  a  different  plaintiff,  or  of  the  same  plaintiff  for  a  different  cause  of 
action. 

The  plaintiff  can  in  no  case  declare  against  the  defendant,  until  the 
return  (lay  of  the  Avrit :  and,  except  against  attorneys  or  prisoners,  the  decla- 
ration  cannot  be  delivered  or  filed  absolutely,  until   the  defendant  has 

(a)  12  Geo.  I.  c.  29,  g  1,  altered  by  5  Goo.  TI.  c.  27.  43  Geo.  III.  c.  46,  ?  2.  45  Geo.  Ill- 
c.  124,  ?  3.  51  Geo.  III.  c.  124,  g  2  &  7  &  8  Geo.  IV.  c.  4  &  130,  c.  5,  §  71,  c.  71,  I  2,  5.  Atite, 
114,  120,21  ;   228,241,2,3,  4. 

(6)  Co.  Lit.  303  ;  and  see  1  Chit.  PI.  4  Ed.  222. 


419 


OF  THE  DECLARATION. 


appcareil,  and  put  in  and  perfected  special  bail,  when  neceseary,  or  filed 
common  bail,  or  an  appearance  has  been  entered  or  common  bail  filed  for 
him  by  the  plaintiff",  accordin^j  to  the  statutes,  (c)  So,  in  an  inferior  court,  a 
custom  to  declare  against  a  defendant,  before  an  appearance  entered  by  him, 
or  by  some  person  for  him,  is  bad  in  law.((i)  But  when  the  defendant  has 
been  arrested  upon,  or  served  with  a  copy  of  process  against  his  person, 
the  plaintiff  may  declare  de  bene  esse,  or  conditionally/,  on  the  return  of  the 
writ,  before  the  defendant  has  appeared,  or  put  in  and  perfected 
[  *420  ]  special  bail,  &c. :  and  the  declaration,  or  copy  of  the  bill,  is  usually 
*delivered  before  appearance,  in  actions  against  attorneys  and 
officers  of  the  court  of  King's  Bench,  and  'prisoners  in  actual  custody  of 
the  sheriff",  marshal,  or  warden. (aa)  When  there  are  several  defendants, 
ao-ainst  whom  it  is  intended  to  proceed  jointly,  the  plaintiff"  cannot  declare 
until  they  are  all  in  court  :{aa)  And,  in  cases  of  contract,  where  bailable 
process  is  taken  out  against  several  defendants,  for  a  joint  cause  of  action, 
the  plaintiff"  cannot  declare  against  them  severally  •,{b)  but  it  is  otherwise 
in  the  Common  Pleas,  where  the  process  hnot  bailable  ;{cc)  for  in  that 
case,  we  have  seen,(t^cZ)  the  plaintiff"  is  allowed  to  join/owr  defendants,  for 
separate  causes  of  action,  in  one  writ,  and  to  declare  against  them  seve- 
rally ;  and  if  they  do  not  appear,  he  may  bring  them  into  court,  by  enter- 
ing an  appearance  for  them,  according  to  the  statute.  So,  in  actions  of 
tort,  a  party  suing  out  bailable  process  against  several  defendants  jointly, 
may  it  seems  declare  separately  against  one  of  them.(e) 

In  actions  by  bill  in  the  King's  Bench,  if  the  defendant  appeared  per- 
sonally at  the  return  of  the  writ,  the  plaintiff"  was  anciently  obliged  to  de- 
clare against  him  within  three  days  ;(/)  or,  if  he  appeared  by  attorney,  the 
plaintiff  must  have  declared  before  the  end  of  the  term.(^)  Afterwards, 
the  time  for  declaring  was  extended;  and  a  rule  was  made  by  Coke,  Ch.  J. 
and  the  court,  in  the  reign  of  James  the  first,  that  the  plaintiff"  ought  to  de- 
clare the  same  term,  or  the  term  after  bail  was  filed  ;(7i)  and  in  a  subse- 
quent case,  the  course  of  the  court  was  certified  by  the  secondary  and  clerks 
to  be,  that  no  declaration  should  be  taken  upon  any  bail,  but  within  three 
terms  after  the  bail  filed ;  and  it  was  said  that  Lord  Ch.  J.  Popham  and 
the  court,  in  his  time,  made  an  express  order  accordingly  ;  for  before  then 
the  usage  was  often  otherwise :  and  the  court  in  that  case  held  it  to  be  a 
very  good  course,  and  that  it  should  not  be  altered. (z)  In  the  case  oi pri- 
soners, the  plaintiff,  agreeably  to  this  practice,  was  allowed  three  terms 
after  the  arrest,  to  remove  the  defendant,  in  order  to  charge  him  with  a  de- 
claration.(^)  At  length,  by  the  statute  13  Car.  II.  stat.  2,  c.  2  §  3,  the 
time  for  declaring  upon  a  bill  of  Middlesex  or  latitat,  in  the  King's  Bench, 

(c)  Lofft,  333.  2  Durnf.  &  East,  719;  and  see  Forrest,  33.  2  Chit.  Rep.  165. 

((f)  3  Barn.  &  Cres.  772.  5  Dowl.&  Ryl.  719,  S.C. 

(aa)  For  the  distinctions  as  to  declaring  absolutely  a.x\A  de  bene  esse,  in  chief  and  by  the  br/e, 
see  the  valuable  Suggestions  of  Mr.  Serjeant  E.  Laives,  for  some  alterations  of  the  law,  on 
the  subjects  of  Practice,  Pleading,  and  Evidence,  &c.,  p.  16. 

(i)  5  Durnf.  &  East,  722.  4  East,  589.  1  Maule  &  Sel.  55.  3  Dowl.  &  Ryl.  247,  K.  B.  2  Blac. 
Rep.  759.  1  Bos.  &  Pul.  49.  2  New  Rep.  C.  P.  82.  1  Marsh,  274.  7  Moore,  301,  362.  1  Bing. 
48,  68,  S.  C.  C.  P.  Forrest,  31,  Excheq. 

(cc)  1  Bos.  &  Pul.  19,  49 ;  but  see  R.  E.  8  Geo.  IV.  K.  B. 

(dd)  Ante,  148. 

(e)  3  Barn.  &  Cres.  734.  5  Dowl.  &  Ryl.  622,  S.  C. 

(  f)  Stat.  8  Eliz.  c.  2,  ^  2.  Hans.  Infrod.  2.  (g)  Gilb.  C.  P.  40. 

(/i)  3  Bulst.  214;  and  see  Hans. /n^rod  2.  (i)  Cro.  Jac.  620,  21.  Ante,Al3,{c). 

(k)  2  Keb.  478. 


OF  THE  DECLARATION.  420 

was  limited  to  the  end  of  the  next  term  after  the  defendant's  appearance; 
and  a  rule  was  made  by  Jlale,  Ch.  J.  that  the  court  would  discharge  ^jn- 
soners  on  common  bail,  in  two  terms  :{l)  and  in  the  time  of  Jfolf,  Ch.  J. 
the  course  of  the  court  was,  that  if  a  declaration  were  not  delivered  on  or 
before  the  last  day  of  the  second  term,  scdcnte  curid,  the  defend- 
ant *might  sign  a  non  pros  ;  and  if  he  did  not  immediately  sign  [  '421  ] 
it,  though  he  might  afterwards  receive  a  declaration,  yet  he  was 
not  compellable  to  do  so,  but  he  might  well  refuse  h;{ti)  and  accordingly, 
as  the  practice  of  the  court  then  stood,  if  the  declaration  was  tendered  at 
any  time  after  the  end  of  the  second  term,  and  before  the  non  pros  was 
signed,  the  defendant  was  not  bound  to  accept  it,  but  might  sign  his  non 
pros  at  any  time  after  the  end  of  the  second  term.(//^>)  ]>ut  Mr.  Justice 
BuUcr  having  expressed  an  opinion,  that  by  the  general  rules  of  law,  a 
plaintiff  must  declare  against  a  defendant  within  twelve  months  after  the 
return  of  the  writ,  though,  by  the  rules  of  the  court,  if  he  do  not  deliver  his 
declaration  within  ttvo  terms,  the  defendant  may  sign  a  judgment  of  non 
pros  ;(cc)  it  is  now  settled,  agreeably  to  that  opinion,  that  unless  he  take  ad- 
vantage of  the  plaintift"s  neglect,  by  signing  a  judgment  of  non  jyros^  the 
plaintiff  may  deliver  his  declaration,  at  any  time  within  a  year  next  after 
the  return  of  the  writ.((Z) 

In  the  Common  Pleas,  or  in  actions  by  original  in  the  King's  Bench, 
when  the  proceedings  were  ore  tenus  at  the  bar  of  the  court,  the  plaintiff 
was  anciently  demandable  on  the  defendant's  appearance;  and  if  he  did 
not  appear,  or  would  not  count  against  him,  he  might  have  been  imme- 
diately nonsuited. (e)  But  the  parties  by  consent,  might  have  obtained  a 
day  before  declaration,  which  was  called  a  dies  datus  prece  p»artium  ;{f) 
for  the  consent  of  the  defendant  exempted  the  plaintift'  from  the  necessity 
of  declaring  immediately.  In  that  case,  if  the  defendant  had  made 
default  at  the  day  given,  since  there  was  no  declaration,  the^plaintifT  could 
not  have  had  judgment,  but  was  obliged  to  bring  him  in  again  by  pro- 
cess ;((/)  for  none  could  have  judgment,  but  upon  complaint  exhibited 
against  the  defendant  whilst  in  court.  But  after  declaration,  if  the 
defendant  had  made  default,  judgment  was  given  against  him  ;  because, 
having  deserted  the  court,  he  ceased  to  oppose  the  plaintiff's  demand, 
and  so  submitted  that  the  court  should  give  judgment. (/<) 

In  process  of  time,  when  the  proceedings  were  no  longer  ore  tenus,  but 
the  defendant  was  at  liberty  to  appear  by  attorney,  the  defendant  could 
not  have  nonsuited  the  plaintiff,  in  the  Common  Pleas,  without  giving  a 
rule  to  declare,  and  calling  for  a  declaration.  If  the  writ  were  returna- 
ble in  five  weeks  of  Easter,  or  on  the  last  return  of  any  term,  the  defend- 
ant, having  given  a  rule,  and  called  for  a  declaration,  might  have  entered 
a  nonsuit,  if  it  were  not  delivered /our  days  or  more  before  the  essoin-day 
of  the  ensuing  term:(e)  and  if  the  writ  were  returnable   on  any  other 

{I)  Id.  812. 

(a)  12  Mod.  217.  (ifi)  R.  M.  10  Geo.  II.  reg.  2,  (i),  K.  B. 

(ccj  2  Durnf.  &  East,  112. 

{d)  Id.  ibid.  3  Durnf.  &  East,  123,  4.  5  Durnf.  &  East,  35.  7  Durnf.  k  East,  7  j  but  see  2 
New  Rep.  C.  P.  404. 

(e)  2  Hen.  IV.  15,  23.  22  Edw.  IV.  1. 

(/)  Hardr.  365.  Gilb.  C.  P.  41,  2  ;  and  see  Doc.  PI.  222. 

(g)  19  lien.  VIII.  6  Moor,  79.  3  Leon.  14.  BcnL  &  Dalig,  153,  S.  C.  6  Mod.  6,  7,  8.  1 
Salk.  21G,  S.  C. 

(A)  Gilb.  G.  P.  40,  41.  (i)  R.  M.  1654,  g  15,  K.  B.  &  C.  P. 


421  OF  THE  DECLARATION, 

return,  the  defcnrlant,  having  in  like  manner  given  a  rule,  and  called  for  a 
declaration,  might  it  seems  have  entered  a  nonsuit,  if  it  were  not  deli- 
vered some  time  during  the  same  term.(/c)  But  if  the  defend- 
[  *422  ]  ant  had  appeared  the  first  term,  *and  given  no  rule  to  declare, 
the  defendant's  attorney  might  have  been  compelled  to  accept  a 
declaration,  the  second  term,  -with  an  imparlance ;  and  the  declaration 
might  have  been  entered  as  of  that  term,  with  an  imparlance  over  to  the 
next,  or  in  the  first  term  with  an  incijntur,  as  the  case  required. (a)  In 
such  case  however,  if  the  plaintiff  had  not  declared  the  second  term,  a 
nonsuit  might  have  been  entered  at  the  end  of  that  term,  upon  a  continu- 
ance over  by  dies  datus,  but  not  the  third  term  or  after. (a) 

At  length  it  was  settled,  agreeably  to  the  statute  13  Car.  IL  stat.  2,  c. 
2,  §  3,  that  "upon  all  process  returnable  the  first  or  any  other  return  in 
any  term,  the  plaintifi"  shall  have  liberty,  to  the  end  of  the  next  ensuing 
term,  to  deliver  his  declaration  to  the  defendant's  attorney,  or  leave  the 
same  in  the  oiBce :  and  the  defendant's  attorney  having  entered  his  ap- 
pearance with  the  proper  officer,  as  of  that  term  in  which  the  process  was 
returnable,  and,  in  the  Common  Pleas,  given  a  rule  to  declare  in  the  pro- 
per office,  at  the  end  of  the  ensuing  term,  or  in  four  days  after  the  end 
thereof,  and  called  on  the  plaintiff's  attorney  or  clerk  in  court,  if  he  can 
be  found ;  the  defendant  may,  at  any  time  in  the  vacation  of  such  ensu- 
ing term,  after  the  rule  for  declaring  is  out,  sign  his  no7i  pros  for  want  of 
a  declaration,  and  afterwards :  and  the  plaintiff  shall  not,  without  leave 
of  the  court,  have  any  longer  time  to  declare,  other  than  the  time  to  be 
limited  by  the  defendant's  rule.  "(5)     But  if  the  plaintiff  be  not  called 
upon  by  rule  to  declare,  he  hath  all  the  vacation  of  the  second  term  to 
declare  m.[c)    If  the  plaintiff  do  not  declare  in  that  time,  or  obtain  a 
rule  for  time  to  declare,  his  cause  is  out  of  court ;  and  if  he  afterwards 
declare,  the  court  will  set  aside  the  declaratian  for  irregularity. (c?)     So, 
where  a  writ  was  returnable  the  last  return  of  Trinity  term,  and  an 
appearance  being  entered,  the  plaintiff  proceeded  no  further,  nor  obtained 
a  rule  for  time  to  declare,  upon  which  the  defendant  in  Hilary  term, 
being  the  third  term  after  the  return  of  the  writ,  gave  the  plaintiff  a  rule 
to  declare,  and  for  want  of  a  declaration  signed  judgment  of  nan  pros ; 
the  court  of  Common  Pleas  held  it  to  be  irregular,  because  the  plaintiff 
by  his  own  default  was  out  of  court  at  the  end  of  the  second  term,  and 
the  defendant  therefore  could  not  rule  him  to  declare  but  at  the  end  of 
the  term,  or  within  four  days  after. (e)    And  where  one  of  two  defendants 
having  been  holden  to  bail  in  Trinity  term,  the  plaintiff  proceeded  to  out- 
lawry against  the  other,  and  delivered  a  declaration  against  the  former  on 
the  first  day  of  Easter  term  following,  not  having  obtained  a  rule  for  time 
to  declare,  it  was  holden  that  the  cause  was  out  of  court,  and  the  bail  enti- 
tled to  an  exoneretur.if) 

When  the  defendant  is  outlaioed  before  judgment,  the  original  is  deter- 
mined, so  that  the  plaintiff  cannot  declare  thereon  while  the  outlawry 
remains  in  force,  but  is  put  to  a  new  action  :{g)   And  if  two  defend- 

{k)  Id.  §  15,  C.  P.  (rt)  R.M.  164,  ^  15.  K.  B.  §  14,0.  P. 

(6)  R.  H.  9  Ann.  reg.  3,  C.  P. ;  and  see  R.  M.  10  Geo.  II.  reg.  2,  [b),  K.  B. 

(c)  Gas.  Pr.  C.  P.  13.   Pr.Reg.  121,  S.  C. 

(rf)  5  Taunt.  649  ;  and  see  2  Blac.  Rep.  876,  7.    3  Bos.  &  Pul.  221.   4  Taunt.  715. 

(e)  Allen  V.  milward,  H.  30  Geo.  III.  C.  P.  Imp.  C.  P.  7  Ed.  533,  4. 

(/)  2  New  Rep.  C.  P.  404.  (g)  Cro.  Eliz.  706.  W.  Jon.  442. 


OF  THE  L»ECLA11ATI0X.  422 

ants  are  *jointly  sued,  and  one  appears,  ami  the  other  makes  [  *i2o  ] 
default  and  is  outLiwed,  he  who  appears  shall  be  charged  with 
the  whole. («)  But  if  a  defendant  be  outlawed,  and  he  reverse  the  out- 
lawry and  give  bail,  as  he  ought,  the  jjlaintiff  may  declare  against  him 
within  tioo  terms  after  the  outlawry  is  reversed;  and  if  he  do  not  declare 
within  that  time,  the  declaration  may  be  refused,  but  the  plaintiff  shall 
not  be  non-prossed  \{hh)  And  it  seems,  that  after  the  reversal  of  an  out- 
lawry, the  plaintiff  has  his  election,  either  to  declare  upon  the  first  origi- 
nal, or  to  sue  out  a  new  one.(6*c)  In  declaring  against  A.  upon  a  joint 
contract  by  A.  and  B.  it  is  not  enough  to  allege  that  B,  was  in  due  man- 
ner outlawed,  without  adding  that  he  was  outlaweil  in  that  suit  :{dd)  But 
an  allegation  that  a  co-defendant  was  outlawed  by  due  course  of  law,  at 
the  suit  of  the  plaintiff,  in  this  i^lea  and  suit,  is  sufficient,  without  a  jyrout 
patet  per  recordum.{ce) 

-  In  the  Common  Pleas,  the  course  of  that  court  is,  that  although  the  origi- 
nal be  laid  in  London,  for  expediting  the  outlawry,  yet  when  the  defendant 
comes  in,  the  plaintiff  may  declare  against  him  in  any  other  county,  be  the 
action  local  or  transitory  :(^)  And  where  a  wi'it  oi  capias  quare  clausum 
fregit  was  issued  against  two  defendants,  with  an  ae  etiam  in  debt,  upon 
which  one  of  them  was  arrested  and  put  in  bail,  and  the  plaintiff  proceeded 
to  outlawry  against  the  defendant,  on  an  original  writ  issued  against 
both,  and  afterwards  declared  against  the  former  defendant  only,  alleging 
that  he  was  outlawed  in  that  suit ;  the  court,  upon  reference  to  its  officers, 
held  that  these  proceedings  were  regular,  and  would  not  set  aside  the  decla- 
ration :(//)  observing,  that  it  was  founded  on  the  original,  on  which  one  of 
the  defendants  was  outlawed  ;  and  with  respect  to  the  writ  with  the  ac 
etiam,  on  which  the  other  defendant  was  arrested  and  put  in  bail,  that 
writ  was  issued  only  for  the  purpose  of  bringing  him  into  court,  and  having 
so  done,  it  had  answered  its  purpose ;  and  that  when  a  defendant  is  in 
court,  the  plaintiff  may  declare  against  him  for  any  cause  of  action  he  may 
think  proper.(/4)  In  a  subsequent  case,  they  would  not  entertain  a  motion 
made  on  behalf  of  a  defendant,  who  had  been  arrested  and  was  in  court  by 
his  bail,  which  went  to  impeach  an  outlawry  against  another  defendant, 
who  was  not  before  the  court. (2)  The  defendant  in  this  court  shall  have  his 
costs,  to  be  taxed  by  the  prothonotaries,  if  the  plaintiff  do  not  proceed 
within  tivo  terms  next  after  notice  of  the  reversal  of  the  outlawry. (7c) 

If  the  plaintiff  be  not  ready  to  declare,  before  the  end  of  the  next  term 
after  the  return  of  the  process,  he  may  obtain  a  side-bar  or  treasury  rule 
from  the  clerk  of  the  rules  in  the  King's  Bench, {/)  or  one  of  the  secondaries 
in  the  Common  rieas,(??t)  for  time  to  declare,  until  the  first  day  of 
the  *ensuing  term;  a  copy  of  which  rule  should  be  served  on  the  [  *424  ] 
defendant's  attorney,  or  stuck  up  in  the  King's  Bench  or  prothono- 
taries' office,  if  the  defendant  have  not  appeared :  And,  in  the  Common 
Pleas,  there  is  no  difference  in  this  respect,  between  a  rule  for  time  to  de- 

(o)  5  Co.  119,  {(i).  W.  Jon.  442  ;  but  seo  1  Maulc  &  Sel.  242. 

(W)  Cora.  Dig.  tit  Pleader,  C.  4. 

(cc)  W.  Jon.  443.  March.  9.    . 

(dd)  3  East,  144 ;  but  see  Co.  Lit.  128,  b,  352,  b. 

\ee)  7  East,  50.  (/)  3  Lev.  245. 

(ff)  2  Moore,  87.    8  Taunt.  187,  S.  C. 

(A)  2  Moore,  80.    8  Tauut.  189,  S.  C. ;  and  see  2  Moore,  301.    3  Taunt.  304,  S.  C. 

(»■)  2  Moore,  90.  (k)  R.  T.  33  Car.  IL  C.  P. 

(l)  Append.  Chap.  XVH.  §  1.  (m)  /(/.  §  2. 

Vol.  I.— 27 


424 


OF  THE  DECLARATION, 


clare  in  replevin,  and  in  other  actions.(a)  This  rule  cannot  in  general  be 
had,  where  the  defendant  is  a  prisoner.(6)  But  where,  on  a  writ  against 
three,  one  was  arrested  and  lay  in  gaol,  and  the  other  two  absconded,  the 
court  refused  to  discharge  the  prisoner ;  saying,  that  he  must  appear  for 
all,  or  lie  in  gaol  till  the  other  two  were  outlawed. (c)  In  such  case  how- 
ever, the  plaintiif,  in  the  Common  Pleas,  must  move  the  court,  or  apply 
to  a  judge,  for  time  to  declare  against  the  prisoner,  until  the  outlawry  or 
appearance  of  the  other  defendants  ;(cZ)  and  show  that  he  is  using  all  due 
diligence  in  proceeding  against  them.  If  the  plaintiff  be  still  unprepared, 
he  may  obtain  rules  for  further  time  to  declare,  from  the  beginning  to  the 
end  of  the  term,  and  from  the  end  of  one  term  to  the  beginning  of  another, 
alternately,  as  often  as  may  be  necessary.  But  after  several  rules  have 
been  obtained,  the  courts  will  make  a  peremptory  one,  for  the  plaintiff  to 
declare  before  the  end  of  the  term  in  which  the  motion  is  made.(e)  The 
rule  for  this  purpose,  in  the  King's  Bench,  is  absolute  in  the  first  instance, 
and  drawn  up  on  a  motion  paper  signed  by  counsel ;  but,  in  the  Common 
Pleas,  it  is  a  rule  to  show  cause:  And,  in  the  latter  court,  when  the 
plaintiff  does  not  declare,  after  having  obtained  time  for  that  purpose,  the 
defendant  may  sign  judgment  of  nonpros,  without  giving  a  rule  to  declare. (/) 
In  the  King's  Bench,  when  the  defendant  has  appeared  and  filed  bail 
upon  a  bill  of  Middlesex  or  latitat,  kc.  or  the  plaintiff  has  filed  it  for  him 
according  to  the  statute,  the  plaintiff  may  declare  hy  the  hye,  in  as  many 
different  actions  as  he  thinks  fit,  at  any  time  before  the  end  of  the  next  term 
after  the  return  of  the  process  -.{g)  And  after  a  plea  in  abatement,  if  the 
plaintiff  enter  on  the  roll  quod  hilla  cassetur,  et  defendens  eat  sine  die,  he 
may  at  any  time  during  the  same  term  in  which  the  process  is  returnable, 
deliver  a  declaration  by  the  bye  against  the  defendant. (/i)  It  is  also  a  settled 
point,  that  when  bail  is  filed  by  the  defendant,  upon  a  bill  of  Middlesex,  or 
latitat,  &c.  any  other  person  besides  the  plaintiff  may  declare  against  him 
by  the  bye,  at  any  time  during  the  term  wherein  the  process  is  returnable, 
sedente  curid  :{i)  But  where  bail  is  filed  by  the  plaintiff  according  to  the 
statute,  this  is  not  such  a  general  bringing  of  the  defendant  into  court,  as 
will  warrant  any  person,  except  the  plaintiff,  in  delivering  a  declaration  by 

the  bye  against  him.(^)  The  plaintiff  in  the  original  action  must 
[  *425  ]   declare  in  chief,  before  he  can  declare  by  the  bye  :{l)  but  any  other 

*person  may  declare  by  the  bye,  before  the  delivery  of  a  declara- 
tion in  chief  :{aa)  And  indeed,  as  the  plaintiff  is  allowed  two  terms  for  de- 
claring, another  person  who  has  only  one,  might  otherwise  be  deprived  of 
the  opportunity  of  declaring  by  the  bye.  Where  the  plaintiff,  having 
declared  in  his  own  right,  afterwards  declared  as  executor,  without  indors- 
ing the  declaration  "  by  the  bye,''  when  delivered,  but  the  defendant's 

(a)  5  Taunt  35.    Ante,  417. 

(6)  Pr.  Reg.  327. 

(c)  Per  Cur.  E.  12  Geo.  III.  K.  B.   2  Cromp.  3  Ed.   8  Barnes,  396,  401.    2  Blac.  Rep.  759. 

{d)  Id.  ibid.  2  New  Rep.  C.  P.  404.  (e)  Append.  Chap.  XVII.  I  5,  6. 

(/)  1  H.  Blac.  87. 

Q)  R.  M.  10  Geo.  II.  reg.  1,  (6),  K.  B.  ;  but  see  Gilb.  K.  B.  310. 

{h)  5  Durnf.  &  East,  634. 

(i)  Poph.  14a.  Garth.  377.  1  Salk.  2,  S.  C.  Gilb.  K.  B.  310,  342.  4  Bur.  2181.  3  Durnf.  & 
East,  627. 

(fc)  2  Str.  1027.  Gas.  <ot!J9.  Hardw.  207,  S.  C.  R.  M.  10  Geo.  II.  reg.  1,  K.  B. 

\l)  6  Durnf.  &  East,  158.  7  Durnf.  &  East,  80.  But  taking  the  declaration  by  the  bye  out 
of  the  office,  is  a  waiver  of  the  irregularity.    3  East,  342. 

(aa)  Con.  Phillip's  case,  1  Cromp.  3  Ed.  96. 


OF  THE  DECLARATION.  425 

attorney  was  told  it  was  "  hy  the  hije"  th^  court  of  King's  Bench,  on  the 
opinion  of  the  master,  hcUl  it  to  be  regular.(/*) 

In  actions  by  orif/inal  in  the  King's  Bench,  tlie  practice  of  declaring  by 
the  bye  is  similar  to  that  in  the  Common  Pleas ;  where  the  satne  plaintiff 
is  allowed  to  declare  against  the  defendant  by  the  bye,  in  as  many  differ- 
ent actions  as  he  thinks  fit,  at  any  time  before  the  end  of  the  next  term 
after  the  return  of  the  process  ;(c)  and  he  may  so  declare  in  the  same  term, 
though  the  debt  and  costs  on  the  first  declaration  are  paid  :((/)  but  he  cannot 
declare  by  the  bye,  after  the  end  of  that  term  ;((^)  nor  can  any  other  person 
declare  by  the  bye,  except  the  plaintifT.(/)  If  the  plaintiff  sue  out  a  writ 
at  the  suit  of  himself  and  wife,  he  may  deliver  a  declaration  by  the  bye  at 
his  own  suit:(^^//)  but  if  an  action  be  brought  by  the  husband  only,  and  a 
declaration  delivered  in  that  action,  he  cannot  declare  by  the  bye  at  the 
suit  of  himself  and  wife,  there  being  no  process  to  warrant  it.(/i/i)  If  the 
writ  be  special,  the  plaintiff  cannot  declare  by  the  bye,  till  he  has  declared 
in  the  original  action  :(zV)  but  if  it  be  with  an  ae  etiam  only,  he  may  deliver 
as  many  declarations  as  he  thinks  fit  thereon  against  the  defendant,  during 
the  same  term ;  though  he  will  lose  his  bail,  by  declaring  for  a  different 
cause  of  action  from  what  is  expressed  in  the  ac  etiam.[kk)  So,  on  a  capias 
with  an  ac  etiam,  at  the  suit  of  an  executor,  the  plaintiff  cannot  deliver  a 
declaration  by  the  bye  at  the  suit  of  himself  personally ;  but  if  the  writ  be 
a  general  qiiare  clausiim  fregit,  the  plaintiff  may  declare  by  the  bye  as 
executor,  or  qui  tarn,  or  as  assignee  of  the  sheriff.(/^) 

'Y^h.Q  parts  of  a  declaration  are,  first  the  title  ;  secondly,  the  venue  ;  thirdly, 
the  commencement ;  fourthly,  the  statement  of  the  cause  of  action  ;  and 
lastly,  the  conclusion. {tn)  The  declaration  hjhill^'in  the  King's 
Bench,  *should  regularly  be  entitled  of  the  day  on  which  the  [  *42G  ] 
writ  is  returnable ;  for  the  bill,  of  which  it  is  a  copy,  cannot  be 
filed  till  the  bail  is  put  in,  which  cannot  be  till  the  return  of  the  writ  :(a) 
And  where  there  are  several  defendants,  who  put  in  bail  of  different  terms, 
the  declaration  should  be  entitled  of  the  term  when  the  last  bail  was  put 
m.(l)b)  In  practice  it  is  usual,  in  both  courts,  when  the  cause  of  action  will 
admit  of  it,  to  entitle  the  declaration  generally^  of  the  term  in  which  the 
writ  is  returnable  ;  and  though  filed  or  delivered,  it  cannot  regularly  be  en- 

(6)  Per  Cur.  E.  21  Geo.  III.  K.  B.    Append.  Chap.  XVIII,  §  4. 

(c)  Pr.  Reg.  142.  (d)  Id.  144. 

(e)  Barnes,  346.  (/)  Cas.  Pr.  C.  P.  6. 

(gg)  Id.  132.  (hh)  Id.  131.  Barnes,  337.  Pr.  Reg.  142,  S.  C. 

(ii)  Cas.  Pr.  C.  P.  58.  (kk)  Id.  ibid.  Pr.  Reg.  137,  S.  C.    3  Wils.  61. 

{II)  Ilainey  y.  Sparing,  E.  10  Geo.  III.  C.  P.    Imp.  C.  P.  7  Ed.  190. 

(ot)  In  Heath's  .Maxims,  it  is  said  that  a  count  or  declaration,  being  terms  equivalent, 
ought  principally  to  contain  three  things  :  first,  the  names  of  the  plaintiff  and  defendant, 
who  in  actions  real  are  called  demandant  and  tenant,  and  the  nature  of  the  action  ;  and  this 
by  some  is  termed  the  demonstration,  or  demonstrative  part  of  the  count :  secondly,  the  time, 
the  place,  and  the  act ;  in  which  ought  to  be  comprehended  how  and  in  what  manner  the 
action  did  accrue,  or  first  arise  between  the  parties  ;  when,  what  day,  what  year,  and  what 
place,  and  to  whom  the  action  shall  be  given  ;  which  is  called  the  declarative  part  of  the 
count:  and  lastly,  the  perclose  or  conclusion,  which  is  undc  detrrioratus  est,  &c. :  in  which 
the  plaintiff  ought  to  aver  and  proffer  to  prove  his  suit,  and  show  the  damage  he  hath  sus- 
tained by  the  wrong  ami  injury  done  by  the  defendant:  And  the  declaration,  according  to 
this  definition,  consisting  of  a  tria,  somewhat  resembling  the  logical  major,  minor,  and  con- 
clusion, some  of  the  ancients,  (among  whom  none  was  more  fond  of  it  than  Mr.  Fleetwood^ 
the  famous  recorder  of  London,)  conceived  to  be  a  perfect  syllogism.  Heath's  Max.  2.  And 
see  further,  as  to  the  several  parts  of  a  declaration,  1  Chit.  PI,  4  Ed.  234,  &c. 

{a)  Cas.  temp.  Hardw,  141  ;  but  vide  ante.  2  48,  282, 

{bb)  1  Wils.  242, 


426  OF  THE  DECLARATION, 

titled,  of  a  subsequent  term  :(c)  And,  in  the  Common  Pleas,  after  tlie  remo- 
val of  a  replevin  cause  by  Avrit  of  recordari  facias  loquelam,  the  declara- 
tion must  be  entitled  of  the  term  in  which  the  writ  is  returnable,  or  that  of 
the  appearance. (c?)  But  the  declaration  should  always  be  entitled  after  the 
time  when  the  cause  of  action  is  stated  to  have  accrued :  therefore,  when 
the  cause  of  action  is  stated  to  have  accrued  after  the  first  day  of  the  term 
in  which  the  writ  is  returnable,  the  declaration  should  be  entitled  of  a  sub- 
sequent day  in  that  term,  and  not  of  the  term  generally ;  for  a  general  title 
refers  to  the  first  day  of  the  term,  and  upon  such  a  title  it  would  appear  that 
the  action  was  commenced  before  the  cause  of  it  accrued.  Yet,  where  the 
cause  of  action  was  stated  to  have  accrued  on  the  first  day  of  term,  the 
court  of  King's  Bench  on  demurrer  held,  that  the  declaration  might  be  en- 
titled of  the  term  generally:  for  the  delivery  of  the  declaration  is  the  act  of 
the  party,  and  in  ancient  times  it  could  not  have  been  delivered  till  the  sit- 
ting of  the  court ;  so  that  the  cause  of  action  might  well  have  accrued  be- 
fore the  actual  delivery  of  the  declaration. (e)  So,  where  a  cause  of  action 
arose  on  the  29th  of  January^  being  the  first  day  of  'd^^  fourth  year  of  the 
reign  of  his  present  majesty,  and  the  declaration  was  entitled  "  Saturday 
next  after  15  days  of  St.  Hilary  in  Hilary  term,  in  the  third  year  of  King 
George  the  4th,"  which  would  be  the  1st  o^  February,  in  i\\Q  fourth  jea.r 
of  his  reign,  the  court  on  demurrer  held,  that  the  declaration  was  properly 
entitled,  though  the  plaintiff  appeared  in  terms  to  have  commenced  his 
action,  before  the  cause  of  it  had  arisen. (/)  And  it  is  now  holden  to  be 
no  error,  to  entitle  the  declaration  of  a  term  generally,  though  the  cause 
of  action  is  stated  therein  to  have  accrued  after  the  first  day  of  the 
term.(^) 

When  a  declaration  is  improperly  entitled,  the  plaintiff  may  have  it  cor- 
rected, on  an  affidavit  of  the  fact  :{h)  And  leave  has  been  given  to 
[  *427  ]  amend  *the  declaration,  by  entitling  it  of  the  day  on  which  it  was 
actually  delivered,  instead  of  the  term  generally,  in  order  to  accord 
with  an  averment  therein,  that  other  defendants  named  in  the  writ  were 
then  outlawed. (a)  So,  in  an  action  against  the  marshal  for  an  escape, 
where  the  bill  was  entitled  generally  of  3Iichaelmas  term,  and  the  escape 
was  alleged  to  have  taken  place  on  the  15th  November,  the  court,  after  spe- 
cial demurrer,  allowed  the  plaintiff  to  amend,  on  payment  of  costs;  although 
it  appeared  by  affidavit  that  the  prisoner  had  returned  into  the  custody  of 
the  marshal,  before  any  application  for  liberty  to  amend  was  made. (5)  And 
the  title  of  a  declaration  may  be  set  right,  at  the  instance  of  the  defend- 
ant, if  necessary  for  his  defence  :{cc)  Thus,  where  the  declaration  is  entitled 
of  the  term  generally,  and  the  defendant  pleads  plena  administravit,{dd)  or 
a  tender  made  before  the  exhibiting  of  the  bill,  upon  which  he  would  give 
in  evidence  an  administration  of  assets,  or  tender  made,  between  the  first 
day  of  the  term  to  which  the  bill  relates,  and  the  day  of  suing  out  the 

(c)  3  Durnf.  &  East,  624. 

(d)  5  Taunt.  771.    1  Marsh.  341,  S.  C.    Ante,  417. 

(e)  1  Durnf.  &  East,  116;  and  pee  3  Wils.  154.    2  Blac.  Rep.  735,  S.  C. 
(/)  2  Dowl.  &  Ryl.  868  ;  and  see  7  Barn.  &  Cres.  406. 

Iff)  10  Moore,  194.    2  Bing.  469.    1  M'Clel.  &  Y.  202,  S.  C. 

(A)  1  Wils.  78.  2  Wils.  256.  7  Durnf.  k  East,  474;  and  see  2  Chit.  Rep.  22  ;  but  see  6 
Taunt.  19.    1  Marsh.  419,  S.  C. 

(a)  1  East,  133.  (J)  6  Barn.  &  Cres.  196. 

(cc)  5  Barn.  &  Cres.  151.    7  Dowl.  &  Ryl.  731,  S.  C. 

(del)  Cas.  temp.  Hardw.  141.  And  see  further,  as  to  the  mode  of  entitling  the  declaration, 
and  the  consequences  of  a  mistake  therein,  1  Chit.  PI.  4  Ed.  237,  &c. 


OF  THE  DECLARATION.  427 

writ ;  he  has  a  riglit  to  call  upon  the  plaintiff  to  entitle  his  declaration 
properly. (e) 

The  venue  in  ijcrsonal  actions,  or  county  where  the  action  is  laid  and 
intended  to  be  tried,  is  local  or  transitory.{f)  "When  the  action  could  only 
have  arisen  in  a  particular  county,  it  is  lucal,  and  the  venue  must  be  laid 
in  that  county  :  for  if  it  be  laid  elsewhere,  the  defendant  may  demur  to  the 
declaration  ;(r/)  or  the  plaintiff,  on  the  general  issue,  will  be  non-suited  at 
the  trial. (/i)  Such  are  all  real  and  mixed  actions,  and  actions  of  ejectment^ 
and  trespass  quare  clausum  fregit,  &c.  And  an  action  on  the  case  for  a 
nuisance  is  held  to  be  local  in  its  nature  ;  and  the  nuisance  must  be  proved 
to  have  been  committed  in  the  county  where  the  venue  is  laid.(z)  But 
where  the  action  might  have  arisen  in  anT/  county,  as  upon  contracts,  it  is 
transitory^  and  the  plaintiff  may  in  general  lay  the  venue  wherever  he 
pleases  \{k)  subject  however  to  its  being  changed  by  the  court,  if  not  laid 
in  the  very  county  where  the  action  arose. 

To  use  the  words  of  Lord  3IansJieM,  in  the  case  of  Fahrigas  v.  3Io8- 
tyn:{l)  "  There  is  ^formal  and  a  substantial  distinction,  as  to  the  locality 
of  trials.  I  state  them,"  says  he,  as  "different  things:  With  regard  to 
matters  arising  within  the  realm,  the  substantial  distinction  is,  where  the 
proceeding  is  in  7'em,  and  where  the  effect  of  the  judgment  could  not  be 
had,  if  it  were  laid  in  a  wrong  place.  That  is  the  case  of  all  ejectments, 
where  possession  is  to  be  delivered  by  the  sheriff  of  the  county;  and  as 
trials  in  England  are  in  particular  counties,  and  the  officers  are 
county  *officers,  the  judgment  could  not  have  effect,  if  the  action  [  *428  ] 
were  not  laid  in  the  proper  county."(aa) 

With  regard  to  matters  that  arise  out  of  the  realm,  there  is  a  substantial 
distinction  of  locality  too  ;  for  there  are  some  cases  that  arise  out  of  the 
realm,  which  ought  not  to  be  tried  any  where  but  in  the  country  where 
they  arise  :  as  if  two  persons  fight  in  France,  and  both  happening  casually 
to  be  here,  one  should  bring  an  action  of  assault  against  the  other,  it 
might  be  a  doubt  whether  such  an  action  could  be  maintained  here  ; 
because,  though  it  is  not  a  criminal  prosecution,  it  must  be  laid  to  be 
against  the  2^eace  of  the  king ;  but  the  breach  of  the  peace  is  merely 
local,  though  the  trespass  against  the  person  is  transitory.  So,  if  an 
action  were  brought  relative  to  an  estate  in  a  foreign  country,  where  the 
question  was  a  matter  of  title  only,  and  not  of  damages,  there  might  be  a 
eolid  distinction  of  locality. 

But  there  is  likewise  a,  formal  distinction,  which  arises  from  the  mode  of 
trial :  for  trials  in  England  being  by  jury,  and  the  kingdom  being  divided 
into  counties,  and  each  county  considered  as  a  separate  district  or  princi- 
pality, it  is  absolutely  necessary  that  there  should  be  some  county  where 
the  action  is  brought  in  particular,  that  there  may  be  a  process  to  the 
sheriff  of  that  county,  to  bring  a  jury  from  thence  to  try  it.  This  matter 
of  form  goes  to  all  cases  that  arise  abroad  :  but  the  law  makes  a  distinc- 
tion between  transitory  and  local  actions.  If  the  matter,  which  is  the 
cause  of  a  transitory  action,  arise  within  the  realm,  it  may  be  laid  in  any 

(e)  1  Sir.  638.  1  Wils.  39,  S.  C.  cited.  1  Wils.  304,  S.  P. ;  and  see  4  Esp.  Rep.  73,  4. 

(/)  Gilb.  C.  P.  84.  (</)  1  Wils.  1C5. 

(A)  Cowp.  410.    2  Blac.  Rep.  1033. 

(i)  1  Taunt.  379;  but  see  2  Campb.  3.    1  Bos.  k  Pul.  225. 

(k)  Gilb.  G.  P.  84;  and  see  1  Wms.  Sauud.  5  Ed.  74,  (2). 

(Z)  Cowp.  17G,  7  ;  and  see  2  Camp.  274.  Sleph.  PI.  306,  &c. 

[aa)  7  Dumf.  &  East,  587,  8. 


428  OF  THE  DECLARATION. 

county,  the  place  not  being  material ;  as  if  an  imprisonment  be  in  Mid- 
dlesex, it  may  be  laid  in  Surrey,  and  though  proved  to  be  done  in 
3Iiddlesex,  it  does  not  at  all  prevent  the  plaintiff  from  recovering 
damages.  The  place  in  transitory  actions  is  never  material,  except  where 
by  particular  acts  of  parliament,  it  is  made  so  ;  as  in  the  case  of  church- 
wardens and  constables,  and  other  cases  which  require  the  action  to  be 
brought  in  the  county.  The  parties,  upon  sufficient  ground,  have  an 
opportunity  of  applying  to  the  court  in  time  to  change  the  venue  ;  but  if 
they  go  to  trial  without  it,  that  is  no  objection. 

So,  all  actions  of  a  transitory  nature,  that  arise  abroad,  may  be  laid  as 
happening  in  an  Englisli  county. (i)  But  there  are  occasions  which  make 
it  absolutely  necessary  to  state  in  the  declaration,  that  the  cause  of  action 
really  happened  abroad  ;  as  in  the  case  of  specialties,  where  the  date  must 
be  set  forth.  If  the  declaration  state  a  specialty  to  have  been  made  at 
Westminster  in  3Iiddlesex,  and  upon  producing  the  deed,  it  bears  date  at 
Bengal,  the  action  is  gone ;  because  it  is  such  a  variance  between  the 
deed  and  the  declaration,  as  makes  it  appear  to  be  a  different 
[  *429  ]  instrument.  *But  the  law  has  in  that  case  invented  a  fiction; 
and  has  said,  the  party  shall  first  set  out  the  description  truly, 
and  then  give  a  venue  only  for  form,  and  for  the  sake  of  trial,  by  a 
videlicet,  in  the  county  of  Middlesex,  or  any  other  county.  In  declaring 
on  foreign  bills,  though  it  is  usual  to  state  that  they  were  drawn  at  the 
place  where  they  bear  date,  adding  the  venue  under  a  videlicet,{a)  yet 
this  does  not  seem  to  be  necessur j.{bb) 

In  an  action  upon  a  lease  for  rent,  &c„  when  the  action  is  founded  upon 
the  privity  of  contract,  it  is  transitory,  and  the  venue  may  be  laid  in  any 
county,  at  the  option  of  the  plaintiff;  but  when  the  action  is  founded  upon 
the  privity  of  estate,  it  is  local,  and  the  venue  must  be  laid  in  the  county 
where  the  estate  lies.(c)  Thus,  in  an  an  action  of  deU  or  covenant,  by  the 
lessor  against  the  lessee,  the  action  being  founded  on  the  privity  of  con- 
tract, is  transitory. (c^)  So,  if  an  action  of  debt  be  brought  by  the  lessor 
against  the  executor  of  the  lessee,  in  the  detinet  only,  it  is  transitory.(e) 
And  debt  for  use  and  occupation  is  not  a  local  action.  (/)  But  if  the 
action  be  brought,  as  it  may,  against  the  executor  of  the  lessee,  as 
assignee,  upon  the  privity  of  estate,  in  the  debet  and  detinet,  it  is  local. (^) 
In  covenant  by  the  grantee  of  the  reversion  against  the  lessee,  the  action 
being  founded  on  the  privity  of  contract,  which  is  transferred  from  the 
lessor  to  the  grantee,  by  the  operation  of  the  statute  32  Hen.  VIII.  c.  34, 
the  action  is  transitory.{7i)    But  in  debt  by  the  assignee(2')  or  devisee(^)  of 

(b)  In  a  replication  to  a  plea  of  ne  unques  accouple,  &c.,in  a  writ  of  dower,  alleging  a  mar- 
riage in  Scotland,  it  is  not  necessary  to  state,  by  way  of  venue,  that  the  marriage  was  had 
in  any  place  in  England.  2  H.  Blac.  145.  Nor  is  it  necessary  to  lay  a  venue  in  a  plea  in 
abatement,  that  another  person  ought  to  have  been  sued  jointly  with  the  defendant;  and  if 
it  be  pleaded  that  such  other  person  is  alive,  to  wit,  in  Spain,  it  will  be  considered  as 
pleaded  without  any  venue.  7  Durnf.  &  East,  243 ;  and  see  1  Wms.  Saund.  5  Ed.  8,  a,  (1). 
Steph.  PI.  306,  &c. 

(a)  Bayley  on  Bills,  3  Ed.  175. 

{bb)  3  Campb.  304,  5 :  but  see  2  Barn.  &  Aid.  301.  1  Barn.  &  Cres.  16.  2  Dowl.  &  Ryl. 
15,  S.  C. 

(c)  1  Wms.  Saund.  5  Ed.  241,  b,  (6.) 

(d)  3  Lev.  154.    6  Mod.  194.    2  Str.  776;  and  see  2  Salk.  651. 

(e)  Gilb.  Debt,  403.    Gilb.  C.  P.  91.  (/)  5  Taunt.  25. 
(g)  2  Lev.  80.    3  Keb.  135,  S.  C.  Gilb.  Debt,  403.  Gilb.  C.  P.  91. 

(h)  1  Wms.  Saund.  5  Ed.  238.    Carth.  183.    1  Wils.  165. 

(j)  Cro.  Car.  183.    1  Wils.  165.  [k)  W.  Jon.  43. 


OF  TUE  DECLARATION.  429 

the  lessor,  against  the  lessee,  which  is  founded  on  the  privity  of  estate, 
the  action  is  local.  So,  if  an  action  of  debt  or  covenant  be  brought  by  the 
lessor,(^)  or  his  personal  representatives,(m)  or  by  the  grantee  of  the 
reversion, (?«)  against  the  assignee  of  the  lessee,  it  is  local,  and  the  venue 
must  be  laid  in  the  county  where  the  land  lies  :  and  accordingly,  in  cove- 
nant against  the  assignee  of  the  lessee  of  premises,  described  in  the 
declaration  as  situate  witliin  the  liberties  of  Berwick  upon  Tweed,  the 
venue  cannot  be  laid  in  Northumberhind.{o) 

There  are  some  actions,  however,  of  a  transitory  nature,  wherein  the 
venue,  by  act  of  parliament,  must  be  laid  in  a  particular  county.  Thus,  by 
the  statute  31  Eliz.  c.  5,  §  2,  "  in  any  declaration  or  information,  the  offi-nce 
against  any  penal  statute  shall  not  be  laid  to  be  done  in  any  other  county 
but  where  the  contract,  or  other  matter  alleged  to  be  the  offence,  was  in  truth 
done ;  and  every  defendant  in  such  action  or  information  may  traverse, 
and  allege  that  the  offence  was  not  committed  in  the  county 
where  it  is  alleged :  which  being  tried  for  the  defendant,  *or  if  the  [  MSO  ] 
plaintiff  be  thereupon  nonsuit,  then  the  plaintiff  shall  be  barred  in 
that  action  or  information."  And,  by  the  statute  21  Jac.  I.  c.  4,  "in  all 
informations  to  be  exhibited,  and  in  all  bills,  counts,  plaints  and  declara- 
tions, to  be  commenced  against  any  person  or  persons,  either  by  or  on  be- 
half of  the  king  or  any  other,  for  or  concerning  any  offence  committed  or  to 
be  committed,  against  any  penal  statute,  the  offence  shall  be  laid  and  alleged 
to  have  been  committed  in  the  county  where  such  offence  was  in  truth 
committed,  and  not  elsewhere."  The  former  of  these  statutes  is  holden  to 
be  still  in  force;  and  it  extends  to  all  actions  or  informations  brought  by 
common  informers  upon  penal  statutes,  whether  made  before  or  after  the  31 
Eliz. (a)  And  hence  it  is  a  general  rule,  that  the  venue  in  such  actions  or 
informations  must  be  laid  in  the  county  where  the  offence  was  committed. 
The  latter  statute  also  extends  as  well  to  offences  of  omission,  as  of  com- 
mission.(^)  There  is  an  exception  however,  in  the  statute,  that  it  shall  not 
extend  to  any  such  officers  of  record  as  had,  in  respect  of  their  offices, 
theretofore  lawfully  used  to  exhibit  informations,  or  sue  upon  penal  laws ; 
which  exception  extends  to  informations  by  the  attorney  general,  in  the 
court  of  Exchequer  ;(c)  and  there  are  some  other  exceptions  in  the  statute, 
relating  to  offences  concerning  champerty,  &c.  But  the  statute  21  Jac.  I. 
0.  4,  does  not  extend  to  offences  created  by  subsequent  statutes  ;((7)  and 
neither  this  statute,(g)  nor  the  31  Eliz.  c.  5,(/)  extends  to  actions  brought 
by  the  imrty  grieved.  In  an  action  on  the  statute  1  &  2  Ph.  &  M.  c.  12, 
for  driving  a  distress  out  of  the  hundred,  if  the  hundred  in  which  the  cattle 
were  distrained  be  in  one  county,  and  the  hundred  into  which  they  were 
driven  in  another,  the  venue  may  be  laid  in  either  county.(^)  But  an 
action  on  the  statute  3  Geo.  II.  c.  2(3,  for  selling  coals,  as  and  for  a  sort 
which  they  really  were  not,  must  be  brought  in  the  county  in  which  the 

(Z)  6  Mod.  104  ;  and  see  7  Durnf.  &  East,  583.    2  East,  580.  (m)  Latcli,  197. 

(n)  Carth.  182.    3  Mod.  336.    1  Salk.  80.    1  Show.  191,  S.  C.    7  Durnf.  &  East,  583, 

(o)  3  King.  459. 

(a)  Com.  Dig.  lit.  Action,  N.  10  Bui.  Ni.  Pri.  195.  4  Bur.  2467.  2  Durnf.  &  East,  238.  2 
Bos.  &  Pul.  381.  4  East,  385.  9  East,  296.  5  Taunt.  754.  1  Marsh.  320,  S.  C.  Id.  321,  (a). 
3  Maule  &  Sel.  429. 

(6)  5  Maule  &  Sel.  427. 

(c)  Bunb.  236,  261.    Parker,  182.    3  Anstr.  871. 

{d)  1  Salk.  372, 3.  Bui.  Ni.  Pri.  195.  .Sel.  Ni.  Pri.  6  Ed.  637.  3  Maule  &  Sel.  438,  9  ;  442,3;  445. 

(e)  I  Show.  354.    Bui.  Ni.  Pri.  196.  (/)  Ante,  14.    Bui.  Ni.  Pri.  195. 

[g)  2  Campb.  266.    2  Taunt.  252,  S.  C. 


4:)0  OP  THE  DECLARATION. 

coalri  were  delivered^  and  not  where  they  were  contracted  for.(7i)  And  a 
penal  action  for  non-residence  must  be  brought  in  the  county  in  which  the 
living  is  situated. (2)  In  an  action  brought  to  recover  penalties  on  the 
statute  of  usurij,  it  appeared  that  the  contract  was  made  in  one  county, 
and  the  money  paid  in  another  ;  and  the  court  held,  that  the  venue  ought 
to  have  been  laid  in  the  county  where  the  usurious  interest  was  received.(Z;) 
There  are  also  certain  other  actions,  wherein  the  venue,  which  would 
otherwise  be  transitory,  must  by  various  acts  of  parliament,  made  for  pro- 
tecting officers  in  the  execution  of  their  duty,  be  laid  in  the  county  wherein 
the  facts  were  committed,  and  not  elsewhere.     Such  are  actions  upon  the 

case,  or  trespass  against  justices  of  peace,  mayors  or  bailiffs  of 
[  *431  ]   cities  or  *towns  corporate,  headboroughs,  portreves,  constables, 

tithing-men,  church-wardens,  &c.,  or  other  persons  acting  in 
their  aid  and  assistance,  or  by  their  command,  for  anything  done  in  their 
oflScial  capacity  ;(a)  and  also  actions  against  any  person  or  persons,  for 
anything  done  by  an  officer  or  officers  of  the  exc{se,{b)  or  customs,{€c)  or 
others  acting  in  his  or  their  aid,  in  execution  or  by  reason  of  his  or  their 
office  ;  or  for  anything  done  in  pursuance  of  the  act  for  consolidating  the 
provisions  of  the  acts  relating  to  the  duties  under  the  management  of  the 
commissioners  for  the  affairs  of  taxes,  or  any  act  for  granting  duties  to  be 
assessed  under  the  regulations  of  that  a,ct,[dd)  &c.  ;  against  an  officer  of 
the  army,  navy,  or  marines,  for  anything  done  in  the  execution  of,  or  by 
reason  of  his  office  ;{ee)  or  against  any  person,  for  anything  done  in  pur- 
suance of  the  acts  relative  to  larceny,  &c.,  or  malicious  injuries  to  pro- 
perty.(_^)  But  an  action  against  a  constable  is  not  confined  to  the  proper 
county,  where  he  does  not  act  in  execution  of  his  office.(^^) 

Also,  by  the  42  Geo.  III.  c.  S5,{hh)  the  provisions  of  the  statute  21 
Jac.  I.  c.  12,  with  regard  to  the  venue,  &c.,  are  extended  to  all  persons 
having,  holding  or  exercising,  or  being  employed  in  any  public  employ- 
ment, or  any  office,  station  or  capacity,  either  civil  or  military,  either  in 
or  out  of  this  kingdom ;  and  who  under  and  by  virtue  or  in  pursuance  of 
any  act  or  acts  of  parliament,  &c.,  have,  by  virtue  of  any  such  public 
employment,  &c.,  power  or  authority  to  commit  persons  to  safe  custody : 
and  "  all  such  persons,  having  such  power  or  authority  as  aforesaid,  shall 
have  and  be  entitled  to  all  the  privileges,  benefits  and  advantages,  given 
by  the  provisions  of  the  said  act,  as  fully  and  effectually  to  all  intents  and 
purposes,  as  if  they  had  been  specially  named  therein.  Provided  always, 
that  when  any  action,  bill,  plaint  or  suit,  upon  the  case,  trespass,  battery, 
or  false  imprisonment,  shall  be  brought  against  any  such  person  as  is  in 
this  act  described  as  aforesaid,  in  this  kingdom,  for  or  upon  any  act, 
matter  or  thing  done  out  of  this  kingdom,  it  shall  be  lawful  for  the  plaintiff 
bringing  the  same,  to  lay  such  act,  matter  or  thing  to  have  been  done  in 
Westminster,  or  in  any  county  where  the  person  against  whom  any  such 
action,  bill,  plaint  or  suit  shall  be  brought,  shall  then  reside." 

(/()  4  East,  385.  (i)  2  Chit.  Rep.  420. 

(k)  2  Barn.  &  Cres.  TOO.    5  Dowl.  &  Rjl.  616,  S.  C. 

(a)  Stat.  21  Jac.  I.  c.  12,  ^  5.  (b)  23  Geo.  III.  c.  70,  §  34. 

{cc)  24  Geo.  III.  sess.  2,  c.  47,  ^  35,  39 ;  which  statute,  however,  is  repealed  by  that  of  6 
Geo.  IV.  c.  105  ;  and  see  stat.  28  Geo.  III.  c.  37,  §  23.    6  Geo.  IV.  c.  108,  ^  97. 

(dd)  Stat.  43  Geo.  III.  c.  99,  ^  70.  (ee)  Stat.  6  Geo.  IV.  c.  108,  |  97. 

(/)  Stat.  7  &  8  Geo.  IV.  c.  29,  §  75,  &c.  30,  g  41. 

{>/[/)  1  Str.  446.  3  Bur.  1742  ;  and  see  2  Esp.  Rep.  542.  3  Esp.  Rep.  226.  2  Stark.  Ni. 
Pri.  445.  {hh)  §  6. 


OF  THE  DECLARATION.  431 

On  the  other  hand,  the  venue  in  a  transitory  action  is  in  some  cases 
altogether  optional  in  the  phvintiff;  as  wliere  the  action  arises  mWalcH  or 
beyond  the  sea,  or  is  brought  upon  a  bond,  or  other  specialty,  promissory 
note,  or  bill  of  exchange;  for  scandalum  maynatum,  or  a  libel  dispersed 
throughout  the  kingdom  ;  against  a  carrier,  or  lighterman ;  or  for  an 
escape,  or  false  return  ;  and  in  short,  wherever  the  cause  of 
action  is  not  *wholly  and  necessarily  confined  to  a  single  [  *432  ] 
county. (a)  In  these  cases,  the  venue  cannot  be  changed  by  the 
courts,  but  upon  a  special  ground. 

In  actions  by  oru/inal,  the  venue,  in  the  King's  Bench,  should  in  general 
be  laid  in  the  county  where  the  writ  was  brought :(/»)  and  if  it  be  not  so 
laid,  the  court  will  set  aside  the  proceedings  for  irregularity,  and  the 
plaintifl',  we  have  sccn,(6')  will  lose  his  bail.  But,  in  the  Common  Pleas, 
though  the  practice  was  formerly  the  same  as  in  the  King's  Bench, (fZ) 
where  an  arrest  shall  be  by  virtue  of  a  capias  ad  respondendum  in  any 
county,  and  bail  shall  be  put  in  thereupon,  and  the  plaintifl"  shall  think 
proper  afterwards  to  declare  in  a  difFcrent  county,  it  shall  not  be  deemed 
a  waiver  of  the  bail ;  but  the  recognizance  of  bail  shall  be  as  efiectual  for 
the  benefit  of  the  plaintiff,  and  he  may  proceed  thereon  against  the  bail, 
in  the  same  manner  as  if  the  plaintiff  had  declared  against  the  defendant 
in  the  same  county  in  which  the  bail  was  put  in.(c)  And  it  is  a  general 
rule,  that  the  county  in  the  margin  will  help,  but  not  hurt :(/)  Hence,  if 
there  be  no  venue,  or  it  be  not  laid  with  certainty,((/)  in  the  body  of  the 
declaration,  reference  must  be  had  to  the  margin ;  but  where  a  proper 
venue  is  laid  in  the  body,  the  county  in  the  margin  will  not  vitiate  it. (A) 
In  an  action  upon  the  case  for  a  nuisance,  if  no  place  be  alleged  where 
the  nuisance  was  committed,  the  county  in  the  margin  shall  be  intended. (?) 
And,  in  stating  transitory  facts,  it  is  enough  to  allege  a  county  for  a 
venue,  without  a  parish. (/c) 

In  actions  by  bill  against  common  persons,  in  the  King's  Bench,  the  de- 
claration begins  by  stating  the  defendant  to  be  in  custody  of  the  marshal  ;(Z) 
or,  if  he  be  in  custody  of  the  sheriff,  or  bailiff  or  steward  of  a  franchise  hav- 
ing the  return  and  execution  of  writs,  it  should  allege  in  Avhose  custody  he 
is,  at  the  time  of  the  declaration,  by  virtue  of  the  process  of  the  court,  at 
the  suit  of  the  plaintifi's.(w)  If  the  action  be  brought  by  or  against  par- 
ticular persons,  as  assignees,  executors,  &c.  the  special  character  in  which 
they  sue,  or  are  sued,  should  be  set  forth  in  the  beginning  of  the  de- 
claration :     And  in  actions  against  attorneys^  instead  of   stating  that 

(a)  See  the  cases  referred  to  in  Chap.  XXIV.  (/■>)  Bat  vide  ante,  423. 

{c)  Ante,2M.  (rf)  Barnes,  116. 

(e)  R.  H.  22  Geo.  III.  C.  P. 

(/)  1  Wms.  Saund.  5  Ed.  308,  (1)  And  note,  Lord  Ilardwicke  was  of  opinion,  that  the 
JJ"\n  the  nmrpin  of  the  declaration,  was  not  ori^'inally  meant  to  signify  the  county,  but  was 
only  a  denotation  of  each  section  or  paragraph  in  the  record.    Cas.  temp.  Hardw.  344. 

(g)  2  Blac.  Rep.  847.    3  Wils.  339,  S.  C. 

\h)  Cas.  temp.  Ilardw.  343,  4.  Barnes,  483.  3  Durnf.  &  East,  387. 

(»•)  1  Taunt.  379;  and  see  2  East,  497.  5  Taunt.  789.  1  Marsh.  3G3,  S.  C.  And  see  fur- 
ther, as  to  the  x'enue  in  personal  actions,  whether  local  or  transitory,  and  the  mode  of  slating 
it,  with  the  consequences  of  a  mistake,  and  when  aided,  1  Chit.  PI.  4  Ed.  239,  &c.,  252,  &c. 
Steph.  PI.  298,  &c. 

ik)  3  Maule  &  Sel.  148. 

(/)  Append.  Chap.  XV.  ?  19.  Chap.  XVII.  ?  IG,  Ac.  Chap.  XLVI.  §  26.  And  for  the  form 
of  the  lie;:^inning  and  conclusion  of  a  declaration  in  the  E.\chequer,  see  Append.  Chap. 
XVII.  I  19,  20,  21. 

(to)  Append.  Chap.  XV.  g  1,  Ac. 


432  0¥  THE  DECLARATION. 

[  *433  ]  they  are  in  custody  of  the  marshal  or  sheriff,  it  should  be  stated 
that  *they  are  present  in  court  ;(a)  or,  in  actions  against  pe^r« 
or  members  of  the  house  of  commons,  that  they  have  privilege  of  parlia- 
ment,(6) 

In  account,  covenant,  debt,  annuity/,  detinue,  and  replevin,  where  the 
original  is  a  summons,  the  declaration  by  original  writ,  in  the  King's 
Bench  or  Common  Pleas,  begins  by  stating  that  the  defendant  was  sum- 
moned to  answer :  in  actions  on  the  case,  trespass,  ejectment,  &c.  where 
the  original  is  an  attachment,  it  states  that  he  was  attached  to  answer. (c) 
But  where  by  the  declaration  it  appears  that  the  defendant  was  summoned, 
instead  of  attached,  or  vice  versd,  the  defendant  cannot  demur,  without 
craving  o^er  of  the  original,  and  setting  it  forth,  in  order  to  show  that  it 
does  not  warrant  the  declaration. (cZ) 

It  was  formerly  usual  for  the  declaration  hj  original  to  repeat  the  whole 
of  the  original  writ.(e)  But  this  practice  being  productive  of  great  and  un- 
necessary prolixity,  a  rule  of  court  was  made,  that  "  declarations  in  actions 
upon  the  case,  and  general  statutes,  other  than  debt,  repeat  not  the  origi- 
nal writ,  but  only  the  nature  of  the  action ;  as  that  the  defendant  was 
attached  to  answer  the  plaintiff,  in  a  plea  of  trespass  upon  the  case,  or  in  a 
plea  of  trespass  and  contempt,  against  the  form  of  the  statute."{f)  And 
in  trespass  vi  et  armis,  commenced  by  original,  it  has  been  deemed  suffi- 
cient, on  a  general  demurrer,  to  state  in  the  declaration,  that  the  defend- 
ant was  attached  to  answer  the  plaintiff,  in  a  plea  of  trespass,  without  set- 
ting forth  the  circumstances. (^)     It  even  seems,  that  the  omission  of  the 

words  "and  thereupon  the  said  plaintiff  by his  attorney  complains," 

in  the  beginning  of  a  declaration  of  trespass  on  the  case,  in  the  Common 
Pleas,  is  no  cause  of  special  demurrer.(7i)  And  it  is  no  objection  to  a 
declaration,  that  the  parties,  having  been  once  called  by  their  names,  are 
afterwards  designated  by  the  terms  plaintiff  and  defendant  ;{i)  which  is 
now  become  the  common  mode  of  declaring. 

In  actions  upon  contracts,  the  declaration  must  in  all  cases  state  the  con- 
tract upon  which  the  action  is  founded,  and  the  breach  of  it :  And  this 
alone,  without  more,  is  in  some  cases  sufficient :  as  in  action  of  debt  on 
bond,  by  the  obligee  against  the  obligor.  Contracts  are  either  in 
[  *434]  writing, {k)  *or  hj  parol ;  if  in  writing,  they  are  either  by  deed 
under  seal,  or  by  agreement  without  seal ;  and  they  are  either 
express  or  implied  ;  the  former  are  created  by  the  words,  the  latter  by  the 

(a)  Append.  Chap.  XIV.  §  18,  &c.  (6)  Id.  Chap.  VI.  §  12,  &c. 

(c)  Com.  Dig.  tit.  Pleader,  C.  12.  2  Wms.  Saund.  5  Ed.  1,  (1).  Append.  Chap.  XVII.  I  7, 
&c.  Chap.  XLVI.  I  20,  &c. 

{d)  Cro.  Jac.  108.  Cro.  Car.  91.  1  "Wms.  Saund.  5  Ed.  318.  1  Sid.  423.  2  Keb.  544.  1 
Mod.  3,  S.  C.  4  Mod.  246.  2  Salk.  701.  6  Mod.  28,  S.  C.  2  Ld.  Raym.  903.  Fort.  341.  Cas. 
temp.  Hardw.  189.  Barnard  v.  Moss,  H.  28  Geo.  III.  C.  P.  Com.  Dig.  tit.  Pleader,  C.  12,  14, 
3  M.  6;  and  see  2  Wils.  85,  395,  413.  1  H.  Blac.  249.  11  East,  62.  1  Chit.  PI.  4  Ed.  256,  7. 
Steph.  PI.  424,  5.  And  as  oyer  cannot  now  be  had  of  the  original  writ,  it  seems  that  the 
declaration  is  no  longer  demurrable  for  the  above  cause.  1  Wms.  Saund.  5  Ed.  318,  (3) ; 
but  see  2  Chit.  Rep.  638. 

(e)  Com.  Dig.  tit.  Pleader,  C.  12. 

(/)  R.  M.  1654,  I  12,  K.  B.  R.  M.  1654,  §  16,  C.  P. 

{g)  Carth.  108;  and  see  1  Wms.  Saund.  5  Ed.  318,(3.) 

{h)  1  Bos.  &  Pul.  366.  And  see  further,  as  to  the  mode  of  commencing  declarations,  1 
Chit.  PI.  4  Ed.  254,  &c.  Steph.  PI.  420. 

(t)  6  Taunt.  121.  2  Marsh.  101,  S.  C.  6  Taunt.  406. 

{k)  For  the  cases  in  which  it  is  necessary  that  the  contract  should  be  in  writing,  see  the 
statute  of  frauds  and  perjuries,  29  Car.  II.  c.  3,  §  4,  17. 


OF  THE  DECLARATION.  434 

obvious  meaning  and  intention  of  the  parties.  Thus,  a  covenant  is  implie^l, 
from  the  hahcnduvi  in  a  lease,  for  quiet  enjoyment ;  and  from  the  redden- 
dum, for  payment  of  the  rent. (a)  So,  on  the  indorsement  of  a  note  or  bill, 
it  is  implied,  that  if  the  drawer  or  acceptor  do  not  pay  it,  the  indorser  will, 
on  having  due  notice  of  its  non-payment  :(/*)  And  in  general  it  maybe  re- 
marked, that  promises  are  implied,  to  pay  money  on  legal  liabilities.(c) 
With  regard  to  their  operation,  contracts  arc  j^resent  or  future  ;  under  the 
former,  may  be  classed  warranties,  that  a  horse  is  sound,  &c. :  the  latter 
are  to  do  or  omit  some  act,  or  to  procure  it  to  be  done  or  omitted  by 
another. (rZ)  Contracts  must  be  stated  in  the  declaration  as  they  were  really 
made,  either  in  terms,  or  according  to  their  legal  effect  ;(t')  and  if  there 
be  a  variance,  it  ^Yill  be   fatal, (/)  unless  it  be  rectified,  by  amending 

(a)  3  Bac.  Abr.  296. 

lb)  Bayley,  on  Bills,  27,  41,  2  ;  57.  (c)  Anle,  2. 

(d)  See  further,  as  to  contracts  in  assumpsit,  1  Chit.  PI.  4  Ed.  2G5,  &c.  Lawcs,  on  Pleading, 
Chap.  IV. 

(e)  1  Marsh.  211,  per  Gibbs,  Ch.  J. 

(/)  For  modern  cases,  in  which  variances  between  the  declaration  and  evidence,  have 
been  holden  to  he  fatal,  see  1  New  Rep.  C.  P.  351.  5  Esp.  Rep.  239,  S.  C.  2  East,  2.  4  .Maule 

6  Sel.  505.  2  Chit.  Rep.  333.  3  Moore,  79.  Gow.  21,  S.  C.  2  Barn.  &  Aid.  301.   1  Chit.  Rep. 

28,  S.  C.  Id.  60,  (rt).  5  Barn.  &  Aid.  42.  1  Barn.  &  Cres.  16.  3  Ktark.  Ni.  Pri.  15G,  S.  C.  2 
Dowl.  &  Ryl.  15,  S.  C.    2  Barn.  &  Cres.  20.    3  Dowl.  &  Ryl.  21 1,  S.  C.    3  Barn.  &  Cres.  462. 

5  Dowl.  &  ilyl.  319,  S.  C.  4  Barn.  &  Cres.  108.  6  Dowl.  &  Ryl.  200,  S.  C.  5  Barn.  &  Cres.  909. 
8  Dowl.  &  Ryl.  643,  S.  C.  3  Bing.  472,  in  a4.s?<7«/).?(7  ,•  4  Maule  &  Sel.  470.  6  .Maule  &  Sel.  115. 

1  Moore,  89.  2  Barn.  &  Aid.  765.  1  Chit.  Rep.  518,  S.  C.  5  Moore,  164.  2  Brod.  k  Bing.  395, 
S.  C.  3  Dowl.  &  Ryl.  145.  1  Moody  &  M.  6.  6  Barn,  k  Cres.  430,  in  covenant;  Ante,  225,  6, 
in  debt  on  bail  bond ;  Ry.  k  Mo.  153.  1  Car.  k  P.  534,  S.  C.  in  debt  for  usury  ;  4  Barn.  & 
Ores.  403.  6  Dowl.  &  Ryl.  483,  S.  C.  5  Barn.  &  Cres.  339.  8  Dowl.  &  Ryl.  98,  S.  C.  in  case, 
against  sheriff,  for  escape  or  false  return  ;  Doug.  665.  4  Barn.  &  Cres.  657.  7  Dowl.  k  Ryl. 
123.  Ry.  &  Moore,  266,  S.  C.  in  case,  against  sheriff,  on  stat.  8  Anne,  c.  14,  g  1  ;  2  Barn.  & 
Aid.  756.  1  Chit.  Rep.  507,  S.  C.  for  malicious  prosecution;  4  .Moore,  266.  1  Brod.  k  Bing. 
538,  S.  C.  against  agent,  for  misconduct ;  5  Barn.  &  Aid.  615.  1  Dowl.  &  Ryl.  230,  S.  C.  for 
libel ;  2  Barn,  k  Cre.s.  486.  3  Dowl.  &  Ryl.  728,  S.  C.  for  slander  of  title;  5  Moore,  475,  in 
replevin;  and  1  Car.  k  P.  472,  on  an  indictment  for  a  conspiracy.  And  for  cases  in  which 
variances  have  been  deemed  immaterial,  see  8  East,  8.    13  East,  410.    6  Taunt.  108.    Id.  581. 

2  Marsh.  287,  S.  C.  8  Taunt.  197.  2  Moore,  114,  S.  C.  1  Chit.  Rep.  60,  (a).  1  Brod.  k  Bing. 
523.  4  Moore,  515.  2  Brod.  &  Bing.  89,  S.  C.  5  Moore,  74.  2  Brod.  k  Bing.  359,  S.  C.  4 
Barn.  &  Aid.  435.  5  Barn.  &  Aid.  964,  S.  C.  11  Price,  19.  3  Stark.  Ni.  Pri.  156.  1  Barn.  & 
Cres.  18.  7  Moore,  283.  1  Bing.  34,  S.  C.  8  Moore,  372.  1  Bing.  355,  S.  C.  4  Barn.  &  Cres. 
445.  6  Dowl.  k  Ryl.  533,  S.  C.  7  Dowl.  &  Ryl.  140.  3  Bing.  633.  1  Moore  &  P.  239.  7  Barn. 
Cres.  423,  in  assumpsit;  1  Stark.  Ni.  Pri.  294.  1  Chit.  Rep.  518,  {a).  4  Moore,  66.  1  Brod.  & 
Bing.  443,  S.  C.  9  Price,  642.  6  Moore,  483.  3  Brod.  &  Bing.  186,  S.  C.  1  Barn.  &  Cres.  358. 
2  Dowl.  k  Ryl.  662,  S.  C.  1  Car.  k  P.  80,  610.  Ry.  k  Mo.  195.  1  Car.  &  P.  586,  S.  C.  1 
Younge  <fc  J.  2,  in  covenant ;  Ante,  225,  in  debt  on  bail  bond  ;  7  Moore,  231.  1  Bing.  6,  S.  C. 
in  debt  on  replevin  bond;  1  Durnf.  k  East,  235.  1  Chit.  Rep.  60,  in  debt  for  penalties;  6 
Barn.  &  Cres.  251,  in  debt  for  rent ;  4  Barn,  k  Cres.  380.  6  Dowl.  k  Ryl.  500,  S.  C.  in  debt, 
against  marshal,  for  escape;  7  Moore,  345,  for  diverting  a  watercourse;  1  Chit.  Rep.  104. 
4  Barn.  &  Cres.  161.  6  Dowl.  k  Ryl.  291,  S.  C.  for  disturbance  of  common  ;  1  Barn,  k  Cres. 
77.  2  Dowl.  k  Ryl.  184,  S.  C.  7  Moore,  304.  1  Bing.  45,  S.  C.  in  trover;  3  Durnf  k  East, 
643,  in  case,  on  stat.  11  Geo.  II.  c.  19,  g  3  ;  4  Durnf.  k  East,  558.    Dowl.  k  Ryl.  Ni.  Pri.  35. 

7  Barn.  &  Cres.  301  ;  for  negligence;  3  Barn.  &  Cres.  541.  5  Dowl.  k  Ryl.  292,  S.  0.  for 
deceit;  2  Barn.  &  Cres.  2.  3  Dowl.  k  Ryl.  226,  S.  C.  against  the  sheriff,  for  not  taking  suf- 
ficient pledges  in  replevin:  10  Price,  154;  Ry.  k  Mo.  291.  4  Bing.  278,  against  the  sheriff, 
for  an  escape  ;  3  Dowl.  &  Ryl.  483.  3  Barn.  &  Cres.  2.  4  Dowl.  &  Ryl.  624,  S.  C.  against  tho 
sheriff,  for  a  false  return  ;  4  Bing.  261,  in  an  action  for  words.  9  East,  157.  6  Maule  k  Sel. 

29,  for  malicious  prosecution  ;  1  Chit.  Rep.  480.  2  Barn,  k  Cres.  678.  4  Dowl.  k  Ryl.  230, 
S.  C.  3  Barn,  k  Cres.  24.  4  Dowl.  k  Ryl.  695,  S.  C.  3  Barn,  k  Cres.  113.  4  Dowl.  &  Ryl. 
670,  S.  C.    3  Barn.  &  Cres.  138,  9,  (6).    4  Dowl.  k  Ryl.  810,  S.  C.  for  libel ;   10  Moore,  264. 

6  Barn,  k  Cres.  34.  9  Dowl.  k  Ryl.  20,  S.  C.  in  repUvin ;  4  Dowl.  k  Ryl.  202.  9  Moore,  556. 
2  Bing.  271,  S.  C.  in  trespass;  Ry.  k  .Mo.  252.  4  Barn,  k  Cres.  850.  7  Dowl.  k  Ryl.  324, 
S.  C.  6  Barn,  k  Cres.  102.  9  Dowl.  &  Ryl.  97,  S.  C.  1  Moody  k  .M.  118,  on  an  indictment  for 
perjury.  And  see  further,  as  to  variance,  1  Chit.  PI.  4  Ed.  271,  &c.,  334,  &c.  3  Stark.  Evid. 
1526,  &c. 


431.  OF  THE  DECLARATION. 

[  *435  ]  the  record  at  the  trial,  pursuant  to  the  statute  9  Geo.  IV.  c.  15.  *In 

assumpsit  for  usg  and  occupation,  it  is  not  necessary  to  state  in 
what  parish  the  promises  are  situated  :{a)  and  where  a  parish  is  known 
as  well  by  one  name  as  another,  it  is  sufficient  to  call  it  by  either.(6)  But 
where  the  situation  of  the  premises  is  alleged  in  the  declaration,  a  vari- 
ance in  the  name  of  the  parish  is  fatal. (c?) 

When  the  contract  is  by  deed,  it  is  not  necessary  to  set  forth  the  con- 
sideration upon  which  it  is  founded :  as  the  law  in  that  case  imjjlies  a  con- 
sideration where  none  is  stated  :(cZ)  And  a  consideration  is  also  implied, 
upon  bills  of  exchange,  and  promissory  notes:  But  in  all  other  cases,  the 
consideration,  not  being  implied,  must  be  stated  in  the  declaration.  Con- 
siderations ave  commonly  said  to  be  executed  ov  executory ;  or  in  other 
words,  the  contract  is  founded  upon  something  already  done,  or  to  be  done  : 
But  there  is  a  third  species  of  considerations,  partaking  of  the  nature  of 
both  the  others,  as  in  the  case  of  mutual  promises  ;{e)  where  the  plaintiff's 
promise  is  executed,  but  the  thing  which  he  has  engaged  to  perform  is 
executory.  When  the  consideration  is  executed,  the  defendant  cannot 
traverse  the  consideration  by  itself,  because  it  is  incorporated  and  coupled 
with  the  promise,  and  if  it  were  not  then  in  fact  executed,  it  is  nudum 
pactum :  But  if  it  be  executory,  the  plaintiff  cannot  bring  his  action  till 
the  consideration  be  performed ;  and  if  in  truth  the  promise  were  made, 
and  the  consideration  not  performed,  the  defendant  must  traverse  the  per- 
formance, and  not  the  promise,  because  they  are  distinct  things. (/) 

It  is  also  commonly  supposed,  that  to  make  a  good  consideration,  there 
must  be  either  an  immediate  benefit  to  the  party  promising,  or  a  loss  to 
the  person  to  whom  the  promise  was  made.  But  this  rule  seems  to  be  too 
narrow ;  for  it  is  said,  that  wherever  a  man  is  under  a  moral  obligation, 
which  no  court  of  law  or  equity  can  enforce,  and  promises,  the 
[  *436  ]  honesty  and  *rectitude  of  the  thing  is  a  consideration  ;  as  if  a 
man  promise  to  pay  a  just  debt,  the  recovery  of  which  is  barred 
by  the  statute  of  limitations;  or  if  a  man,  after  he  comes  of  age,  pro- 
mise to  pay  a  meritorious  debt  contracted  during  during  his  minority,  but 
not  for  necessaries;  or  if  a  bankrupt  in  affluent  circumstances,  after  his 
certificate,  promise  to  pay  the  whole  of  his  debts ;  or  if  a  man  promise  to 
perform  a  secret  trust,  or  a  trust  void  for  want  of  writing  by  the  statute 
of  frauds  :  In  these  and  many  other  instances,  though  the  promise  give  a 
compulsory  remedy,  when  there  was  none  before,  either  in  law  or  equity ; 
yet  as  the  promise  is  only  to  do  what  an  honest  man  ought  to  do,  the  ties 
of  conscience  upon  an  upright  mind  are  said  to  be  a  sufficient  considera- 
tion.(aa) 

When  the  promise  and  consideration  explain  themselves  without  refer- 

(a)  6  East,  348.    1  Taunt.  570. 

[h)  1  Taunt.  570;  and  see  1  Bos.  &  Pul.  225.  2  Campb.  3.  13  East,  9.  3  Taunt.  127.  5 
Maule  &  Sel.  32G.  4  Barn.  &  Aid.  616,  619.  3  Bing.  449.  1  Younge  &  J.  492.  1  Chit.  PI.  4 
Ed.  251,  2;  but  see  2  Campb.  274. 

(c)  3  Campb.  235 ;  and  see  4  Taunt.  700.  1  Moore,  161.  Holt  Ni.  Pri.  523,  S.  C.  2  Moore, 
587.  8  Taunt.  539,  S.  C.   1  Younge  &  J.  492. 

{d)  7  Durnf.  &  East,  475  ;  and  see  3  Bur.  1639. 

(e)  1  Salk.  171.    1  Ld.  Raym.  665,  S.  C. 

(/)  Bui.  Ni.  Pri.  146 ;  and  see  7  Barn.  &  Cres.  423. 

[aa]  Per  Lord  Mamfield,  Cowp.  290 ;  and  see  5  Taunt.  36,  accord.;  but  see  3  Bos.  &  Pul. 
249,  (a),  semb.  contra.  And  see  further,  as  to  the  consideration  in  assumpsit,  1  Chit.  PI.  262, 
&c.  Lawes,  on  Pleading,  Chap.  III.  4  Barn.  &  Cres.  8.  6  Dowl.  &  Ryl.  42,  S.  C.  2  Bing.  464. 
1  M'Clel.  &  y.  205,  S.  C. ;  but  see  4  Bara.  &  Cres.  345.  6  Dowl.  &  Ryl.  438,  S.  C.  7  Dowl.  & 
Ryl.  14.  1  Moore  &  P.  227.  4  Bing.  459,  S.  C. 


OF  THE  DECLARATION.  436 

ence  to  any  collateral  matter,  they  are  stated  in  the  declaration  ^\ithout 
any  inducement :  But  when  that  is  not  the  case,  the  declaration  begins  by 
stating  the  circumstances  under  which  the  contract  was  made,  or  to  which 
the  consideration  refers  ;  as  in  an  action  of  assnmpHit  to  pay  money,  in 
consideration  of  forbearance,  or  of  staying  proceedings,  the  declaration 
begins  by  stating  the  debt  forborne,  or  the  proceedings  tliat  were  stayed. 
The  inducement  is  in  nature  of  a  ])reamble,  and  leads  on  to  the  prin- 
cipal matter  of  the  declaration ;  and  as  its  ofhce  is  explanatory,  it  does 
not  require  exact  certainty.(i) 

When  the  consideration  is  executed^  and  the  promise  to  pay  a  sum  cer- 
tain, or  to  do  or  omit  some  specific  act,  the  declaration  proceeds  at  once 
from  the  contract  to  the  breach,  without  any  intermediate  averments ;\^\\ 
as  in  the  case  of  indchitatus  assnnq/sit,  to  pay  a  precedent  debt,  &c.  Lut 
when  the  consideration  is  executory,  or  the  performance  of  the  defend- 
ant's covenant  or  agreement  is  made  to  depend  on  the  performance  of  a 
condition  precedent,  on  the  part  of  the  plaintiff,  the  declaration  ought  to 
aver  that  the  consideration  has  been  executed,  or  the  condition  performed: 
for  it  is  a  rule,  that  in  all  cases  where  the  estate  or  interest  commences 

(/>)  Com.  Dig.  tit.  Pleader,  C.  31.  And  see  further,  as  to  the  inducement  in  assumpsit,  1 
Chit.  n.  4  Ed.  260,  &c.  Lawes,  on  Pleading,  Chap.  II, 

[a]  a  declaration  should  aver  facts,  and  not  set  forth  the  evidence  by  which  the  facts 
might  be  proved.  Ralston  v.  Strong,  1  Chip.  293.  Glover  v.  Tuck,  24  Wend.  1.53.  And 
averments  by  way  of  inducement,  in  the  first  count  of  a  declaration,  will  aid  a  subsequent 
count,  which  wouhl  otlicrwise  be  defective,  when  it  clearly  refers  to  the  first  count  which  is 
good.  Crookshank  v.  Gray,  20  Johns.  344.  Where  any  acts  are  to  be  done  by  the  jilain- 
tilT,  by  way  of  a  condition  precedent,  he  must  show,  in  pleading,  precisely  what  he  has  done 
by  way  of  performing  them,  with  such  circumstances  as  are  material,  in  point  of  law,  to 
raise  the  corresponding  obligation.  Glover  v.  Tuck,  24  Wend.  153.  And  this  upon  the 
general  principle,  that  where  any  allegation  is  necessary  in  a  declaration  to  maintain  an 
action,  its  omission  in  the  declaration  cannot  be  supplied  by  the  proof  I'ollardv.  T/iumason, 
5  Humph.  5G.  Kinnaj  v.  Ilosea,  3  llarring.  456.  And  generally,  every  material  averment 
in  a  declaration  must  be  proved,  although  averments  foreign  to  the  issue  may  be  rejected  as 
surplusage  and  need  not  be  proved.  Bell  v.  Lakin,  1  M'.MuUan,  3G4.  Furgcson  v.  Tucker, 
2  Ilarr.  k  (lill.  182.  But  no  immaterial  averment,  made  by  way  of  inducement  merely,  need 
be  proved,  although  descriptive  of  a  written  instrument.  Ward  v.  The  Little  lied,  7  Miss. 
5«2.  Where  the  matter  alleged  in  the  pleadings  is  to  be  considered  as  lying  more  properly 
in  the  knowledge  of  the  plaintiff  than  the  defendant,  then  the  declaration  ought  to  state 
that  the  defendant  had  notice  thereof  But  where  the  matter  does  not  lie  more  properly  in 
the  knowledge  of  the  plaiutiff,  notice  need  not  be  averred.  Carlisle  v.  Cahaicba  and  Marion 
Railroad  Co.,  4  Ala.  70.  And  where  a  videlicet  is  followed  by  that  which  is  necessary  to  be 
alleged,  and  is  material,  it  is  considered  as  a  direct  and  positive  aflirmation,  or  averment, 
which  is  traversable,  unless  contrary  to  the  preceding  matter.  It  is  as  necessary  to  prove 
it,  when  material,  as  if  it  had  been  averred  without  a  videlicet.  Ladue  v.  Laduc,  1(5  Verm. 
189.  Ho,  too,  matter  in  excuse  of  performance  must  lie  expressly  averred.  Excuse  of  per- 
formance is  not  admissible  under  mere  averment  of  performance.  Bruen  v.  Astor,  Antlion, 
133.  A  subsequent  count  in  a  declaration  may,  by  a  distinct  reference  to  a  preceding  one, 
adopt  an  averment  contained  in  such  preceding  count,  without  repetition  of  such  averment. 
Freeland  v.  M-Cullough,  1  Denio,  414.  Mardis  v.  Shacklc/ord,  6  Ala.  433.  Useless  averments 
in  a  declaration  do  not  affect  those  which  are  well  alleged.  Olm.ttcad  v.  Dot;/,  2  Root,  184. 
But  any  averment  is  unnecessary,  where  the  words  are  so  connected  with  the  subject  mat- 
ter as  to  make  their  meaning  obvious.  MLellan  v.  Morri.t,  Kirby,  14.'J.  Although  the  omis- 
sion of  a  material  averment  in  a  declaration,  or  the  cause  of  action  defectively  set  out, 
cannot  be  supplied  with  evidence  at  the  trial.  Wahhmith  v.  Wald.imith,  2  Ham.  156.  In 
declaring  on  a  contract  which  is  not  sufficiently  explicit  in  itself,  and  where  its  validity 
depends  upon  extrinsic  matter,  either  referred  to  or  necessarily  arising  out  of  the  terms  of 
the  contract,  the  deficiency  must  be  supplied  by  proper  averments  in  the  declaration.  Rilq/ 
Vanhouton,  4  How.  Mis.  425.  Averments  contrary  to  the  record  are  inadmissible.  nVy/i/ 
v.  Mott,  Kirby,  152.  Busk  v.  Byvanks,  2  Root,  248.  Nor  can  a  defect  in  a  record  be  supplied 
by  averment.    Wood  v.  Commonwealth,  4  Hand.  329. 


436  OF  THE  DECLARATION. 

on  a  condition  precedent,  be  the  condition  or  act  in  the  affirmative  or 
negative,  and  to  be  performed  bj  the  plaintiff  or  defendant,  or  any  other, 
the  plaintiff  ought  in  his  count  to  aver  performance  ;{e)  as  if  a  man  grant 
an  annuity  to  another,  when  he  is  promoted  to  such  a  benefice,  &c.  the 
plaintiff  in  annuity  ought  to  aver  that  he  is  promoted,  (cZ)  &c.  But  when  any 
estate  or  interest  passes  or  vests  immediately,  and  is  to  be  defeated  by  a 
condition  subsequent,  or  matter  ex  post  facto,  be  it  in  the  affirmative  or 
negative,  or  to  be  performed  by  the  plaintiff  or  defendant,  or  by  any  other 
performance  of  that  matter  need  not  be  averred  :(e)  as  if  a 
[  *437  ]  grant  be  of  an  annuity  *to  A.  till  he  be  advanced  to  a  benefice, 
A.  in  annuity  need  not  say  that  he  is  not  yet  advanced. (aa) 

Covenants  or  agreement  are  of  three  kinds  ;  first,  such  as  are  called  mu- 
tual and  independent,  where  either  party  may  recover  damages  from  the 
other,  for  the  injury  he  may  have  received  by  a  breach  of  the  covenants  in 
his  favour,  and  where  it  is  no  excuse  for  the  defendant  to  allege  a  breach  of 
the  covenants  on  the  part  of  the  plaintiff:  Secondly,  there  are  covenants 
which  are  conditions  and  dependent,  in  which,  the  performance  of  one 
depends  on  the  prior  performance  of  another ;  and  therefore  till,  this  prior 
condition  be  performed,  the  other  party  is  not  liable  to  an  action  on  his 
covenant :  Thirdly,  there  is  also  a  sort  of  covenants,  which  are  mutual 
conditions,  to  be  performed  at  the  same  time ;  and  in  these,  if  one  party 
was  ready  and  offered  to  perform  his  part,  and  the  other  neglected  or 
refused  to  perform  his,  he  who  was  ready  and  offered,  has  fulfilled  his 
engagement,  and  may  maintain  an  action  for  the  default  of  the  other, 
though  it  be  not  certain  that  either  is  obliged  to  do  the  first  act. (J) 

The  dependence  or  independence  of  covenants  is  to  be  collected  from 
the  evident  sense  and  meaning  of  the  parties ;  and  however  transposed 
they  may  be  in  the  deed,  their  precedency  must  depend  on  the  order  of 
time,  in  which  the  intent  of  the  transaction  requires  their  performance. (c) 
The  words  by  which  conditions  precedent  are  commonly  created,  are 
for,(d)  in  consideration  of,  ita  quod,{e)  proinde,{f)  &c.  In  general,  if  the 
agreement  be  that  one  party  shall  do  an  act,  and  that  for  the  doing 
thereof  the  other  shall  pay  a  sum  of  money,  the  doing  of  the  act  is 
a  condition  precedent  to  the  payment,  and  the  party  who  is  to  pay  shall 
not  be  compelled  to  part  with  his  money,  till  the  thing  be  performed.(^) 
And  however  improbable  the  thing  may  be,  it  must  be  complied  with,  or 
the  right  which  was  to  attach  on  its  being  performed  does  not  vest :  as  if 
the  condition  be,  that  A.  shall  enfeoff  B.  and  A.  do  all  in  his  power  to 
perform  the  condition,  and  B.  will  not  receive  livery  of  seisin,  it  was  never 

(c)  7  Co.  10,  a.  (d)  PI.  Com.  25,  b.  (e)  7  Co.  10,  a. 

(aa)  7  Co.  10,  a.  PI.  Com.  25,  b.  30,  a.  32,  b ;  and  see  1  Durnf.  &  East,  645.  2  H.  Blac.  579. 
For  the  cases  in  which  it  is,  or  is  not  necessary  to  aver  the  existence  of  a  life,  and  how  it 
may  be  averred,  see  1  Wms.  Saund.  5  Ed.  235,  a,  (8). 

(6)  Per  Lord  Mansfield,  in  the  case  of  Kingston  v.  Preston,  cited  in  Doug.  690,  91.  And 
see  the  several  modern  cases  on  this  subject,  collected  and  arranged  in  Willes,  157,  (a).  1 
Wms.  Saund.  5  Ed.  320,  (4).  2  Wms.  Saund.  5  Ed.  108,  a,  (3).  Sel.  Ni.  Pri.  6  Ed.  108,  &c., 
5i0,  &c.   1  Chit.  PI.  278,  &c.  Lawes,  on  Pleading,  Chap.  V. 

(c)  Doug.  690 ;  and  see  6  Durnf.  &  East,  570,  668.  7  Durnf.  &  East,  130. 

{d)  1  Vent.  177,  214.  2  Wms.  Saund.  5  Ed.  350,  S.  C. 

(e)  2  Ld.  Raym.  766.  (/)  Doug.  688. 

(V)  1  Salk.  171.1  Ld.  Raym.  665,  S.  C. ;  and  see  1  Ld.  Raym.  440,  686.  2  Salk.  623.  Com. 
Rep.  117.  12  Mod.  529,  S.  C.  1  Str.  535,  615.  2Str.  712.  1  Wils.  88.  2  Bur.  899.  2  Blac. 
Rep.  1312.  Doug.  27,  272,  620,  684.  1  Durnf.  &  East,  639.  1  H.  Blac.  270.  4  Durnf.  &  East, 
761.  2  H.  Rlac.  123,  389,  574.  5  Durnf.  &  East,  409.  6  Durnf.  &  East,  570,  665,  710.  7  Durnf. 
&  East,  125.  8  Durnf.  &  East,  366.  1  East,  203.  2  Bos.  &  Pul.  447. 


OP  THE  DECLARATION.  437 

doubted,  but  that  the  right  which  was   to  depend  on  the  performance  of 

the  condition  did  not  arise.(A)     If  a  person  undertake  for  the 

act  of  a  stranger^  the  cases  are  uniform  to  *show  that  such  act  [  MSB  ] 

must  be  performed.(a)     And  where  tliere  are  mutual  promises 

yet  if  one  thing  be  the  consideration  for  the  other,  there  a  performance 

is  in  general  necessary. (W*) 

If  a  day  be  appointed  for  the  payment  of  money,  and  the  day  is  to 
happen  before  the  thing  can  be  performed,  an  action  may  be  brought  for 
the  money,  before  the  thing  is  done :  for  it  appears  tliat  the  party  relied 
upon  his  remedy,  and  intended  not  to  make  the  performance  a  condition 
precedent  :(tr)  But  where  a  certain  day  of  payment  is  appointed,  and  that 
day  is  to  happen  subsequently  to  the  performance  of  the  tiling  to  be  done 
by  the  contract,  in  such  case  the  performance  is  a  condition  precedent, 
and  must  be  averred  in  an  action  for  the  money. (cc)  So  if  two  men  agree, 
one  that  the  other  shall  have  his  horse,  and  the  other  that  he  will  pay  10?. 
for  him,  no  action  lies  for  the  money,  till  the  horse  be  delivered. (cc) 
Another  distinction  to  be  attended  to  is,  that  where  mutual  covenants  go 
to  the  wliolc  of  the  consideration  on  both  sides,  they  are  mutual  condi- 
tions, the  one  precedent  to  the  other ;  but  where  they  go  only  to  a  party 
and  a  breach  may  be  paid  for  in  damages,  there  the  def^dant  has  a 
remedy  on  his  covenant,  and  shall  not  plead  it  as  a  condition  preccdent.((f) 
And  it  is  said,  that  where  the  participle  doing,  performing,  &c.,  is  pre- 
fixed to  a  covenant  by  another  person,  it  is  a  mutual  covenant,  and  not  a 
condition  precedent. (e) 

An  averment  may  be  by  any  words  which  show  the  matter  to  be  as 
stated  ;  as  that  the  plaintiff  avers,  or  in  fact  saith,  or  although,  or  because, 
or  loith  this  that,  <&c.(/)  And  where  there  is  a  condition  precedent,  it  is 
necessary  to  state  in  the  declaration,  that  it  has  been  performed,  or  a 
lawful  excuse  for  its  non-performance. (^)  But  there  are  some  cases  in 
the  books,  respecting  conditions  precedent,  where  the  thing  agreed  to  be 
done  having  been  in  effect  performed,  though  not  in  the  exact  manner, 
nor  with  all  the  circumstances  mentioned,  it  was  deemed  a  substantial 
performance  ;(/i)  as  where  the  condition  was  to  enfeoff,  a  conveyance  by 
lease  and  release  has  been  deemed  sufficient  :(^)  So,  if  the  condition  be  for 
one  to  deliver  the  will  of  the  testator,  and  he  deliver  letters  testamen- 
tary.(A;)  And  wherever  a  man,  by  doing  a  previous  act,  would  actjuire  a 
right  to  any  debt  or  duty,  by  a  tender  to  do  the  previous  act,  if  the  other 
party  refuse  to  permit  him  to  do  it,  he  ac(iuires  the  right  as  completely, 
as  if  it  had  been  actually  done  ;  and  if  the  tender  be  defective,  owing  to 
the  conduct  of  the  other  party,  such  incomplete  tender  will  be  suQicient : 
because  it  is  a  general  principle,  that  he  who  prevents  a  thing 
from  being  done,  shall  not  avail  himself  of  the  *non-performanco   [  *439  ] 

(A)  6  Diirnf.  &  East,  719. 

(a)  6  Durnf.  &  East,  122. 

\bb)  1  Salk.  171.   1  Ld.  Raym.  6G5,S.  C.  6  Durnf.  &  East,  570.   7  Durnf.  &  East,  125. 

\cc)  1  Salk.  171,2.   1  Ld.  Raym.  665,  6,  S.  C. ;  and  see  2  H.  Hlac.  392. 

(d)  1  n.  Blac.  273,  [a] ;  and  see  6  Durnf.  &  East,  572,  3.  8  Durnf.  k  East,  373.  4  East, 
483,  4.  10  East,  295.  1  Moore  &  P.  66.  4  Bing.  409,  S.  C.  1  Chit.  PI.  4  Ed.  281.  Sel.  Ni.  Pri. 
6  Ed.  517,  &c. 

(f)  2  Hlac.  Rep.  1313  ;  and  see  Willes,  146,  496. 

(/)  Com.  Dig.  tit.  Pleader,  C.  77.  Willes,  134,427.  1  Wms.  Saund.  5  Ed.  117,  a,  (4),  235, 
fl,  b.  2  Wms.  Saund.  5  Ed.  61,  .y,  (9). 

(.7)  4  Durnf.  &  East,  761.  6  Durnf.  &  East,  570.  Ox)  G  Durnf.  &  East,  722. 

(i)  Co.  Lit.  207,  a.  {k)  1  Rol.  Abr.  426,  pi.  2,  4. 


439  OF  TEE  DECLARATION. 

which  he  has  occasioned.(a)  The  performance  of  a  condition  pre- 
cedent is  also  excused  by  the  absence  of  the  plaintiff,  in  those  cases 
■where  his  presence  is  necessary  for  the  performance  of  the  condition ;  by 
his  ohstructinf]  or  preventing  the  performance ;  or  by  his  neglecting  to  do 
the  first  act,  if  it  be  incumbent  on  him  to  perform  it  :{h)  It  is  also  excused 
in  some  cases,  by  his  not  giving  notice  to  the  defendant. (c)  When  the 
conditions  are  mutual,  and  to  be  performed  at  the  same  time,  the  plaintiff 
must  aver  that  he  was  ready,  and  offered  to  perform  his  part,  but  the 
defendant  refused  to  perform  }\\^.{dd)  And  when  the  sum  to  be  paid  is 
not  ascertained  by  the  contract,  the  plaintiff  must  aver  the  facts  necessary 
to  ascertain  it :  as,  upon  a  quantum  meruit  or  valebant,  that  the  plaintiff 
deserved  to  have,  or  that  the  goods  were  reasonably  zvorth,  a  certain 
sum,  &c.(ee) 

When  the  contract  is  to  pay  a  collateral  sura  upon  request,  there  the 
request,  being  parcel  of  the  contract,  and  as  it  were  a  condition  precedent, 
ought  to  be  specially  alleged,  with  the  time  and  place  of  making  it  :{ff)  but 
when  the  contract  is  founded  upon  a  precedent  debt  or  duty,  as  in  the  case 
of  a  bond,  or  for  money  lent,(^^)  &c.,  or  is  for  the  payment  of  a  collateral  sum 
on  a  day  certain,(7i)  or  otherwise  than  upon  request  :{i)  or  the  debt  or 
duty  arises  immediately  upon  the  performance  of  the  consideration, (A;) 
there  it  is  not  necessary  to  urge  a  special  request,  but  licet  ssepius  requi- 
situs  is  sufficient ;  which  is  only  a  form  of  pleading,  and  if  it  be  omitted, 
does  not  vitiate  the  declaration. (Z) 

When  the  matter  alleged  lies  more  properly  in  the  knowledge  of  the 
plaintiff  than  of  the  defendant,  there  the  declaration  ought  to  show  that 
notice  was  given  to  the  latter  ;(w)  as  where  the  defendant  promises  to  give 
the  plaintiff  so  much  for  a  commodity  as  it  is  worth,  or  as  any  other  had 
given  him  for  the  like,  or  to  give  so  much  for  every  cloth  the  plaintiff 
should  buy,  or  to  pay  the  plaintiff  what  damages  he  had  sustained  by  a 
battery,  or  to  pay  the  plaintiff's  costs  of  suit  :(m)  And  when  'notice  is 
necessary,  it  ought  to  appear  that  it  was  given  in  due  time,  and  to  a  pro- 
per person. («)  But  when  the  matter  does  not  lie  more  properly  in  the 
knowledge  of  the  plaintiff  than  of  the  defendant,  no  notice  is 
[  *440  ]  requisite  ;(o)  as  in  ^debt  upon  an  obligation,  conditioned  to  per- 
form an  award,  notice  of  the  award  need  not  be  alleged,  because 
the  defendant  may  take  notice  of  it,  as  well  as  the  plaintiff.  So  if,  upon 
a  treaty  of  marriage,  a  promise  be  made  to  the  father  of  the  daughter, 

(a)  Doug.  686 ;  and  see  1  Durnf.  &  East,  638. 

(6)  1  Rol.  Abr.  457,  8. 

(c)  Id.  463,  467,  8 ;  and  see  Co.  Lit.  207,  a. 

{dd)  7  Durnf.  &  East,  130 ;  and  see  7  Taunt.  314.  1  Moore,  56,  S.  C. 
''     \ee)  And  see  further,  as  to  the  averment  of  performance,  or  excuse  of  performance,  in 
assumpsit,  Sel.  Ni.  Pri.  6  Ed.  108,  &c.  1  Chit.  PI.  4  Ed.  277,  &c.  Lawes,  on  Pleading,  Chap. 
V.  VI. ;  and  as  to  the  form  of  averment,  and  the  consequences  of  a  mistake,  1  Chit.  PI.  282,  &c. 

(/)  Com.  Dig.  tit.  Pleader,  C.  69.  1  Wms.  Saund.  33,  a,  (2) ;  and  see  2  H.  Blac.  131.  5 
Durnf.  &  East,  409.  But  the  time  and  place  of  the  request,  being  merely  matter  of  form, 
the  omission  of  them  cannot  be  taken  advantage  of  in  arrest  of  judgment,  since  the  statute 
4  Ann.  c.  16.   10  East,  359. 

{gg)  1  Wms.  Saund.  5  Ed.  32. 

(A)  Owen,  109.  (t)  1  Lutw.  231.  {k)  1  Str.  88. 

[l)  PI.  Com.  128,  b.  Hardr.  38,  72.  1  Bos.  &  Pul.  59,  60.  And  see  further,  as  to  a  request, 
2  Wms.  Saund.  5  Ed.  118,  (3),  123,  (4).  1  Chit.  PI.  4  Ed.  287,  &c.  Lawes,  on  Pleading, 
Chap.  VIII. 

(?n)  Hardr.  42  ;  and  see  16  Vin.  Abr.  tit.  Notice.    5  Durnf.  &  East,  62L 

(n)  Com.  Dig.  tit.  Pleader,  C.  74. 

(o)  Hardr.  42  ;  and  see  1  Wms.  Saund.  5  Ed.  117,  a,  (2). 


OF  THE  DECLARATION.  440 

by  the  father  of  the  son,  to  pay  tlic  daughter  lOOZ.  after  the  death  of  the 
son,  if  she  survive,  and  tlie  son  die,  an  action  may  be  broui^lit  upon  this 
promise ;  and  notice  need  not  be  given  to  the  defenchant  of  the  death  of 
the  son.  (a)  So,  on  a  promise  to  pay  so  much  money  at  the  full  age  of  an 
infant,  notice  of  his  attaining  that  age  need  not  be  given,  because  it  is  as 
notorious  to  the  one  as  to  the  other.(a)  And  in  an  action  on  a  promis- 
sory note,  by  the  indorsee  against  the  drawer,  notice  of  the  indorsement 
need  not  be  averred. (6) 

The  lircdch,  in  a  dechiration  upon  contract,  is  either  nefjative,  that  the 
defendant  has  not  done  something  which  he  contracted  to  do,  or  procured 
it  to  be  done  by  another,  or  that  he  has  not  done  it,  or  procured  it  to 
be  done,  in  a  careful  and  proper  manner;  or  it  is  affirmative,  that  he  has 
done  something  which  he  contracted  not  to  do,  or  suffered  it  to  be  done 
by  another,  or  that  he  has  deceived  the  plaintiif,  on  a  warranty,  &c.  The 
breach  must  be  assigned  in  the  words  of  the  contract,  or  in  words  tanta- 
mount, which  comprehend  the  substance  and  effect  of  it.  Where  a  party, 
however,  has  disabled  himself  from  making  an  estate  he  has  stipulated  to 
make  at  a  future  day,  by  making  an  inconsistent  conveyance  of  that  estate, 
he  is  considered  as  guilty  of  a  breach  of  his  stipulation,  and  he  is  liable 
to  be  sued  before  the  day  arrives. (t*)  And  in  assigning  the  breach  of  a 
covenant  for  quiet  enjoyment,  it  is  sufficient  to  allege,  that  at  the  time  of 
the  demise  to  the  plaintiff,  A.  B.  had  lawful  right  and  title  to  the  pre- 
mises, and  having  such  right  and  title,  entered  and  evicted  the  plaintiff, 
without  showing  what  title  A.  B.  had,  or  that  he  evicted  the  plaintiff  by 
legal  process. (c^)  When  the  damages  sustained  by  the  plaintiff  arc  natu- 
rally connected  Avith  the  breach  of  contract,  it  is  not  usual  to  state  them 
specially  in  the  declaration ;  otherwise  they  should  be  stated,  in  order  to 
prevent  a  surprise  upon  the  defendant.(e) 

In  actions  for  ivrongs,  the  declaration  should  state  the  injury  complained 
of;  and  in  actions  on  the  case,  it  should  set  forth,  by  way  o^  inducement 
the  circumstances  under  which  the  injury  was  committed,  and  the  conse- 
quential damages  resulting  therefrom  to  the  plaintiff. [a]    The  injury  com- 

{a)  Ilardr.  42  ;  and  see  1  Wms.  Saund.  5  Ed.  117,  a,  (2). 

[h)  1  Bos.  &  Pill.  625.  And  see  further,  as  to  notice,  1  Chit.  PI.  4  Ed.  285,  &c.  Lawcs,  on 
Pleading,  Chap.  VII. 

(c)  6  Barn.  &  Crcs.  325. 

\d)  4  Dnrnf.  &  East,  617.  And  see  further,  as  to  the  breach  in  assumpsit,  1  Chit.  PI.  4  Ed, 
290,  &c.  Lawes,  on  Pleading,  Chap.  IX. 

(c)  See  further,  as  to  the  diima<jes  in  a.ssumpnit,  1  Chit.  PI.  4  Ed.  296,  7.  And  as  to  tho 
mode  of  declaring  in  general  in  uxsumpnit,  see  id.  259,  &c.  Lawes,  on  Pleading,  Chap.  I.  to 
XV.  inclusive  ;  in  debt,  1  Chit.  PI.  309,  &c. ;  and  in  covenant,  id.  325,  &c. 

[a]  "Whenever  a  sura  of  money  is  sought  by  an  action  at  law,  this  sum  is,  in  our  legal 
English,  called  damages.  No  more  distinct  sense  tlian  this  can  be  given  to  tlie  term  da- 
mages, which  has  wliolly  lost,  in  its  legal  use,  both  its  i)opular  sense  of  hurt  and  its  etymo- 
logical sense  of  subtraction  of  right;  while,  on  tlio  other  hand,  it  has  come  to  signify  a 
multitude  of  pecuniary  obligations,  which  have  nothing  in  common  but  this  one  result — a 
money  payment  by  judgment  of  law."     Law  Rev.  for  Feb.  185C,  p.  247. 

"  Damages — dumua  in  the  common  law,"  says  Lord  Cofce,  Co.  Litt.  257,  a,  "hath  a  spe- 
cial signification  for  the  recompense  that  is  given  by  the  jury  to  the  plaintiflf,  for  tho  wrong 
the  defendant  hath  done  unto  iiim." 

"  It  is  a  general  and  very  sound  rule  of  law,"  said  Sedgwick,  J.,  delivering  the  opinion  of 
the  Supreme  Court  of  Massachusetts,  liockwnod  v.  Allen,  7  Mass.  p.  254,  "  tliat  where  an 
injury  has  been  sustained,  for  which  the  law  gives  a  remedy,  that  remedy  shall  be  commen- 
surate to  the  injury  sustained." 

"  It  is  a  natural  and  legal  principle,"  said  Shippm,  Chief  Justice  of  the  Supreme  Court  of 

Vol.  I.— 28 


440  OF  TEE  DECLARATION. 

plained   of  is  immediate  or  consequential.     When  it  is  immediate^  and 
included  in  the  act  complained  of,  there  it  is  sufficient  to  state  that  act 

Pennsylvania,  Buksij  v.  Donaldson,  4  Dallas,  206,  "  that  the  compensation  should  be  equiva- 
lent to  the  injury." 

"  The  general  rule  of  law,"  said  Start/,  J.,  to  the  jury  on  the  Rhode  Island  circuit,  Dexter 
V.  Spear,  4  Mason,  115,  "is  this:  whoever  does  an  injury  to  another,  is  liable  in  damages 
to  the  extent  of  that  injury.  It  matters  not  whether  the  injury  is  to  the  property,  or  the 
person,  or  the  rights  or  the  rei)utation  of  another." 

And  this  compensation  is  awarded  according  to  certain  rules  of  law  which  the  jury  are 
not  at  liberty  to  disregard,  and  which  equally  control  the  conduct  of  the  court. 

"  In  cases,"  said  Washington,  J.,  on  the  Pennsylvania  circuit,  Walker  v.  Smith,  1  Wash. 
C.  C.  R.,  152,  "  where  a  rule  can  be  discovered,  the  jury  are  bound  to  adopt  it.  That  rule 
is,  that  the  plaintiff  should  recover  so  much  as  will  repair  the  injury  sustained  by  the  mis- 
conduct of  the  defendant."  In  regard  to  the  rate  of  damages  on  a  foreign  bill  of  exchange, 
the  New  York  Court  of  Errors  said:  "In  this,  as  in  other  cases  of  contract,  the  rule  by 
which  the  amount  or  extent  of  redress  should  be  ascertained,  is  a  question  of  law."  Graves 
V.  Dash,  12  John.  R.  17."  Sedgwick  on  Dam.  29. 

Wherever  the  breach  of  an  agreement  or  the  invasion  of  a  right  is  established,  the  Eng- 
lish law  infers  some  damage  to  the  plaintiff;  and  if  no  evidence  is  given  for  any  particular 
amount  of  loss,  it  declares  the  right  by  awarding  what  it  terms  nominal  damages,  being 
some  very  small  sum,  as  a  farthing,  a  penny,  or  sixpence — ulijiis,  Hi  remedium. 

"Every  injury,"  said  Lord  Holt,  "imports  a  damage."  Ashby  v.  White,  1  Salk.  19.  So 
again,  in  the  same  case,  as  elsewhere  reported,  his  lordship  said  :  "  My  brother  Fowell,  in- 
deed, thinks  that  an  action  upon  the  case  is  not  maintainable,  because  there  is  no  hurt  or 
damage  to  the  plaintiff;  but  surely  every  injury  imports  a  damage,  though  it  does  not  cost 
the  party  one  farthing ;  and  it  is  impossible  to  prove  the  contrary,  for  a  damage  is  not 
merely  pecuniary,  but  an  injury  imports  a  damage,  where  a  man  is  thereby  hindered  of  his 
right.  As  in  an  action  for  slanderous  words,  though  a  man  does  not  lose  a  penny  by  rea- 
son of  the  speaking  them,  yet  he  shall  have  an  action.  So  if  a  man  gives  another  a  cuff  on 
the  ear,  though  it  cost  him  nothing,  no,  not  so  much  as  a  little  diachylon,  yet  he  shall  have 
his  action,  for  it  is  a  personal  injury.  So  a  man  shall  have  an  action  against  another  for 
riding  over  his  ground,  though  it  do  him  no  damage,  for  it  is  an  invasion  of  his  property, 
and  the  other  has  no  right  to  come  there."     2  Lord  Raym.  955. 

"  Wherever,"  says  Mr.  Sergeant  Williams,  "any  act  injures  another's  right,  and  would  be 
evidence  in  future  in  favour  of  the  wrong-doer,  an  action  may  be  maintained  for  an  invasion 
of  the  right,  without  proof  of  any  specific  injury."     1  Saunders,  346,  a. 

"  It  has  been  said  that  the  effect  of  our  law  is  to  give  in  damages  what  it  calls  compensa- 
tion. When,  however,  we  come  to  analyze  this  phrase,  we  shall  find  its  juridical  interpre- 
tation a  very  restricted  one.  Injury  resulting  from  the  acts  or  omissions  of  others,  free 
from  anj'  taint  of  fraud,  malice,  or  wilful  wrong,  consists  : — 

First.  Of  the  actual  pecuniary  loss  directly  sustained;  as  the  amount  of  the  note  unpaid; 
the  value  of  the  property  paid  for,  but  not  delivered. 

Second.  Of  the  indirect  pecuniary  loss  sustained  in  consequence  of  the  primary  loss  ;  the 
profits  that  might  have  been  made  if  the  contract  had  been  performed  ;  the  derangement 
and  disturbance  produced  by  the  failure  of  others  to  comply  with  their  engagements,  and 
the  consequent  inability  of  those  who  depend  on  them  to  adhere  to  their  own ;  loss  of  credit; 
loss  of  business;  insolvency. 

Third.  Of  the  mental  suffering  produced  by  the  act  or  omission  in  question;  vexation; 
anxiety. 

Fourth.  The  value  of  the  time  consumed  in  establishing  the  contested  right  by  process 
of  law,  if  suit  become  necessary. 

Fifth.  The  actual  expenses  incurred  to  obtain  the  same  end,  costs  and  counsel  fees. 
To  these  one  further  element  is  to  be  added  in  those  cases  where  the  aggressor  is  ani- 
mated by  a  fraudulent,  a  malicious,  or  an  oppressive  intention,  and  that  is  : 

Sixth.  The  sense  of  wrong,  or  insult,  in  the  sufferer's  breast,  resulting  from  an  act  dic- 
tated by  a  spirit  of  wilful  injustice,  or  by  a  deliberate  intention  to  vex,  degrade,  or  insult. 
This  constitutes  the  difference,  and  the  only  difference,  between  the  injury  produced  by  in- 
ability, and  that  produced  by  design.  All  the  other  constituents  are  the  same.  The  pecu- 
niary loss,  direct  and  indirect;  the  anxiety,  the  time  and  expense  are  the  same,  whether  a 
wrong  be  done  through  the  honest  inability,  the  wilful  fraud,  or  the  deliberate  malice  of 
the  offending  party.  But  in  the  two  latter  cases,  the  last  element  is  superadded;  a  sense 
of  wrong  or  insult  which  does  not  exist  in  the  former. 

All  these  items  must,  therefore,  be  taken  into  the  account  in  any  effort  to  make  complete 
compensation,  in  the  ordinary  acceptation  of  the  word.  But  we  shall  find  that  the  legal 
meaning  of  the  term  is  very  different.  We  shall  find  that  in  cases  of  contract,  as  a  general 
rule,  the  law  takes  no  notice  whatever  of  the  motives  of  the  defaulting  party;  that  whether 


OF  THE  DECLARATION.  440 

alone  In  the  declarfition,  as  in  trespass  vi  et  arinis.  The  cJiarr/e  in  such 
case  ought  to  be  direct  ami  positive,  and  not  merely  by  way  of  recital : 
Therefore,  a  declaration  by  lull,  stating  that  wlnrcaH,  or  where- 
fore the  defendant  *did  the  act  complained  of,  is  bad  on  special  [  '441  ] 
demurrer ;  and  was  formerly  holdcn  to  be  so,  in  arrest  of  judg- 
ment ;(a)  But  now  it  may  be  amended  at  any  time  before  or  after  judg- 
ment, by  a  right  bill ;  the  time  of  iiling  whereof  the  court  will  not  incjuire 
into  '.[J))  And  by  oricjinal,  the  court  part  being  hcdpcd  by  the  recital  of 
the  writ,  this  fault  is  not  fatal,  even  on  a  special  dc'murrer.(t') 

When  the  ilamaijes  in  trespass  are  such  as  naturally  arise  from  the  act 
complained  of,  or  cannot  with  decency  be  stated,  they  may  be  given  in  evi- 
dence under  the  rt?2rt  eworm/a;  but  otherwise  they  must  be  stated  in  the 
declaration  :{d)  And  many  things  may  be  laid  and  proved  in  aggravation 
of  damages,  for  which  alone  trespass  would  not  lie :  as  trespass  may  be 
brought  for  entering  the  plaintiff's  house,  and  beating  his  wife,(tr)  child, 
or  servant,(/)  and  the  beating  may  be  given  in  evidence,  to  aggravate 
the  damages :  but  in  such  case,  the  plaintiff  cannot  recover  damages  for 
losing  the  service  of  his  child  or  servant,  because  he  may  have  a  proper 
action  for  that  injury.(^)  So,  trespass  will  lie  for  breaking  and  enter- 
ing the  plaintiff's  house,  under  a  false  and  unfounded  charge  and  assertion 
that  the  plaintiff  had  stolen  property  therein,  jjer  quod  he  was  injured  in 
his  credit,  &c. ;  and  the  jury  may  give  damages  for  the  trespass,  as  it  is 
aggravated  by  such  false  charge. (A)  So,  in  trespass  qiiare  domumfreyit^ 
he  may  give  in  evidence  that  the  defendant  came  into  his  house,  and 
debauched  his  daughter ;(/)  or  that  his  wife  was  so  terrified  by  the  con- 

(rt)  2  Salk.  636.  iStr.  621.  (i)  2  Str.  1151, 1162. 

(c)  1  Wils.  99.  Barnes,  452,  S.  C.  2  Wils.  203.  And  see  further,  as  to  the  statement  of 
the  injur;/,  in  actions  for  wrongs,  1  Chit.  PI.  4  Ed.  336,  &c. 

((/)  Pealie's  Cas.  Ni.  Pri.  3  Ed.  64,  87  ;  and  see  1  Sid.  225. 

(ee)  1  Str.  61  ;  and  see  Cro.  Jac.  501.  1  Stark.  Ni.  Pri.  98. 

(/)  2  Salk.  642.  Holt,  699,  S.  C.  2  Ld.  Raym.  1032.  6  Mod.  127.  Holt,  699,  S.  C. 

(<7)  2  Sulk.  642.  Holt,  699,  S.  C.  Bui.  Ni.  Pri.  89  ;  but  see  Cro.  Jac.  501. 

(h)  2  Maule  &  Sel.  77 ;  and  see  5  Taunt.  442.    1  Marsh.  139,  S.  C. 

[i)  1  Sid.  225.  2  Ld.  Raym.  1032.  6  Mod.  127.  Holt,  699,  S.  C.  3  Bur.  1878.  2  Durnf.  k 
East,  166.    Bui.  Ni.  Pri.  89. 

the  engagement  be  broken  through  inability  or  design,  the  amount  of  remuneration  is  the 
same  ;  and  that  in  these  cases,  as  well  as  in  those  of  torts  or  breach  of  duty  of  any  kind, 
where  there  is  no  complaint  of  fraud,  malice,  nor  wilful  negli^^ence,  of  all  the  lu^ads  of  loss 
above  enumerated,  only  the  first  and  fifth  are  taken  into  consideration,  and  the  latter  but 
imperfectly. 

In  all  cases  growing  out  of  contracts,  and  in  those  of  infringment  of  rights,  or  non-per- 
forniance  of  duties,  created  or  imposed  by  the  law,  in  which  there  is  no  element  of  fraud, 
wilful  negligence,  or  malice,  the  compensation  recovered  in  damages,  consists  solely  of  the 
direct  pecuniary  loss,  which  includes,  in  mere  monc}-  demands,  interest  for  the  detention  of 
the  amount  claimed,  and  the  costs  of  the  suit  brougiit  for  the  recovery  of  the  demand.  No 
indirect  loss  is  accounted  for.  No  allowance  is  made  for  the  mental  sujfering  of  the  party 
who  complains  of  the  non-i)erformancc  of  his  contract,  or  the  infringement  of  his  rights, 
which,  indeed,  it  may  be  said  the  law  possesses  no  scale  to  measure.  This,  however,  is  not 
the  reason  ;  for  as  little  does  it  take  into  consideration  the  time  actually  consumed,  and  the 
fees  actually  paid  to  counsel  for  the  establishment  of  the  demand  in  controversy.  In  this 
class  of  cases,  the  direct  pecuniary  loss,  and  the  costs  of  the  suit,  arc  all  that  the  law  means 
when  it  speaks  of  compensation.  In  fact,  unless  the  word  is  used  in  a  technical  sense,  it  is 
altogether  inaccurate  to  speak  of  damages  as  resulting  in  compensation  ;  and  whatever  re- 
stricted meaning  this  term  may  be  supposed  to  have  tedinically  acquired,  it  is,  at  all  events, 
entirely  incorrect  to  say,  in  the  language  which  has  been  used  by  various  eminent  judges, 
that  "the  remedy  is  commensurate  to  the  injury."  This  language  attributes  to  legal  relief 
a  degree  of  perfection  which  it  is  very  far  from  possessing."     Sedgwick  on  Dam.  35. 


441  OF  THE  DECLARATION. 

duct  of  the  defendant,  that  she  was  immediately  taken  ill,  and  soon  after- 
wards died.(^)  But,  in  trespass  quare  clausum  fregit,  the  phiintiff  would 
not  be  permitted  to  give  evidence  of  the  defendant's  taking  away  a 
horse,(?)  &c. ;  and  in  other  cases,  the  evidence  is  allowed  to  be  given,  not 
as  a  substantive  ground  of  action,  but  merely  to  show  the  evidence  of  the 
defendant's  conduct. (A;) 

Consequential  injuries,  we  have  secn,(w)  arise  from  mal-feazance,  non- 
feazanee,  or  mis-feazance.  In  actions  for  mal-feazance,  three  things  are  to 
be  attended  to  in  the  declaration  ;  first,  the  7notive,  if  any,  which  urged  the 
defendant  to  the  commission  of  the  act  complained  of;  secondly,  the  end 
which  he  had  in  view  ;  and  thirdly,  the  means  which  he  took  of  accomplish- 
ing it.  Thus,  in  an  action  for  defamation,  the  motive  is  malice,  the  end 
proposed  is  to  injure  the  plaintiff  in  his  good  name,  &c.  and  the  means  are 
the  words  spoken  by  the  defendant  for  that  purpose.  In  actions  for  mal- 
feazance,  the  motive  is  either  malice,  which  generally  speaking 
[  *442  ]  *leads  to  the  commission  of  injuries  to  the  person,  or  the  gratifica- 
tion of  self-interest  at  the  expense  of  another ;  and  accordingly,  the 
end  which  the  defendant  has  in  view,  is  either  to  injure  the  plaintiff,  or  to 
benefit  himself:  and  the  tneanshe  takes  of  accomplishing  his  intention,  are 
either  direct  and  open,  or  under  colour  of  legal  process,  or  by  deceit,  which 
is  either  where  there  is  a  privity  between  the  parties,  as  upon  a  sale  of 
goods,  &c.  or  where  there  is  no  such  privity.  In  actions  for  non-feazance,  or 
mis-feazance,  the  injury  frequently  proceeds  from  a  mere  neglect,  without 
any  bad  motive  imputable  to  the  defendant. [a] 

The  circumstances  attending  the  several  injuries  before  mentioned,  and 
which  should  be  stated  by  way  of  inducement,  are  various,  according  to  the 
nature  and  grounds  of  the  action.     In  general,  they  disclose  some  right  or 

{h)  iStark.  Ni.  Pri.  93  ;  but  see  Peake's  Cas.  Ni.  Pri.  3  Ed.  87  ;  and  see  2  Phil.  End.  134,  5 
(I)  1  Sid.  225.  Bui.  Ni.  Pri.  89.  [m)  Ante,  4. 

[a]  "Where  two  parties  have  made  a  contract  which  one  of  them  has  broken,  the  da- 
mages which  the  other  party  ought  to  receive  in  respect  of  such  breach  of  contracfshould 
be  such  as  may  fairly  and  reasonably  be  considered  either  arising  naturally,  i.  e.,  according 
to  the  usual  course  of  things,  from  such  breach  of  contract  itself,  or  such  as  may  reason- 
ably be  supposed  to  have  been  in  the  contemplation  of  both  parties,  at  the  time  they  made 
the  contract,  as  the  probable  result  of  the  breach  of  it.  Now,  if  the  special  circumstances 
under  which  the  contract  was  actually  made  were  communicated  by  the  plaintiffs  to  the 
defendants,  and  thus  known  to  both  parties,  the  damages  resulting  from  the  breach  of  such 
a  contract,  which  they  would  reasonably  contemplate,  would  be  the  amount  of  injury  which 
would  ordinarily  follow  from  a  breach  of  contract  under  these  special  circumstances  so 
known  and  communicated.  But,  on  the  other  hand,  if  these  special  circumstances  were 
wholly. unknown  to  the  party  breaking  the  contract,  he,  at  the  most,  could  only  be  supposed 
to  have  had  in  his  contemplation  the  amount  of  injury  which  would  arise  generally,  and  ia 
the  great  multitude  of  cases  not  affected  by  any  special  circumstances,  from  such  a  breach 
of  contract.  For  had  the  special  circumstances  been  known,  the  parties  might  have  spe- 
cially provided  for  the  breach  of  contract  by  special  terms  as  to  the  damages  in  that  case  ; 
and  of  this  advantage  it  would  be  very  unjust  to  deprive  them."  Per  Aide rsoti,  B.,  in  Iladley 
V.  Baxendale,  9  Ezc.  R.  354.  And  in  a  very  late  case,  Fletcher  v.  Taylor,  17  C.  B.  21,  Crow- 
der,  J.,  referring  to  Iladlcy  v.  Baxendale,  directed  the  jury  in  regard  to  the  proper  measure 
of  damages  in  these  terms,  that  "  where  two  parties  have  made  a  contract,  which  one  of 
them  has  broken,  the  damages  which  the  other  party  ought  to  receive,  in  respect  to  such 
breach  of  contract,  should  be  such  as  may  fairly  and  reasonably  be  considered  either  aris- 
ing naturally,  that  is,  according  to  the  usual  course  of  things,  from  such  breach  of  contract 
itself,  or  such  as  may  reasonably  be  supposed  to  have  been  in  the  contemplation  of  both 
parties  at  the  time  they  made  the  contract,  as  the  probable  result  of  the  breach  of  it."  See 
also  Taylor  \.  Maguire,  12  Missouri,  313.  Freeman  v.  Clute,  3  Barb.  S.  C.  324.  Green  v. 
Mamiing,  11  111.  613.  Furlong  v.  Pollcys,  30  Maine,  491.  Johnson  v.  Small,  2  Gushing, 
40.  Myers  v.  Perry,  I  Ann.  Rep.  Louis,  373.  Sugden  v.  Jenkins,  2  Sandf.  S.  C.  614.  Bos- 
worth  V.  Brand,  1 1)ana,  377.     Harrison  v.  Berkeley.  1  Sirobharjt,  525. 


OF  THE  DECLARATION.  442 

title  in  the  plulntifT,  or  some  diifj/  to  be  performed  by  the  defendant.  In 
actions  for  wrongs,  afTccting  the  absolute  rights  of  persons,  the  right  to 
personal  security,  being  implied,  need  not  be  stated  in  the  declaration  ;  as 
in  actions  of  assault  and  battery^  <fcc.  But  wlicn  the  wrongs  coinphiined 
of  affect  the  relative  rights  of  persons,  the  rehition  should  be  stated,  in 
respect  of  which  the  plaintiff  is  injured ;  as  in  actions  for  criminal  con- 
versation^ &c. :  And  when  an  action  is  brought  for  defamation,  it  is  usual 
to  state  in  the  declaration,  by  way  of  inducement,  that  the  phiintiff  is  a 
person  of  good  name,  etc.,  and  has  not  been  guilty  of  the  crime  imputed 
to  him. (a) 

In  actions  for  wrongs  to  real  or  personal  property,  the  plaintiff's  right 
or  title  must  be  set  forth  in  the  declaration,  either  generally  or  specially. 
When  a  special  title  is  necessary  to  maintain  the  action,  it  must  be  stated 
with  certainty  :(/>)  If  a  man  allege  in  himself  a  title  to  the  inheritance  of  free- 
hold of  lands  in  possession,  he  ought  regularly  to  say  that  he  was  seised  ;{c) 
or,  if  he  allege  possession  of  a  term  for  j-ears,  or  other  chattel  real,  that  he 
was  jjosscssed  :(c)  So,  if  he  allege  seisin  of  things  manurable,  as  of  lands, 
tenements,  rents,  &c.  he  should  say  that  he  was  seised  in  his  demesne  as  of 
fee  ;{d)  if  of  things  not  manurable,  as  of  an  advowson,  that  he  was  seised  as 
of  fee  and  riyht,  omitting  in  his  demesne  :{d)  And  it  is  a  rule,  that  when 
title  is  necessary  to  be  shown,  if  the  plaintiff  derive  a  particular 
estate  from  another,  he  ought  to  show  that  the  other  had  such  an  [  *443  ] 
•interest  as  would  enable  him  to  make  the  estate. (««)  The  reason 
•why  the  commencement  of  particular  estates  must  be  shown  in  pleading 
is,  because  they  are  created  by  agreement  out  of  the  primitive  estate ; 
and  the  court  must  judge,  whether  the  primitive  estate  and  agreement  be 
sufficient  to  produce  the  particular  estate  claimed :  And  this  is  a  funda- 
mental rule,  which  ought  not  to  be  broken  upon  fancied  inconveniences. (i6) 
It  is  also  a  rule,  that  if  the  plaintiff  claim  under  one  Avho  has  only  a  par- 
ticular estate,  as  for  life,  he  must  aver  the  continuance  of  that  estate. (cc*) 

In  setting  forth  a  title  to  incorporeal  hereditaments,  the  plaintiff  must 
show  that  it  Avas  by  grant,  custom,  or  prescription.  A  grant  ought  regu- 
larly to  be  pleaded,  with  a profei't  in  curid  of  the  deed  containing  it;  but 
where  the  deed  is  lost  or  destroyed,  by  accident  or  length  of  time,  it  may 
be  pleaded  without  a  profert.{dd)     Custom  is  properly  a  local  usage,  and 

{a)  Com.  Dig.  tit.  Action  upon  tlie  dtxc  for  Drfamation,  G.  I.  And  as  to  the  indiiremcnt 
in  a  decimation  for  a  UM,  see  1  Younge  &  J.  480.  7  Barn.  &  Cres.  459.  1  .Moore  &  P.  402. 
4  Bing.  48U,  S.  C. 

(i)  As  to  the  mode  of  stating  or  setting  forth,  in  a  declaration  or  other  pleading,  the  srisin 
of  the  king,  see  1  Wms.  Saund.  5  Ed.  187,  (1),  seisin  of  a  corporation,  sole  or  aggregate,  id. 
ibid,  seisin  of  a  husband, jure  uxori.i  id.  253,  (4).  2  Wms.  Saund.  5  Ed.  283,  (I),  leaie  and  re- 
lease, id.  10,  (15),  11,  (1(3),  bargain  and  sale  inroUed,  1  Wms.  Saund.  5  Ed.  251,  (2),  251,  a, 
(3).  2  Wms.  Saund.  5  Ed.  11,  (18),  12,  a.  {2Q),  feoffment,  2  Wms.  Saund.  5  Ed.  9,  c.  fine  and 
proclamations,  1  Wms.  Saund.  5  Ed.  258,  a.  (8).  2  Wms.  Saund.  5  Ed.  175,  /.  g.  (1,  2,  4), 
devise.  1  Wms.  Saund.  5  Ed.  276,  c.  (2),  lease  or  dcmixe,  id.  276,  (1),  lease  of  tithes.  2  Wms. 
Saund.  5  Ed.  297,  (1),  entnj  under  lease,  ,^-c.  1  Wms.  Saund.  5  Ed.  147,  (2),  202,  n.  [\),  in- 
teresse  termini,  id.  251,  (1),  assignment  of  term,  or  reversion,  id.  234,  (3),  238,  (2),  oltnrnment, 
id.  234,  b.  (4),  or  a  copyhold  title,  id.  318,  (8,  9).  As  to  the  mode  of  setting  forth  the  title  in 
declarations  in  covenant,  see  2  Chit.  Pi.  4  Ed.  209,  &c.  And  see  further,  as  to  the  showing 
of  title  in  declarations  and  other  pleadings,  Stcph.  PI.  321,  &c. 

(c)  Co.  Lit.  17,  a. 

\d)  Lit.  ?  10;  and  see  Com.  Dig.  tit.  Pleader,  C.  35.  2  Ros.  k  Pul.  574. 

(art)  Com.  Dig.  tit.  Pleader,  C.  36  ;  and  sec  Stcph.  PL  328,  &c. 

(bh)  2  Salk.  562  ;  and  see  3  Wills.  72. 

\cc)  Cora.  Dig.  tit.  Pleader,  C.  66. 

(cW)  3  Duruf.  &  East,  151.     And  for  the  cases  in  which  a  profert  in  curid  is  necessary,  or 


4J.3  or  THE  DECLARATION. 

not  annexed  to  any  particular  2^&'>'son  ;  such  as  a  custom  within  a  manor, 
that  land  shall  descend  to  the  youngest  son,  or  that  copyholders  shall  have 
a  right  of  common,  &c.  Fi-eseription  is  altogether  n  personal  usage  ;  and 
is  cither  in  a  que  estate,  or  in  a  man  and  his  ancestors :  the  former  is 
where  the  right  claimed  is  annexed  to,  and  passes  with  the  land,  in  which 
case  the  plaintift'  states  that  he,  and  all  those  whose  estate  he  hath  therein, 
have  immemorially  had  such  right ;  the  latter  is  where  the  right  is  not 
annexed  to  the  land,  but  lies  in  grant,  in  which  case  the  plaintiff  must 
aver  that  he,  and  his  ancestors,  have  immemorially  enjoyed  it.(e) 

But  in  personal  actions,  it  is  seldom  necessary  to  state  a  title  specially 
in  the  declaration ;  for  damages  are  the  gist  of  these  actions,  and  the  title 
only  matter  of  inducement :(/)  And  it  is  a  general  rule  therein,  that7:»os- 
session  is  sufficient  evidence  of  title,  against  a  wrong-doer  ;{g)  as  in  tres- 
pass quare  clausum  f regit, (Jt)  &c.  So,  in  an  action  on  the  case  for  Sb  nuisance 
to  the  plaintiff's  house,  &c.  it  is  sufficient  for  the  plaintiff  in  his  declara- 
tion, to  state  generally  that  he  was  lawfully  possessed  of  the  house,  or 
other  property  affected  by  the  injury  complained  of  :(z)  and  if  the  decla- 
ration be  for  stopping  up  lights,  it  goes  on  to  state,  that  by  reason  of  his 
possession  he  had,  and  of  right  ought  to  have,  the  lights  that  have  been 
obstructed. (^)  In  like  manner,  the  plaintiff,  in  an  action  for 
[  *444  ]  diverting  a  luater-course  from  *his  mill,  need  only  state,  that  he 
was  possessed  of  the  mill,  and  that  the  water  had  been  accus- 
tomed, and  of  right  ought  to  flow  thereto,  without  stating  that  it  was  an 
ancient  mill,  or  disclosing  the  grounds  upon  which  the  right  to  the  water 
is  claimed,  (aa) 

In  an  action  upon  the  case  for  the  disturbance  of  rights  of  common,{h) 
&c.,  there  is  said  to  be  this  distinction  :  When  the  action  is  brought 
against  a,  tvrong-doer,  it  is  sufficient  for  the  plaintiff  to  state  in  his  declara- 
tion, that  he  was  possessed  of  a  house  or  land,  &c.,  and  by  reason  of  his 
possession  thereof,  was  entitled  to  the  right,  in  the  exercise  of  which  he 
has  been  disturbed.  But  when  the  plaintiff  would  lay  any  charge  or 
servitude  on  the  land  or  property  of  another,  he  must  set  forth  his  title 
specially  in  the  declaration. (c)     Thus,  in  an  action  on  the  case  against  a 

may  be  dispensed  with,  and  as  to  the  demand  and  giving  of  oyer,  and  the  manner  of  set- 
ting out  deeds,  &c.,  thereon,  see  1  Wms.  Saund.  5  Ed.  9,  (1),  9,  b.  (1),  289,  (2),  317,  (2).  2 
Wms.  Saund.  5  Ed.  9,  b.  c.  (12,  13),  46,  b.  (1),  36G,  (1),  405,  (1),  409,  (2).  Staph.  PI.  439, 
&c. 

(e)  And  see  further,  as  to  customs  and  prescriptions,  what  may  or  may  not  be  claimed  by 
them,  1  Wms.  Saund.  5  Ed.  341,  (3),  348,  (10),  how  the  chiim  should  be  made  by  a  corpo- 
ration, id.  340,  (2),  341,  (3),  as  to  a  custom  for  a  corporation  to  exclw^Q  foreigners  from  buying 
and  selling,  id.  312,  c.  d.  (3),  or  a,  prescription  for  tenants  to  have  the  sole  and  several  pasture, 
&c.,  in  exclusion  of  the  lord,  or  owner  of  the  soil,  id.  353,  (2),  and  as  to  a  custom  or  pre- 
scription for  comvwn,  &c.,  by  copyholders,  id.  341,  (3),  349,  (11,  12). 

(/■)  10  Co.  59,  b.  (^r)  Steph.  PI.  323,  &c. 

(h)  2  Bulst.  288.  {i)  Rol.  Rep.  393. 

{k)  Cro.  Car.  325.   1  Show.  18. 

{aa)  1  Leon.  247.  Palm.  290.  Cro.  Car.  499,  575.  3  Mod.  48.  3  Lev.  133,  S.  C. 
'  {b)  1  Vent.  319.  4  Mod.  418.  And  for  the  manner  of  declaring  for  the  disturbance  of  rights 
of  way,  see  1  Vent.  274.  2  Lev.  148.  3  Keb.  528.  3  Lev.  266.  1  Lutw.  120.  2  Ld.  Raym.  751, 
1090.  3  Ld.  Raym.  85;  of  offices,  10  Co.  59,  b.  Cro.  Eliz.  335  ;  oi  franchises,  4  Mod.  423.  1 
Show.  18;  of  tolls,  Owen,  109.  Cro.  Jac.  43,  122,  3.  3  Lev.  190.  2  Lutw.  1517;  of  ferries, 
Willes,  508;  and  of  scats  in  churches,  1  Lev.  71.  1  Sid.  203,  S.  C.  2  Lev.  193.  3  Lev.  73.  1 
Wils.  326.  1  Durnf.  &  East,  428.  See  also  1  Wms.  Saund.  5  Ed.  346,  (2).  2  Wms.  Saund. 
5  Ed.  113,  (1),  172,  (1),  175,  (2).  2  Chit.  PI.  4  Ed   807,  &c. 

(c)  4  Mod.  421.  1  Str.  5.  Willes,  619.  1  Bur.  440.  4  Durnf.  &  East,  713.  Sed  qucere  as  to 
this  distinction?  and  see  3  Durnf.  &  East,  768.  2  Wms.  Saund.  5  Ed.  113,  (1).  1  Chit.  PL 
4  Ed.  330. 


OF  THE  DECLARATION.  444 

stranger  and  wrong-Jocr,  for  disturbing  the  plaintiff  in  the  use  of  a  seat 
in  a  church,  no  title  or  consideration  is  necessary  to  be  shown  :  But  when 
the  plaintiff  claims  against  the  ordinary  himself,  who  hath  jyrimii  facie  the 
disposal  of  all  the  scats  in  the  church,  he  ought  to  show  some  cause  or 
consideration,  as  building,  repairing,((Z)  kc.  And  though,  in  the  other 
case,  the  plaintilT  is  allowed  to  declare  upon  his  possession,  yet  ho  must 
prove  his  title  at  the  trial :  And  possession  for  above  aixty  years  of  a  pew 
in  a  church,  is  not  a  sufficient  title  to  maintain  an  action  on  the  case,  for 
disturbance  in  the  enjoyment  of  it ;  but  the  plaintiff  must  prove  a  pre- 
scriptive right,  or  a  faculty,  and  should  claim  it  in  his  declaration,  as 
appurtenant  to  a  messuage  in  the  parish. ((^)  In  declaring  for  wrongs  to 
personal  property,  the  plaintiff  must  state  his  right ;  as,  in  trespass  for 
taking  goods,  that  they  were  his  own  goods  ;{/)  or  in  trover,  that  he  was 
possessed  of  them,  (&c. :  And,  in  a  declaration  in  replevin,  for  taking 
goods,  the  description  number  and  value  of  them  must  bo  stated  with 
certairity.((7) 

In  actions  upon  the  case  for  a  breach  of  duty,  the  declaration  sliould 
state  the  nature  of  the  duty  to  be  performed  by  the  defendant :  which  is 
founded  on  the  general  obligation  of  law,  the  defendant's  particular 
situation,  or  some  contract  or  agreement  between  the  parties.  When  the 
defendant  is  liable  of  common  right,  as  to  repair  a  wall,  for  preventing 
damage  to  his  neighbour,  it  is  not  necessary  for  the  plaintiff  to  show  a 
title  in  his  declaration,  or  the  special  ground  of  the  defendant's  liability  :(/t) 
But  when  a  charge  is  imposed  on  another  against  common  right, 
as  owner  of  the  soil  *or  tertenant,  it  was  formerly  holden,  that  [  *4-4.j  ] 
a  title  must  be  shown  ;  as  in  an  action  for  not  repairing  fences, (a) 
&c.  So,  where  a  special  action  on  the  case  was  brought  against  the 
defendant,  for  not  keeping  a  bull  and  a  boar,  the  declaration  was  holden 
bad  on  demurrer,  for  not  setting  forth  that  the  defendant  was  obliged  to 
keep  them,  either  by  custom,  prescription,  or  othcrwise.(W)  But  in  a 
late  case,  where  an  action  was  brought  for  not  repairing  a  private  road, 
leading  through  the  defendant's  close,  it  was  holden  to  be  sulKcient  to 
allege,  that  the  defendant,  as  occupier  of  the  close,  Avas  bound  to  repair 
it  :{cc)  And,  per  Bullcr  Justice,  "  the  distinction  is,  between  cases  where 
the  plaintiff  lays  a  charge  upon  the  right  of  the  defendant,  and  where  the 
defendant  himself  prescribes  in  right  of  his  own  estate  :  In  the  former 
case,  the  plaintiff  is  presumed  to  be  ignorant  of  the  defendant's  estate, 
and  cannot  therefore  plead  it;  but  in  the  latter,  the  defendant,  knowing 
his  own  estate,  in  right  of  which  he  claims  a  privilege,  must  set  it  forth. (t?) 
In  actions  against  sheriffs  or  other  officers,  or  against  carriers,  vJcc,  for 
mis-fcazance,  the  declaration  must  state  the  nature  of  the  plaintiff's  right, 
and  ground  of  the  defendant's  duty,(r) 

In  actions  upon  the  case  for  conse([uential  injuries,  the  damages  which 
the  plaintiff  has  sustained,  being  the  gist  of  the  complaint,  must  be  stated 

(rf)  3  Lev.  73.  (c)  1  Durnf.  k  Kast,  428. 

(/)  Cro.  Jac.  4G.  2  Salk.  640.  1  Ld.  Raym.  239.  2  L«l.  Ravm.  8'JO.  2  Str.  1023. 

((7)  1  Moore,  38G.  7  Taunt.  642,  S.  C.  (A)  1  Salk.  22,  3G0.    6  Mod.  311,  S.  C. 

\a)  Salk.  335,  6.  (W)  4  -Mod.  241. 

(re)  3  Durnf.  &  East,  7C6. 

(<f)  Id.  768.      Tamen  qucere? 

(c)  Sec  further,  as  to  the  statement  of  the  plaintifTs  rviht  or  interest,  and  tlie  defendant's 
obligation  or  ditlij,  with  the  consequences  of  a  mistake  in  setting  them  out,  in  actions  for 
wrongs,  1  Chit.  Pi.  4  Ed.  328,  &c. 


445  OF  THE  DECLARATION. 

in  the  declavatlon  ;  -wliich  damages  must  appear  to  depend  on  the  injury 
complained  of,  and  not  be  too  remote,  or  happen  from  the  intervention  of 
another  cause  :(/)[a]  And  ih^y  oxa  g.\1\icy  general  or  special.  General 
damages  are  such  as  naturally  arise  out  of,  or  are  connected  with  the 
injury  complained  of  :[b]  And,  in  actions  for  mal-feazanee,  they  in  general 
correspond  with  the  end  or  design  which  the  defendant  had  in  view,  and 
which  has  been  previously  stated  in  the  declaration ;  as,  in  an  action  for 
defamation,  the  declaration  states  that  the  defendant,  intending  to  injure 
the  plaintiff  in  his  good  name,  &c.,  spoke  the  words  complained  of ; 
whereby  the  plaintiff  was  injured  in  his  good  name,  &c.  Special  damages 
are  either  such  as  are  superadded  to  general  damages,  arising  from  an  act 
injurious  in  itself;  or  such  as  arise  from  an  act  indifferent  in  itself,  but 
injurious  in  its  consequences :  and,  in  either  case,  they  must  be  specially 
laid  in  the  declaration,  or  the  plaintiff  will  not  be  allowed  to  give  them  in 
evidence  at  the  trial.  Thus,  in  an  action  for  defamation,  though  the 
words  be  in  themselves  actionable,  yet  the  plaintiff  is  not  at  liberty  to 
give  evidence  of  any  loss  or  injury  he  has  sustained  by  the  speaking  of 
them,  unless  it  be  specially  laid  in  the  declaration. (^)  If  an  action  be 
brought  for  words  that  are  not  in  themselves  actionable,  and  the  plaintiff 
do  not  prove  the  special  damage  laid  in  the  declaration,  he  must  be  non- 
suited ;  because  the  special  damage  is  the  gist  of  the  action :  but 
[  *446  ]  where  the  words  are  of  ^themselves  actionable,  if  the  words  be 
proved,  the  jury  must  find  for  the  plaintiff,  though  no  special 
damage  be  proved. (a) 

The  declaration  in  general  concludes,  "to  the  damage  of  the  plaintiff  of 
a  certain  sum  of  money,  and  therefore  he  brings  his  suit,  &c."  But  in 
dt,  p>enal  action,  brought  by  a  common  informer,  where  the  plaintiff's  right 
to  the  penalty  accrues  upon  bringing  the  action,  it  is  not  necessary  to  con- 
clude in  this  way  ;  as  the  plaintiff  cannot  have  sustained  any  damage  by  a 
previous  detention  of  the  penalty.(^)  In  actions  against  attorneys  and 
officers  of  the  court,  it  is  usual,  though  not  necessary,(c)  for  the  plaintiff  in- 
stead of  bringing  suit,  to  pra?/  relief,  &c.  And  where  the  action  is  brought 
by  hill  against  a  member  of  the  house  of  commons,  the  bill  concludes  with 
a  prayer  of  process  to  be  made  to  the  plaintiff,  according  to  the  statute, 
kG.{dd)  It  was  anciently  necessary  to  find  p)ledges  to  prosecute,  and  add 
their  names  to  the  declaration  by  bill  ;{e)  but  they  are  now  holden  to  be 
mere  matter  of  form,  and  may  be  found  at  any  time  before  judgment.(/) 

The  general  requisites,  or  qualities  of  a  declaration  are,  first,  that  it 
correspond  with  the  process  ;  secondly,  that  it  contain  all  the  circum- 

(/)  5  Taunt.  534;  and  see  2  Chit.  Rep.  198. 
(g)  Bui.  Ni.  Pn.  1. 

(a)  Bui.  Ki.  Pri.  6.  And  see  further,  as  to  the  statement  of  the  damages,  in  actions  for 
wrongs,  1  Chit.  Pi.  4  Ed.  349,  &c.  Steph.  PI.  426,  7. 

(b)  4  Bur.  2021,  2490.  (c)  Andr.  247. 

{(id)  See  further,  as  to  the  mode  of  concluding  declarations,  1  Chit.  PI.  4  Ed.  356,  &c. 
Steph.  PI.  427,  8. 

(e)  9  Ed.  IV.  27.  Bro.  Abr.  tit.  Bill,  15,  tit.  Pledges,  11.  Dyer,  288. 

(/)  18  Edw.  IV.  9.  2  Hen.  VII.  1,  17.  Palm.  518.  Stat.  4  &  5  Ann.  c.  16,  ?  1.  Fort.  330. 
Gas.  temp.  Hardw.  315.  Barnes,  163.  1  Wils.  226.  2  Wils.  142.  Butler  v.  Baileij,  E.  25  Geo. 
III.  K.  B.  3  Durnf.  &  East,  157.  1  Chit.  PI.  4  Ed.  358,  9.  Steph.  PL  428,  9. 

[a]  See  Sedgw.  on  Dam.  ch.  3,  p.  57. 

[b]  See  ara/e,  note  [a],  pp.  440-441. 


OF  TOE  DECLARATION.  44G 

stances  necessary  to  maintain  the  action,  and  no  more ;  thirdly,  that  these 
circumstances  be  set  forth  with  certainty  and  truth. Q7) 

The  correspondence  of  the  decKiration  with  the  process  may  be  con- 
sidered, as  it  respects  the  parties  to  the  action,  tlieir  christian  and  sur- 
names, the  description  of  the  character  in  which  they  sue  or  arc  sued,  and 
the  nature  of  the  cause  of  action.  In  the  Common  Pleas,  when  the  pro- 
cess is  not  baihible,  the  plaintiff,  we  have  seen,(//)  is  allowed  to  join  four 
defendants,  for  separate  causes  of  action,  in  one  writ,  and  to  declare  against 
them  severally :(/)  and  accordingly,  in  that  court,  on  a  common  capias 
quare  clausum  frcyit  against  two,  a  declaration  against  one  has  been 
deemed  regular.(/:)  But  when  the  cause  of  action  is  bailable,  the  plaintiff 
cannot  declare  against  one  defendant  separately,  upon  joint  process,  and 
affidavit  to  hold  to  bail  against  two  ;(/)  though  they  were  sued  upon  a  joint 
and  several  promissory  note,(7/?)  or  though  the  other  defendants  arc  out  of 
the  jurisdiction  of  the  court  and  cannot  therefore  be  served  with  pro- 
cess:(«)  And  Avhere  a  defendant  is  held  to  bail,  on  a  writ  issued 
against  himself  and  *another,  and  the  plaintiff  declares  against  [  *44T  ] 
one  only,  the  court  will  set  aside  the  declaration  and  subsequent 
proceedings  for  irrcgularity.(a)  So,  where  a  husband  and  wife  being 
arrested,  the  latter  was  discharged  out  of  custody  on  filing  common  bail, 
and  the  plaintiff  declared  against  the  husband  alone,  the  court  held  the 
proceeding  to  be  irregular.(6)  In  the  Common  Pleas,  however  the  affida- 
vit of  debt  and  clause  of  ac  etiam  in  bailable  process,  point  out  the  person 
against  Avhom  the  action  is  to  proceed  :  Therefore,  where  the  affidavit  of 
debt  was  against  A.,  the  capias  against  A.  and  B.,  and  the  declaration 
against  A.  only,  by  whom  bail  was  put  in,  that  court  held  it  to  be  regu- 
lar '.{c)  So,  upon  a  bailable  capias  against  two  defendants,  with  a  clause  of 
ac  etiam  and  affidavit  of  debt  against  one,  the  plaintiff,  in  that  court,  may 
regularly  declare  against  the  latter  defendant  only.(c^)  And  where  the  plain- 
tiff first  sued  out  bailable  process  against  W.  in  which  lie  only  was  named, 
and  on  which  he  was  arrested  and  put  in  and  perfected  bail,  and  the  plain- 
tiff then  sued  out  serviceable  process  against  four  other  defendants,  in 
which  W.  was  not  named,  and  afterwards  a  declaration  Avas  delivered 
against  W.  with  the  other  four  defendants,  the  court  held  the  declaration 
to  be  regular.(ce) 

The  declaration  should  regularly  correspond  with  the  process,  in  the 
christian  and  surnayjies  of  the  parties.  If  a  person  enter  into  a  bond  by 
a  wrong  christian  name,  and  be  sued  thereon,  he  should  be  sued  by  that 
name  ;  it  having  been  determined,  that  a  declaration  against  him  by  his 
right  name,  stating  that  he  executed  the  bond  by  a  wrong  one,  is  bad.(/) 
And,  as  a  man  cannot  have  two  christian  names,  it  has  been  holden,  on  a 

{ff)  Co.  Lit.  303,  a.  PI.  Com.  84,  122.  And  sco  further,  as  to  these  qualities,  1  Chit.  PI.  4 
Ed.  222,  &c. 

(A)  Ante,  148,  420. 

({)  2  New  Rep.  C.  P.  98. 

\k)  1  Bos.  k.  Pul.  19,  49  ;  but  see  R.  E.  8  Geo.  IV.  K.  B.  (/)  Ante,  420. 

(to)  4  East,  589.  (n)  I  Maule  &  Sel.  55. 

{a)  5  Durnf.  &  East,  722.  '4  East,  589.  1  Maule  &  Sel.  55  K.  B.  1  Bos.  &  Pul.  49.  2  New 
Rep.  C.  P.  82.  1  Marsh.  274,  C.  P.  Forrest,  31.  Excheq. ;  but  see  3  Barn.  &  Cres.  734.  5 
Dowl.  &  Ryl.  622,  S.  C.  Ante,  420. 

{b)  3  Dowl.  k  Ryl.  247.  (c)  2  New  Rep.  C.  P.  98. 

(d)  7  Taunt.  458.  1  Moore,  147,  S.  C. 

\ee)  1  Bing.  48.  7  Moore,  301,  S.  C. ;  and  see  Stcph.  PI.  319,  &c. 

(/)  3  Taunt.  504. 


447  OF  THE  DECLARATION. 

plea  in  abatement,  that  the  plaintiif  cannot  declare  against  the  defendant 
in  his  right  name,  with  an  alias  of  the  name  he  is  suedby.(^)  Yet,  -where 
the  defendant  was  sued  by  the  name  of  Jonathan  otherivise  John  jSoans, 
this  was  holden  to  be  no  cause  of  demurrer  to  the  declaration ;  for  nan 
constat  that  it  was  not  all  one  christian  name. (A)  If  the  defendant  has 
been  arrested  by  a  wrong  name,  the  sheriff  and  his  officers  are  liable  to 
an  action  of  trespass  and  false  imprisonment,(e)  and  the  arrest  being  ille- 
gal, the  court  instead  of  putting  the  defendant  to  plead  the  misnomer  in 
abatement,  will  set  aside  the  proceedings,(^)  and  discharge  him  if  in  cus- 
tody •,{l)  or  if  he  has  given  a  bail-bond,  will  order  it  to  be  delivered  up 

to  be  cancelled,(w)    But  in  cases  of  non-bailable  process,  if  the 
[  "^448  ]    defendant's  name  be  *misstated  in  the  writ,  the  court  will  not 

set  aside  the  writ  and  proceedings  on  motion,  but  will  leave  the 
defendant  to  his  plea  in  abatement. (a)  And  if  the  defendant  be  called 
and  known  as  well  by  one  name  as  the  other,  or  there  be  only  an  inaccu- 
racy in  the  spelling,  so  that  the  name  is  idem  sonans,  the  court  will  not 
interfere.  (6)  So,  where  A.  having  two  christian  names,  has  omitted  one 
of  them  in  his  dealings  with  B.,  he  cannot  in  an  action  brought  against 
him  by  B.,  make  the  omission  a  ground  for  setting  aside  the  proceed- 
ings.(t')  And  where  the  defendants  had  signed  a  regular  bail-bond,  they 
were  holden  to  have  thereby  waived  the  irregularity  of  the  omission  of 
their  christian  names  in  a  capias  ad  responde7idu77i,  directing  the  sheriff 
to  take  Messrs.  L.  and  B.(c?)  The  application  for  setting  aside  the  pro- 
ceedings, which  is  founded  on  an  affidavit  of  the  misnomer,(e)  should  it 
seems  be  made  before  the  expiration  of  the  time  allowed  for  pleading  in 
abatement  ;(^)  and  the  court  will  only  relieve  the  defendant,  upon  the 
terms  of  his  filing  common  bail,  and  undertaking  not  to  bring  any 
action. ((/^)  If  the  plaintiff  declare  against  the  defendant  by  a  wrong 
name,  he  may,  if  not  estopped,  plead  the  misnomer  in  abatement ;  and  it 
is  said  that  his  entering  into  a  bail-bond  to  the  sheriff  in  the  wrong  name, 
should  not  estop  him  from  pleading  in  abatement  in  the  original  action ; 
though  perhaps  it  might,  in  an  action  on  the  bail  hond.{hh)  The  safer 
way,  however,  is  for  the  defendant,  when  arrested  by  a  wrong  name,  to 
enter  into  the  bail  bond  by  his  right  name,  stating  that  he  was  arrested  by 
the  name  in  the  writ;  for  if  his  entering  into  it  by  a  wrong  name  would  not 
operate  as  an  estoppel,  it  might  be  evidence,  by  his  own  admission,  of  his 
being  called  as  well  by  one  name  as  the  other  :(«)     And  it  is  clear,  that  if 

(g)  Willes  554. 

(h)  3  East,  111  ;  and  see  2  Chit.  Rep  .335.  Steph.  PI.  319,  &c. 

(?)  6  Durnf.  &  East,  234.  8  East,  328.  2  Campb.  270.  2  Taunt.  399.  1  Marsh.  T5.  2  Chit. 
Rep.  357.  5  Taunt.  623.  1  Barn.  &  Aid.  647.  Ante,  110  ;  but  see  3  Campb.  108.  8  Moore,  297, 
1  Bing.314,  S.  C. 

(/c)  1  Marsh.  477.  4  Maule  &  Sel.  360.  1  Chit.  Rep.  282  ;  but  see  4  Barn.  &  Cres.  970.  1 
Dowl.  &Ryl.  458,  S.  C.  3  Bing.  296. 

{I)  2  Taunt.  399.  4  Maule  &  Sel.  360  ;  but  see  1  Price,  277,  391.   2  Price.  328. 

(m)  1  Chit.  Rep.  282.  2  Chit.  Rep.  357.  1  Bing.  424;  but  see  3  Durnf.  &  East,  572.  2  Bos. 
&Pul.  109, contra.  A7ite,301. 

(a)  7  Dowl.  &  Ryl.  258.    Waierlow  cj-  another  v.  Galiegne,  E.  7  Geo.  IV.  K.  B.  accord. 

(b)  2  Taunt.  401 ;  and  see  16  East,  110,  11.  1  Price,  277,391. 

(c)  6  Taunt.  530.  2  Marsh.  230,  S.  C. 

\d)  1  Brod.  &  Bing.  529.  4  Moore,  317,  S.  C. ;  but  see  6  Moore,  264.  3  Bing.  296.  Ante, 
148.  (e)  1  Chit.  Rep.  282. 

(/)  15  East,  159;  and  see  6  Taunt.  115.  1  Marsh.  474,  S.  C. 
{gg)  1  Chit.  Rep.  282  ;  and  see  4  Maule  &  Sel.  360.  2  Taunt.  399. 
[hh)  Willes,  461.  Barnes,  94,  S.  C. ;  and  see  1  Salk.  7. 
[ii)  3  Taunt.  505 ;  but  see  8  Moore,  526.  1  Bing.  424,  S.  C. 


OF  THE  DECLARATION.  448 

the  defendant,  after  being  arrested,  were  to  put  in  bail  above  in  a  wrong 
name,  it  would  estop  him  from  pleading  the  misnomer  in  abatement  •,{k) 
even  though  he  were  himself  no  party  to  the  recognizance.(Z)  The  bail 
above  therefore,  in  such  case,  shoukl  be  put  in,  and  entered  on  the  recogni- 
zance roll,  by  the  defendant  in  his  right  name,  as  having  been  arrested 
by  the  name  in  the  writ.(wi) 

When  process  is  taken  out  against  a  defendant  by  a  wrong  name,  the 
misnomer  may  be  cured  by  amending  the  writ,  if  there  be  anything  to  amend 
by,  and  then  declaring  against  the  defendant  by  his  right  name;(?<)[A] 
but  in  doing  this,  the  court  will  take  care  tliat  it  shall  not  operate 
to  the  ^prejudice  of  the  sherifr.((7)  Or,  if  the  defendant  appear  by  [  *440  ] 
his  right  name,  the  plaintiff  may  declare  against  him  by  the  name 
in  which  he  appears,  stating  that  he  was  arrested,  or  served  Avith  process,  by 
the  other  ;  for  by  appearing,  the  defendant  admits  himself  to  be  the  person 
sued,  and  so  the  variance  is  immaterial. (6)  On  process  not  bailable,  if  the 
defendant  be  sued  by  a  wrong  name,  and  do  not  appear,  the  plaintiff,  we 
have  seen,(f')  cannot  rectify  the  mistake,  by  appearing  for  him  in  his  ri(jht 
name,  according  to  the  statute  :{d)  nor  can  ho  appear  for  him  in  the  name 
by  which  he  is  sued,  and  afterwards  declare  against  him  in  his  right  name.(e) 
But  if  a  defendant  be  arrested  or  served  with  process  by  a  tvrong  christian 
name,  and  afterwards  put  in  bail  or  appear  by  his  rigltt  name,  and  the 
plaintiff  declare  against  him  by  his  right  name,  without  stating  that  he  was 
arrested  or  served  with  process  by  the  other,  the  court  will  not  interpose  in 
a  summary  way,  and  set  aside  the  proceedings  for  irregularity  ;(/)  nor  will 
they,  on  that  ground,  order  an  exoneretur  to  be  entered  on  the  bail-piece  :(^) 
And  it  seems,  that  a  misnomer,  in  process  may  be  cured,  by  an  attorney's 
undertaking  to  appear. (7i)  So,  if  a  defendant  be  served  with  a  process  by  a 
wrong  christian  name,  and  afterwards  the  plaintiff  enter  an  appearance  for 
him,  and  serve  him  with  notice  of  declaration,  by  his  rigid  name,  and  pro- 
ceed to  judgment  and  execution,  the  court  will  not  set  aside  the  proceedings 
for  irregularity,  merely  on  the  ground  that  the  defendant  never  appeared : 
because  he  ought  to  have  pleaded  the  misnomer  in  abatement  ;(u)  And  the 
course  is  now  said  to  be,  when  there  has  been  a  misnomer  in  the  writ,  for 
the  plaintiff,  on  the  return  of  it,  to  file  a  declaration  in  the  proper  form  ; 
and  the  declaration  so  filed  has  been  holden  to  cure  the  objection  to  the 
writ.(M)     It  has  also  been  determined,  that  if  the  plaintiflf  declare  by  a 

(h)  Willes,  4C1.  Barnes,  94,  S.  C. ;  and  see  1  Salk.  8.  3  Durnf.  &  East,  611. 

\l)  2  New  Rep.  C.  P.  453.  ("0  Ante,  252, 3. 

(;i)  2  Bos.  &  Pul.  109  ;  and  see  3  Wils.  49.  Ante,  242. 

(rt)  Bo3.  k  Pul.  109;  and  see  3  Wils.  49.  Ante,  242. 

{!,)  2  Wils.  393.  Green  cj-  Robinson,  H.  23  Geo.  III.  K.  B.  Boyne  v.  Milh,  M.  25  Geo.  III. 
K.  B.  3  Durnf.  &  East,  611.  1  Bos.  &  Pul.  105,  645. 

(c)  Ante,  242. 

\d)  3  Durnf.  &  East,  611.  2  New  Rep.  C.  P.  132.  11  East,  225,  accord.  1  Bos.  k  Pul.  105, 
contra. 

(e)  10  East,  328.  11  East,  225  ;  and  sec  3  Maule  &  Sel.  450. 

{/)  2  Wils.  393.  (g)  13  East,  273. 

{h)  2  Chit.  Rep.  240.  (»V)  3  East,  167. 

(/.-A-)  2  Chit.  Rep.  8  ;  and  see  3  Maule  k  Sel.  450.  Sedgucere,  if  the  objection  to  the  writ  can 
be  cured,  by  an}'  form  of  declaring,  when  the  defendant  has  not  appeared?  For  the  plain- 
tiff in  that  case  cannot,  it  seems,  regularly  appear  for  him,  according  to  the  statute,  in  a 

[a]  The  misnomer  of  a  corporation,  in  a  grant  or  obligation,  will  not  prevent  a  recovery 
upon  it  in  the  true  name,  provided  the  corporation,  designed  and  intended  by  the  parties  to 
the  instrnment,  be  shown  by  proper  and  apt  averments  and  proof.  Upper  AUoways  Creek  v. 
Slriny,  5  Halst.  323. 


449  0^  THE  DECLAEATION. 

Avrong  christian  name,  this  is  no  ground  of  nonsuit  at  the  trial,  if  it  can  he 
shown  that  the  defendant  knew  that  the  action  was  brought  by  the  person 
who  actually  sues  ;{l)  nor  is  it  any  objection  to  the  plaintiiF's  recovery,  in 
an  action  on  a  promissory  note,  that  one  of  the  defendants  is  misnamed, 
if  it  be  proved  that  he  was  the  real  person  sued,  and  served 
[  *450  ]  with  process. (wi)  And  if  the  defendant  be  sued  by  a  ivroncj 
^christian  name,  and  omit  to  plead  the  misnomer,  the  plaintiff 
may  proceed  to  judgment  and  execution  against  him,  in  the  name  by  which 
he  is  sued.(rt) 

Upon  general  process,  the  plaintiff  may  declare  qui  tam,{h)  or  as  execu- 
tor or  administrator,  &c. ;  or  the  defendant  may  be  declared  against  in  his 
representative  character.((?)  But  this  rule  will  not  hold  e  eonverso  ;  for 
where  the  process  was  to  answer  the  plaintiff  qui  tarn,  &c.  and  the  decla- 
ration was  in  his  own  name  only,  omitting  the  qui  tarn  part,  the  court  held 
the  variance  to  be  fatal,  and  set  aside  the  proceedings. (c^)  In  a  subse- 
quent case,  the  proceedings  were  set  aside,  where  the  process  was  to 
answer  the  plaintiffs  as  assignees  of  a  bankrupt,  and  the  declaration  was 
in  their  own  right ;  for  the  plaintiff  cannot  declare  against  the  defendant 
generally,  on  process  sued  out  in  a  special  character.(e)  So,  where  a  writ 
was  sued  out  by  the  plaintiffs  as  executors,  and  the  declaration  was  by 
them  in  their  oivn  right,  it  was  deemed  a  sufficient  variance  for  discharging 
the  defendant  out  of  custody  on  filing  common  bail.(/) 

The  plaintiff  may  declare  in  chief,  upon  common  process  by  hill  in  the 
King's  Bench,  or  on  a  common  capias  quare  clausum  f  regit  in  the  Common 
Pleas,(^)  for  any  cause  of  action  whatever.(7i)  And  where  the  process 
was  in  trespass  and  assault,  and  the  declaration  in  trover,  the  variance  was 
deemed  immaterial.  (2)  But,  in  bailable  cases,  the  declaration  should  regu- 
larly correspond  with  the  ac  etiam  in  the  writ,  as  to  the  nature  of  the  cause 
of  action  :  Therefore,  where  the  plaintiffs  having  held  the  defendant  to  bail 
on  an  affidavit  in  assumpsit,  delivered  a  declaration  in  trover,  the  court  of 
King's  Bench  ordered  an  exonerctur  to  be  entered  on  the  bail-piece. (^) 
But  they  will  not  permit  a  defendant  to  take  advantage  of  a  variance  in  the 
amount  of  the  debt,  between  the  ac  etiam  part  of  the  latitat  and  the  decla- 
ration.(^Z)  And  though,  where  there  is  a  material  variance  between  the  ac 
etiam  in  the  writ  and  the  declaration,  the  plaintiff  will  lose  his  bail,(wiw)  yet 
the  court  will  not  on  that  ground  set  aside  the  proceedings  for  irregularity.(w) 

different  name  from  that  in  the  process ;  and  after  having  appeared  for  him  in  the  latter 
name,  a  declaration  in  a  different  one  would  be  irregular.  Ante,  242,  449. 

{I)  3  Campb.  29  ;  and  see  6  Moore,  141.  3  Brod.  &  Bing.  54,  S.  C.  7  Moore,  522.  1  Bing. 
143,  S.  C.  AtUe,  9. 

[m)  16  East,  110  ;  and  see  1  Chit.  Rep.  507,  8,  {a),  512, 13,  (a). 

(a)  2  Str.  1218.  6  Taunt.  115.  1  Marsh.  474,  S.C.  7  Barn.  &  Cres.  486.  1  Man.  &Ryl.  265, 
S.  C. ;  but  see  1  Moore,  105. 

(b)  1  Str.  1232.  2  Blac.  Rep.  722.  3  Wils.  141,  S.  C. 

(c)  6  Moore,  66.  3  Brod.  &  Bing.  4,  S.  C. 
\d)  4  Bur.  2417.  6  Durnf.  &  East,  158. 

(e)  Meggs  ^  another,  assignees  of  Cochran,  v.  Ford,  E.  25  Geo.  III.  K.  B. 
{/)  8  Durnf.  &  East,  416 ;  and  see  3  Wils.  61.1  Bos.  &  Pul.  383. 
{g)  Pr.  Reg.  137.  Cas.  Pr.  0.  P.  58,  S.  C. 
{h)  R.  E.  15  Geo.  II.  reg.  1,  K.  B.  Cowp.  455.  Ante,  352. 
(?)  2  Chit.  Rep.  166. 

{k)  7  Durnf.  &  East,  80 ;  and  see  8  Durnf.  &  East,  27. 

{ll)  5  Durnf.  &  East,  402.  {mm)  Ante,  294. 

(n)  Per  Cur.  M.  43  Geo.  III.  K.  B.  2  Moore,  89.  8  Taunt.  189,  S.  C. ;  and  see  2  Moore,  301. 
8  Taunt.  304,  S.  C.  C.  P. 


OF  THE  DECLARATION.  450 

It  should  also  be  remembered,  that  in  the  Common  Pleas,  a  variance  be- 
tween the  writ  and  count,  the  ac  etiam  being  in  case  on  promisea,  but  the 
declaration  in  debt,  is  not  aground  for  entering  an  eroncretxir  on  the  bail- 
piece,  where  the  sum  sworn  to  is  under  40/.(o)  By  orijinal,  the  plaintiff 
must  declare  in  chief,  for  the  same  cause  of  action  as  is  expressed 
in  the  writ:(p)  and  if  there  be  a  variance  between  the  ^original  [  *451  ] 
writ  and  declaration,  the  court  will  discharge  the  defendant,  on 
entering  a  common  appearance  :(a)  But  they  will  not  on  this  ground  set 
aside  the  proceedings  ;  for  that  would  be  permitting  the  defendant  to  do 
indirectly,  what  the  practice  of  the  court  will  not  allow  him  to  do 
directly,  by  craving  oyer  of  the  original  writ,  and  pleading  the  variance 
in  abatement. (6) 

The  rules  of  pleading,  upon  Avhicli  the  statement  of  the  cause  of  action 
depends,  are  founded  in  good  sense ;  their  objects  are  precision  and 
brevity:  nothing  is  more  desirable  for  the  court  than  precision,  nor  for 
tlie  parties  than  brevity.(c)  Precision  or  certainty  is  of  three  kinds  ;  first, 
to  a  common  intent ;  secondly,  to  a  certain  intent  in  general ;  thirdly,  to 
u  certain  intent  in  every  particular  -.[d)  The  second,  or  that  which  is  to  a 
certain  intent  in  general,  is  all  that  is  re(|uired  in  a  declaration  ;  and  it 
ought  to  be  such  that  the  defendant  may  answer  it,  a  good  issue  be  joined 
thereon,  and  the  court  be  enabled  to  give  judgment.(c')  This  certainty 
should  pervade  the  whole  declaration ;  and  is  particularly  required  in 
setting  forth  the  time,  place,  and  other  circumstances  necessary  to  main- 
tain the  action. (/)[a]     But  that  which  is  alleged  by  way  of  conveyance 

(o)  1  n.  Blac.  310.  Ante,  294. 
(;>)  R.  H.  8  Car.  I.  K.  B.  5  Durnf.  &  East,  402. 

(a)  G  Durnf.  &  East,  3G3  ;  but  see  2  Moore,  301.  8  Taunt.  304,  S.  C. 
{b)  Id.  2  Wils.  393.  Durant  v.  Serocold,  E.  24  Geo.  III.  K.  B. ;  but  see  5  Durnf.  &  East,  722. 
4  East,  589.   2  New  Rep.  C.  P.  82.  5  Taunt.  649.  1  Marsh.  274. 

(c)  Doug.  666,  7. 

(d)  Co.  Lit.  303,  a. ;  and  see  Cowp.  682.  Doug.  158,  9. 
U)  Co.  Lit.  303,  a.  PI.  Com.  84. 

(/)  Com.  Dig.  tit.  J'lcader,  C.  18,  kc.  And  see  furtlier,  as  to  certainly  in  general,  1  Chit. 
PI.  4  Ed.  212,  &c.  ;  and  as  to  the  certainty  required  in  declarations,  id.  2'."J,  iVc.  ;  iu  /dras,  i<  . 
457,  &c.;  and  in  replications,  id.  561 ;  aud  as  to  time  and  place,  see  5  Durnf.  k.  East,  607.  1 
Chit.  PL  4  Ed.  231,  &c. 

[a]  The  declaration,  in  every  case,  must  set  out  a  good  and  sufficient  cause  of  action. 
Mackall  V.  Jones,  5  Gill,&  Johns.  65.  U.  States  Bank  v.  Stnilh,  11  Wheat.  172.  And  every 
material  fact,  which  constitutes  the  ground  of  the  plainliffa  action,  should  be  alleged. 
Drowne  v.  Stiinpgon,  2  Mass.  441,  444.  Tracy  v.  J)akin,  7  Johns.  75.  If  a  declaration  con- 
tain a  substantial  cause  of  action,  duplicity,  or  irrelevant  and  superfluous  matter,  does  not 
vitiate  it.  Calli.inn  \.  Simmons,  2  Port.  145.  IJvans  v.  Watrou.ic,  Hi.  205.  It  is  not,  how- 
ever, necessary  to  state  a  promise  according  to  the  words  of  it,  but  it  is  sufficient  to  stale 
it  according  to  its  effect.  Andrews  v.  Wi/liams,  11  Conn.  326.  Tiie  whole  of  the  conside- 
ration of  a  contract  must  be  stated  ;  and  if  any  part  of  an  entire  consideration,  or  of  a  con- 
sideration consisting  of  several  things,  be  omitted,  the  plainlilf  will  fail  on  the  ground  of 
variance.  Brooks  v.  Lowrie,  1  N.  &  M.  342.  In  declaring  on  contracts  not  under  seal,  which 
do  not  contain  within  themselves  the  acknowledgment  of  a  consideration,  or  that  from  which 
a  consideration  can  be  implied  by  law,  it  is  incumbent  on  the  plaintiff  to  set  out  and  [trovo 
a  consi<leration.  Trcadwuy  v.  Xicks,  3  .M-Cord,  195.  And  a  contract  in  tiie  allernative  must 
be  stated,  in  the  declaration,  according  to  the  terras  of  it.     Stone  v.  Knowltcn,  3  Wend. 374. 

Whatever  the  jilaintiff  is  under  the  necessity  of  newly  assigning,  in  order  to  avoid  the 
effect  of  a  plea,  whetiier  of  time,  place,  or  circumstance,  must  be  staled  with  as  niucii  pre- 
cision as  in  the  declaration  itself.  I'rice  v.  J'rrry,  1  Miss.  542.  So  wiiere  au  action  on  the 
case  is  brought,  and  the  damages  actually  sustained  ilo  not  necessarily  arise  from  the  act 
complained  of,  and  arc  not  therefore  implied  by  law,  the  plaiutilT  must  stale,  in  his  decla- 
ration, the  particular  damage  which  he  has  sustained,  or  he  cannot  give  evidence  of  it  upoa 
the  trial.     Squier  v.  Gould,  !4  Wend.  159.     t)r  where,  by  the  terms  of  a  contract,  an  act  is 


452  OF  THE  DECLARATION. 

or  inducement  to  the  substance  of  the  matter,  need  not  be  so  certainly 
allco-cd,  as  that  which  is  the  substance  itself  :(^)  and  surplusage  will  not 
vitiate,  except  where  it  defeats  the  action. (A) 

If  the  declaration  be  defective  in  any  of  the  above  particulars,  the 
defendant  may  demur :  But  if  he  do  not,  the  defect  may  in  some  cases 
be  aided  by  the  defendant's  j9?ea,  or  by  a  verdict  for  the  plaintiff.  If  the 
declaration  want  time,  place,  or  other  circumstances,  it  may  be  aided  by 
the  defendant's  plea;  but  not  if  it  be  defective  in  substance: (2)  And  a 
verdict  will  aid  the  omission  of  that  which  was  necessary  to  be  proved  at 
the  trial,  and  without  which  the  jury  could  not  have  found  for  the 
plaintiff. (^)  Defects  in  the  declaration  are  also  frequently  cured  by  the 
statutes  of  jeofails. (l) 

The  declaration  itself  was  formerly  delivered,  in  the  King's  Bench,  to 
the  defendant's  attorney,  who  made  a  copi/  of  it,  and  then  delivered  it 
back:(m)  But  the  copy  is  now  made  in  that  court,  as  well  as  in  the  Com- 
mon Pleas,  by  the  plaintiff's  attorney  ;(w)  and,  except  where  the  defendant 

is  in  custody,  should  either  be  delivered  to  the  defendant's  attor- 
[  *452  ]  ney,  ox  filed  *with  the  clerk  of  the  declarations  in  the  King's 

Bench,  or  prothonotaries  in  the  Common  Pleas.  When  the 
defendant  has  appeared,  and  filed  common  bail,  or  special  bail  has  been 
put  in  and  perfected,  a  copy  of  the  declaration  should  be  delivered  to  his 
attorney,(rta)  if  his  place  of  abode  be  known ;  the  delivery  of  a  copy  to 
the  defendant  himself,  after  he  has  appeared  or  filed  bail,  not  being 
deemed  sufficient. (Z*)  And,  on  the  delivery  of  a  copy  of  the  declaration, 
the  defendant's  attorney  must  formerly  have  paid  for  the  same,  after  the 
rate  of  four  pence  per  sheet,  computing  severity-two  words  to  a  sheet, 
together  with  the  stamps  or  king's  duty,((?)  and/oitr  pence  for  the  warrant 

(^f)  Co.  Lit.  303,  a. 

\h)  Com.  Dig.  tit.  Pleader,  C.  28,  9.  Steph.  PI.  417,  &c.  {i)  8  Co.  120,  b. 

[k)  Cora.  Dig.  tit.  Pleader,  C.  87  ;  and  see  Doug.  tiSO.  7  Durnf.  &  East,  518,  583.  1  Cliit.  PI. 
4  Ed.  359.  60. 

[l]  32  Hea.  VIII.  c.  30.  18  Eliz.  c.  14.  21  Jac.I.  c.  13.  16  &  17  Car.  II.  c.  8. 

(?«)  R.  T.  12  W.  III.  K.  B. 

[aa)  R.  T.  2  Geo.  II.  K.  B. ;  but  see  8  Mod.  379.  2  Ld.  Raym.  1407,  by  which  this  rule  ap- 
pears to  have  beea  made  in  T.  11  Geo.  I.  before  the  statute  12  Geo.  I.  c.  29,  and  the  rule 
upon  that  statute,  of  T.  1  Geo.  II.  K.  B. 

(6)  Lofft,  332. 

(c)  R.  T.  12  W.  III.  K.  B. ;  and  note  [a)  R.  T.  2  Geo.  II.  K.  B. 

to  be  done  in  a  reasonable  time,  an  allegation  that  it'n-as  done  in  a  reasonable  time,  to  wit, 
on  or  about  such  a  day,  is  sufficient.  Nichols  v.  Blakeslee,  2  Day,  218.  Or  in  declaring 
upon  a  special  contract,  it  must  be  set  out  in  its  very  terms,  or  according  to  its  legal  effect. 
Keyes  v.  Dearborn,  12  N.  Hamp.  52.  Pye  v.  Rutter,  7  Mis.  548.  Dickerson  v.  3Iorrison,  5 
Pike,  316.  White  v.  Gucd,  6  Blacli.  228.  3Ioore  v.  Platte  County,  8  Mis.  467.  Maxfield  v. 
Scott,  17  Verm.  634.  Berthe  v.  Biggs,  1  How.  Miss.  195.  A  declaration  should  contain  all 
that  it  is  necessary  for  the  plaintiff  to  prove  under  a  plea  of  the  general  issue,  in  order  to  en- 
title himself  to  recover.  Bcardsley  v.  Southmayd,  2  Green,  534.  Writings  ahva^'s  may,  and 
often  should,  be  declared  on  according  to  their  legal  effect,  and  not  set  forth  in  their  pre- 
cise words.  Churchill  v.  Blerchants'  Bank,  19  Pick.  532.  Doar  v.  Fenno,  12  lb.  521.  Lent 
V.  Paddleford,  10  Mass.  230.  Hopkins  v.  Young,  11  lb.  302,  307.  Johnson  v.  Carter,  16  lb. 
443.  And  it  is  not  necessary  to  state  a  promise  according  to  the  words  of  it,  but  ac- 
cording to  its  effect.  Thus,  in  an  action  on  a  written  agreement  to  pay  a  certain  sum  for 
a  certain  number  of  staves,  subject  to  a  deduction  at  a  certain  rate  for  any  number  not 
taken,  it  is  necessary  to  allege  in  the  declaration  the  number  of  staves  actually  taken. 
Martin  v.  Woodall,  1  Stew.  &  Port.  244.  And  a  writing  declared  on,  but  not  spread  upon 
the  record  by  oyer,  or  otherwise,  must  be  taken  as  set  out  in  the  declaration.  Pollard  v. 
M-Clain,  3  A.  K.  Marsh.  24. 


OF  THE  DECLARATION.  452 

of  attorncj.(J)  But  now,  it  is  not  necessary  for  the  defendant's  attorney 
to  pay  for  a  copy  of  the  declaration,  when  delivered  ;(«)  the  stamps  or 
king's  duty  on  copies  of  declarations  are  repealed,  by  the  statute  5  Geo. 
IV.  c.  41  ;  and  the  plaintiff,  we  have  seen,(/)  cannot  sign  judgment,  for 
the  defendant's  refusing  to  pay /our  pence  for  the  warrant  of  attorney, 
when  a  copy  of  the  declaration  is  delivered  to  him. 

If  the  abode  of  the  defendant's  attorney  be  unknown  to  the  plaintiff's 
attorney,  the  copy  should  ha  filed,  with  the  clerk  of  the  declarations  in 
the  King's  Bench,  or  prothonotaries  in  the  Common  Pleas,  and  notice 
thereof  given  to  the  defendant.(y)  And  a  copy  of  the  declaration  should 
\)Q Jilid  in  like  manner,  whore  tlic  plaintiff  has  entered  an  aj)poarance,  or 
filed  common  bail  for  the  defendant,  according  to  the  statute,  and  notice 
thereof  delivered  to,  or  left  at  the  last  or  most  usual  place  of  abode  of  the 
defendant ;  in  which  notice  should  bo  expressed  the  nature  of  the  action, 
at  whose  suit  it  is  prosecuted,  and  the  time  limited  by  the  rules  of  the 
court  for  pleading  ;  and  that  in  case  the  defendant  do  not  plead  by  such 
limited  time,  judgment  will  be  entered  against  him  by  default. (A)  The 
statute  48  Geo.  III.  c.  lVd,[i)  requiring  copies  of  declarations  to  be 
Avrittcn  in  the  usual  and  accustomed  manner,  and  it  not  having  been  the 
practice  to  write  such  copies  on  both  sides  of  the  paper,  the  court  of 
King's  Bench  held,  that  a  copy  so  written,  and  delivered  to  a  prisoner, 
was  irregular,  and  entitled  him  to  be  discharged  out  of  custody. (A;)  But 
the  court  of  Common  Pleas  refused  to  set  aside  a  declaration,  on  the 
ground  that  the  common  counts  were  partly  printed,  and  partly  written. (/) 

*The  declaration,  in  the  foregoing  cases,  must  be  delivered  or 
filed  absolutely.  But  it  cannot  be  so  delivered  or  filed,  before  [  *453  ] 
appearance  or  bail ;  as  the  defendant  till  then  is  not  in  court. (a) 
Still,  however,  for  the  sake  of  expediting  the  cause,  by  making  the  times 
for  appearance  and  pleading  concurrent,  it  is  a  rule  in  the  King's  Bench, 
that  '*  upon  all  process,  returnable  before  the  last  return  of  any  term, 
where  no  affidavit  is  made  or  filed  of  the  cause  of  action,  the  plaintiff 
onaijifb)  file  or  deliver  the  declaration  de  bene  esse,  or  conditionallij,  at  the 
return  of  such  process,  with  notice  to  plead  in  eigJit  days  after  the  filing  or 
delivery  thereof:  And  that  upon  all  such  process  as  aforesaid,  where  an 
affidavit  is  made  and  filed  of  the  cause  of  action,  the  declaration  may  be 
filed  or  delivered  de  bene  esse,  at  the  return  of  such  process,  with  notice 
to  plead  in  four  days  after  such  filing  or  delivery,  if  the  action  be  laid  in 
London  or  31iddlesex,  and  the  defendant  live  within  tiventy  miles  oi  Lon- 
don ;  and  in  eicjht  days,  if  the  action  be  laid  in  any  other  county,  or  the 
defendant  live  above  twenty  mWc^  from  London:  Provided  the  declaration 
in  either  case  be  filed  or  delivered,  and  notice  thereof  given, /owr  days  ex- 

[d]  R.  M.  5  Ann.  reg.  2,  K.  B.  In  the  Common  Pleas, /owr  pence  was  paid  for  the  warrant 
of  attorney  in  debl,  trespass  and  detinue,  and  eiijht  pence  in  other  actions.   Imj).  C.  P,  4  Ed.  228. 

(e)  4  Durnf.  &  East,  370.  Imp.  K.  P.  10  Ed.  179,  (a).  Imp.  C.  P.  7  Ed.  1S3,  (a). 
(/)  Ante,  95. 

(>/)  R.  T.  2  Geo.  IT.  K.  B.  R.  M.  1654,  §  15,  C.  P. 

('/()  R.  T.  1  Geo.  II.  K.  B.  R.  M.  1  Geo.  II.  rej.  1,  C.  P. ;  and  see  Append.  Chap.  XVII, 
§  22,  23. 

(/)  Srhed.  Part  II.;  and  see  stat.  55  Geo.  III.  c.  184.    Schcd.  Part.  II.  princijuo. 

(k)  12  East,  294;  and  see  1  Maule  &  Sel.  709.  1  Dowl.  &  Ry\.  5C2. 

{/)  2  Moore,  634.  8  Taunt.  591,  S.C. 

(a)  Lollt,  333.  2  Durnf.  &  East,  719;  and  see  Forrest,  33.  2  Chit.  Rep.  165.  Anle,4]0,  20. 

(h/j)  IJiit  he  is  not  bound  to  do  so,  Carmichael  v.  Chandler,  T.  24  Geo.  III.  K.  B.  Iiiiii.  K.  B. 
10  Ed.  149;  and  see  2  East,  442.  Ante,  299,  305. 


453 


or  THE  DECLARATION. 


elusive  before  the  end  of  the  terra,  and  a  rule  to  plead  be  duly  entered. "(c) 
It  was  formerly  doubted,  whether  a  declaration  could  be  filed  or  delivered 
de  bene  esse,  in  the  King's  Bench,  on  process  returnable  the  last  return  of 
the  term.((i?)  But  it  is  now  settled,  that  it  cannot  be  so  filed  or  delivered  :(e) 
the  practice  of  declaring  de  bene  esse  being  founded  on  a  rule  of  court,((?) 
by  which  the  right  of  declaring  in  that  mode  is  limited  to  process  return- 
able before  the  last  general{f)  return  :  and  the  privilege  was  only  intended 
to  apply,  when  the  plaintiff  is  entitled  to  a  plea  of  the  term.(e) 

In  the  Common  Pleas,  the  practice  of  declaring  de  bene  esse  seems  to 
have  been  first  allowed  on  special  writs,(^)  and  was  afterwards  extended  to 
common  ones.(7i)  At  present,  the  declaration  in  that  court  may  be  filed  or 
delivered  de  bene  esse,  upon  process  returnable  the  first,  second,  or  tliird 
return  of  any  term,(^)  or  on  i\\Q  fourth  return  of  Easter  term  :[k)  And,  by 
a  late  r\x\Q,(k)  it  may  be  so  filed  or  delivered,  upon  process  returnable  the 
last  return  of  any  term ;  provided  it  be  filed  or  delivered,  on  the  day  of 
such  return,  or  on  the  day  next  after  such  return,  in  case  the  same  shall  not 
happen  on  a  Sunday,  in  which  case  the  plaintiff  shall  have  the  whole  of 
the  Monday  following,  to  file  or  deliver  his  declaration  de  bene 
[  *454  ]  esse :  *And  this  rule  applies  equally  to  Easter  term,  as  to  any 
other.(a)  It  was  not  formerly  necessary,  in  the  Common  Pleas, 
to  give  notice  of  a  declaration  being  filed  conditionally,  in  bailable 
actions  :(6)  But  now,  by  a  late  rule  of  court,(c6')  "  in  every  action  in 
which  special  bail  shall  be  required,' and  where  the  declaration  shall  be 
filed  conditionally,  notice  in  writing  of  such  declaration  being  so  filed, 
shall  be  given  to  the  defendant,  his  attorney  or  agent ;  and  no  declaration 
shall  be  considered  as  filed,  until  such  notice  shall  be  so  given." 

In  the  Exchequer  of  Pleas,  it  was  formerly  the  practice,  to  file  the  ori- 
ginal draft  of  declaration  in  the  office;  and  engrossments  on  paper,  of 
declarations  and  other  pleadings,  were  not  usually  required  to  be  made  by 
the  party  declaring  or  pleading :  But  now,  by  a  late  rule  of  court, (cZt?)  it 
is  ordered,  that  "  engrossments  on  paper,  of  all  declarations  and  other 
pleadings,  shall  be  duly  made  on  stamp, (eg)  and  filed  or  delivered  by  the 
parties  respectively  declaring  or  pleading,  within  the  times  prescribed  by 
the  rules  of  the  court  for  filing  and  delivering  declarations  or  other  plead- 
ings respectively ;  and  that  a  book  be  kept  in  the  office  of  pleas,  wherein 
entries  shall  be  made  of  declarations  so  filed." 

(c)  R.  T.  22  Geo.  III.  K.  B.  ;  and  see  R.  M.  10  Geo.  II.  reg.  2,  K.  B.  R.  M.  3  Geo.  II.  reg.  2,  0. 
P.  Pr.  Reg.  148. 

{d)  1  Sel.  Pr.  2  Ed.  226  ;  and  see  the  eighth  edition  of  this  work,  p.  456,  (c). 

(e)  1  Bam.  &  Ores.  653.  3  Dowl.  &  Rjl.  28,  S.  C. ;  and  see  2  Chit.  Rep.  237.  5  Barn.  &  Ores. 
455.  8  Dowl.  &  Ryl.  135,  S.  C.  accord. ;  but  see  1  H.  Blac.  533,  4,  contra,  in  0.  P. 

(/)  5  Barn.  &  Cres.  455.  8  Dowl.  &  Ryl.  135,  S.  C. 

(g)  Cas.  Pr.  C.  P.  16.  Pr.  Reg.  145,  6. 

(A)  Pr.  Reg.  146,  7.  Cas.  Pr.  C.  P.  55,  6,  S.  C. 

{i)  R.  T.  8  Geo.  III.  C.  P. ;  and  see  R.  M.  8  Geo.  II.  reg.  2,  C.  P.  R.  Reg.  148. 

[k)  R.  H.  35  Geo.  III.  C.  P.  2  H.  Blac.  oct.  ed.  551.  7  Taunt.  71,  [a).  2  Marsh.  337,  (a).  2 
Chit.  Rep.  381.    Same  rule. 

(a)  7  Taunt.  70.  2  Marsh.  337,  S.  C. 

(6)  Pr.  Reg.  149.  Barnes,  302,  S.  C.  2  Blac.  Rep.  725.  3  Wils.  147,  S.  C.  2  Bos.  &  Pul.  42. 

(cc)  R.  E.  49  Geo.  III.  C.  P.   1  Taunt.  616. 

(dd)  R.  H.  60  Geo.  III.  &  1  Geo.  IV.  in  Scac.  8  Price,  85;  and  see  2  Price,  114.  And  for 
the  time  and  manner  of  declaring  in  that  court,  after  the  defendant's  appearance,  see  R.  T. 
26  &  27  Geo.  II.  §  9.  R.  M.  5  Geo.  III.  ?  2,  &  R.  T.  26  Geo.  III.  in  Scac.  Man.  Ex.  Append,  213, 
218,  221,  2. 

(ee)  The  stamp  duty  on  copies  of  dechirations  has  been  since  repealed,  by  the  statute  5 
Geo.  IV.  c.  41. 


OF  THE  DECLARATION.  454 

With  regard  to  declarations  dc  bene  esse,  it  is  a  rule  in  the  Exchequer,(/) 
that  "  upon  all  process  of  quo  minus  ad  respondendum  and  capias,  to  be 
issued  out  of  that  court,  returnable  before  the  last  return  of  any  term, 
where  an  affidavit  shall  be  made  and  filed  of  the  cause  of  action,  pursuant 
to  the  act  of  parliament  for  preventing  frivolous  and  vexatious  arrests,  a 
declaration  may  be  filed  or  delivered  de  bene  esse,  at  the  return  of  such  ])ro- 
cess,(^)  -with  notice  to  plead  in  four  days  after  such  filing  or  delivery ;  if 
the  action  be  laid  in  London  or  Middlesex,  and  the  defendant  live  within 
tiventij  miles  oi  London,  and  in  eicjht  days,  if  the  action  be  laid  in  any 
other  county,  or  the  defendant  live  above  twenty  miles  from  London  ;  and 
if  the  defendant  put  in  bail,  and  do  not  plead  within  such  times  as  are  re- 
spectively before  mentioned,  judgment  may  be  signed  ;  provided  such 
declaration  be  delivered  or  filed,  and  notice  thereof  given,  four  days  exclu- 
sively before  the  end  of  the  term,  and  a  rule  to  plead  duly  entered."  It  is 
also  a  rule  in  that  court,(/i)  that  "upon  all  process  to  be  issued  out  of  that 
court,  returnable  as  aforesaid,  where  the  defendant  shall  bo  personally  served 
with  a  copy  thereof,  pursuant  to  the  said  act  of  parliament,  or  to  the  statute 
51  Geo.  lll.c.  124,(z)  the  plaintiff  may  file  or  deliver  a  declara- 
tion de  bene  esse,  at  the  return  of  *such  process  with  notice  to  [  *455  ] 
plead  in  eight  days  after  the  filing  or  delivery  thereof :(«)  and  if 
the  defendant  do  not  enter  an  appearance  and  plead  within  the  said  eight 
days,  the  plaintiff,  having  entered  an  appearance  for  him  according  to  the 
said  acts,  may  sign  judgment  for  want  of  a  plea  ;  provided  such  declaration 
be  delivered  or  filed,  and  notice  thereof  given, /our  days  exclusively  before 
the  end  of  the  term,  and  a  rule  to  plead  duly  entered  :  And  that  upon  all 
writs  of  distringas,  whereupon  notice  shall  be  given  pursuant  to  the  said 
last-mentioned  act,  the  plaintiff  may  file  or  deliver  a  declaration  de  bene 
esse,  at  the  return  of  such  writ,  with  notice  to  plead  in  eight  days  after  the 
filing  or  delivery  thereof ;  and  if  the  defendant  do  not  enter  an  appearance 
and  plead  within  the  said  eight  days,  the  plaintiff,  having  entered  an  ap- 
pearance according  to  the  same  act,  may  sign  judgment  for  want  of  a  plea, 
a  rule  to  plead  having  been  duly  entered."  And  by  a  late  rule, (6)  it  is 
ordered,  that  "in  all  cases  wherein  the  plaintiff,  by  the  present  practice  of 
the  court,  would  be  entitled  to  sign  judgment  for  want  of  a  plea,  where  the 
declaration  had  been  delivered  or  filed,  and  notice  thereof  given,  four  days 
exclusively  before  the  end  of  the  term  in  which  the  process  is  returnable, 
the  plaintiff  shall  be  at  liberty  to  sign  such  judgment ;  provided  the  declara- 
tion be  delivered  or  filed,  and  notice  thereof  given,  two  days  exclusively 
before  the  end  of  the  term  within  which  the  process  is  returnable,  a  rule  to 
plead  having  been  duly  entered."  This  rule  does  not  extend  to  filing  de- 
clarations de  bene  esse,  so  as  to  entitle  the  plaintiff  to  a  pica  of  the 
term,  on  writs  returnable  two  days  exclusively  before  the  end  of  the 
term.(ff) 

In  the  King's  Bench,  the  declaration  may  be  filed,  and  notice  thereof 
given,  on  the  return  day  of  the  writ,  or  quarto  die  j>ost  by  original;  and 

(/)  R.  T.  20  Geo.  III.  in  Scac.  Man.  Ex.  Append.  221  ;  and  see  R.  T.  20  &  27  Geo.  II.  I  10, 
and  R.  M.  5  Geo.  III.  in  Scac.  Man.  Ex.  Append.  214,  219. 
(.7)  13  Price,  178.  M'Clel.  65,  S.  C. 

(h)  R.  M.  53  Geo.  III.  in  Sc<ic.  Man.  Ex.  Append.  22G,  7.  8  Trice,  508,  9. 
(i)  And  see  stat.  7  &  8  Geo.  IV.  c.  71,  g  5. 

(a)  Append.  Cliap.  XVII.  $  24. 

(b)  R.  11.  GO  Geo.  III.  &  1  Geo.  IV.  in  Scac.  8  Price,  84. 
(r.)  M'Clel.  G.^.O. 

Vol.  1.-29 


455  OF  THE  DECLARATION. 

the  writ  of  latitat,  we  have  seen,(tZ)  may  be  sued  out  and  served  on  the 
return  day :  but  it  cannot  be  served,  and  notice  of  declaration  given,  at 
the  same  time ;  for  the  notice  of  declaration  presupposes  the  declaration 
to  be  filed,  and  it  cannot  regularly  be  filed  till  after  the  writ  is  served : 
There  must  be  some  interval  therefore,  however  short,  between  the  ser- 
vice of  the  writ  and  notice  of  declaration. (e)  But  where  the  defendant 
had  omitted  to  take  advantage  of  the  objection,  until  after  judgment  was 
signed  and  a  whole  term  had  elapsed,  the  court  would  not  set  aside  the 
judgment  with  costs. (/)  In  the  Common  Pleas,  the  declaration  may  be 
filed  de  bene  esse,  on  the  essoin  or  return  day  of  the  writ,  or  any  day 
after;  though  a  rule  to  plead  cannot  be  given  till  the  first  day  of  term.(,^) 
And  notice  of  the  declaration  being  so  filed  may  be  given,  in  that  court, 
on  the  return  day  of  the  writ,  at  the  time  of  serving  it  :{h)  But  notice 
cannot  be  given  on  that  day,  of  a  declaration  being  filed  in  chief. (i) 
And  service  of  a  notice  of  declaration   on  a  Sunday  is  bad,  though  the 

defendant  accept  it,  knowing  it  to  be  *irregular.(a)  The  declara- 
[  '456  ]    tion,  however,  cannot  be  filed  before  Xhe  essoin,  or  return  day  of 

the  writ :  therefore  a  notice  of  declaration  given  the  day  before 
the  essoin  day  of  the  term,  being  Sunday,  until  which  day  the  plaintiflfcould 
not  file  his  declaration,  has  been  deemed  a  nullity. (6)  And,  in  that  court, 
the  declaration  cannot  be  filed  or  delivered  de  bene  esse,  so  as  to  charge 
the  defendant  with  the  costs  of  it,  till  the  appearance  day  of  the  return 
of  the  writ. ((?<?)  So,  if  one  of  three  defendants,  in  a  joint  action,  appear 
to  a  quare  clausuw.  f regit,  and  the  two  others,  being  arrested  on  bailable 
process,  have  till  the  ensuing  term  to  justify  bail,  it  is  irregular  for  the 
plaintiff,  previous  to  that  time,  to  deliver  a  declaration  against  all  three, 
indorsed  '"'■  conditionally,  until  special  bail  is  perfected.' \dd)  And  the 
declaration  cannot,  in  either  court,  be  filed  or  delivered  de  bene  esse,  after 
the  defendant  has  appeared,  or  filed  bail  :(ee)  or  the  time  limited  for  his 
appearance,  or  putting  in  bail,  is  expired  ;{ff)  whether  the  process  be 
bailable  or  not  bailable. (<7^)  On  bailable  process  therefore,  when  the 
defendant  has  neglected  to  put  in  or  perfect  special  bail,  the  plaintifi" 
must  proceed  against  the  sherifi",  or  his  bail,  upon  the  bail-bond :  and 
when  he  has  not  appeared  or  filed  common  bail  in  due  time,  the  plaintiff 
must  enter  an  appearance,  or  file  common  bail  for  him,  according  to  the 
statute ;  and  then  deliver  or  file  his  declaration  absolutely, {Jih)  In  the 
Exchequer  of  Pleas,  it  has  been  the  usual  course  of  the  court,  when  the 
process  is  served  on  the  return  day,   to  give  notice  of  the  declaration 

{d)  Ante,  153,  168. 

(e)  3  Smith,  R.  531.  12  East,  116.  2  Chit.  Rep.  164,  5.  7  Dowl.  &  Ryl.  233. 

(/)  2  Chit.  Rep.  164. 

(g)  Cas.  Pr.  C.  P.  68  ;  and  see  Pr.Reg.  148. 

\h)  3  Taunt.  404.  8  Taunt.  127.   1  Moore,  573,  S.  C. 

[i)  4  Taunt.  818.  8  Taunt.  127.   1  Moore,  573,  S.  C. 

(a)  1  H.  Blac.  628.  (6)  2  New  Rep.  C.  P.  75. 

[cc)  2  Blac.  Rep.  749 ;  and  see  1  Esp.  Rep.  345.  2  Bos.  &  Pul.  515.  2  New  Rep.  C.  P.  398. 

{del)  2  New  Rep.  C.  P.  231.  Quare,  whether,  if  the  declaration  had  been  indorsed  condi- 
tionally, until  bail  should  be  perfected  by  the  two  latter  defendants,  it  would  have  been 
irregular?  Id.  ibid. 

(ee)  R.  M.  10  Geo.  II.  reff.  2.  R.  T.  22  Geo.  III.  K.  B.  R.  M.  3  Geo.  II.  reg.  2.  R.  T.  8  Geo. 
III.  R.  H.  35  Geo.  III.  C.  P.  2  H.  Blac.  oct.  ed.  551. 

(/)  1  Bur.  56.  2  Durnf.  &  East,  720.  6  Durnf.  &  East,  548.  8  Durnf.  &  East,  77,  K.  B.  Pr. 
Reg.  145,  6.  Barnes,  342.  2  New  Rep.  C.  P.  232. 

(pg)  2  New  Rep.  C.  P.  433. 

(AA)  Pr.  Reg.  145,  6. 


OF  THE  DECLARATION.  456 

being  filed  conditionally,  on  the  same  day :(/)  And,  in  that  court,  service 
of  notice  of  declaration  on  the  return  day,  by  a  person  going  away,  and 
returning  a  few  minutes  after  service  of  the  writ,  was  liolden  not  to  be 
irregular.  (A-) 

If  the  declaration  he  fihd,  and  notice  thereof  given  t(j  the  defendant  or 
his  attorney,  it  is  deemed  to  be  a  good  declaration,  fruni  the  time  of  such 
notice  only ;(/)  and  therefore  a  rule  to  plead  in  such  case,  given  before 
notice  of  declaration,  is  irregular.(m)  Yet  where  the  declaration,  in  the 
King's  Bench,  was  fded  on  the  last  day  of  the  second  term,  after  the 
return  of  the  writ,  but  the  notice  was  not  given  till  a  little  before  the 
essoin  day  of  the  following  term,  this  was  holden  to  be  well  enough  ;  the 
master  certifying  it  to  be  the  practice. (/«)  The  defendant  must  formerly 
have  received  and  paiil  for  a  copy  of  the  declaration,  whether  it 
were  delivered  or  left  in  the  *olfice,  before  he  could  have  been  [  •457  ] 
admitted  to  plead  ;{a)  and  if  he  neglected  to  do  so,  the  plain- 
tiff's attorney  might  have  refused  to  accept  his  plea,  and  signed  judg- 
ment :[l>}  But  now,  though  a  copy  of  the  declaration  must  be  paid  for,  on 
taking  it  out  of  the  ofiice,  when  filed,  yet  the  defendant's  attorney,  we 
have  seen,(c)  is  not  bound  to  pay  for  it,  when  delivered  to  him.(cZ) 

The  notiee  of  declaration  being  filed  in  the  office,  must  be  properly 
entitled ;  and  express  the  nature  of  the  action,  as  whether  it  be  in  debt 
or  case,  &c.  :{e)  but,  in  the  Common  Pleas,  it  need  not  state  the  amount 
of  the  damages ;(/)  and,  in  the  King's  Bench,  it  seems  that  no  date  to 
the  notice  of  declaration  is  necessary. (^)  When  the  defendant's  place  of 
residence  is  known  to  the  plaintiff's  attorney,  the  notice  of  declara- 
tion should  be  delivered  to  the  defendant,  or  left  for  him  at  the  last  or 
most  usual  place  of  his  abode ;  it  being  irregular  in  such  case  for  the  plain- 
tiff"s  attorney  to  stick  up  a  notice  of  declaration  in  the  office  :(/i)  And  the 
court  of  Common  Pleas  would  not  allow  the  affixing  of  a  notice  of  decla- 
ration in  the  prothonotaries  office,  to  be  good  service ;  although  it  was 
sworn,  that  the  defendant  had  no  fixed  place  of  residence,  and  that  the 
plaintiff"  did  not  know  where  to  find  him.(«V)  If  the  defendant's  place  of 
abode  be  unknown,  application  must  be  made  to  the  court,  that  affixing 
the  declaration  in  the  office  may  be  deemed  good  service  :(/i^)  and  it  is  not 
so  considered,  unless  by  express  permission  of  the  court,  though  the 
defendant's  place  of  abode  be  unknown  to  the  plaintift*.(//)  But  where 
the  defendant  and  his  attorney  had  been  informed  that  a  notice  of  decla- 
ration was  stuck  up  in  the  office,  the  latter  court  refused  to  set  aside  a 
judgment,  for  want  of  service  of  the  notice  at  the  defendant's  last  place 
of  abode. (mm)     And  where  a  defendant  kept  out  of  the  way,  to  avoid 

(i)  9  Price,  153.  (k)  M'Clel.  659. 

(/)  R.T.  I  Geo.  II.  R.  T.  2  Geo.  II.  K.  B.  8  Mod.  370.  2  Ld.  Uayin.  1407.   7  Durnf.  &  East, 
29a.   R.  M.  1  Geo.  II.  rej.  1,  C.  1'. 
(m)  Pr.  Rep.  131.  Cas.  Pr.  0.  P.  111.  Barnes,  248,  S.  C. 
(n)  3  Bur.  1452.  2  Durnf.  k  East,  112. 

(a)  U.  .M.  10  Geo.U.reff.S,K.li.;  and  see  R.  T.  12  W.  III.  R.  T.  2  Geo.  II.  K.  B. 
((,)  1  Wils.  173.  (c)  Ante,  452. 

(d)  Imp.  K.  B.  10  Ed.  179,  (a).  Imp.  C.  P.  7  Ed.  183,  (a). 
tc)  Pr.  lUtr.  131.  Cas.  Pr.  C.  P.  63,  S.  C.  Id.  68,  122.  2  Wil3.84. 
(  /•)  6  Taunt.  331.  {</)  2  Chit.  Rep.  233. 

(A)  7  Durnf.  &  East,  2G.   1  V.us.  k  Pul.  214. 

(iV)  8  .Moore,  273.  (H)  1  Taunt.  433. 

{//)  5  Taunt.  777  ;  and  see  7  Taunt.  145.  1  Cliit.  Rep.  075,  (a).  j 

(;/i//j)  1  New  Rep.  C.  P.  279. 


457  OF  THE  DECLARATION. 

being  served  with  notice  of  declaration,  and  it  was  sent  to  him  in  a  let- 
ter by  the  post,  which  was  returned  opened  and  marked  "refused,"  this 
Avas  deemed  good  service  ;  it  appearing  that  the  defendant  knew  the 
handwriting  of  the  plaintiff's  attorney, (w)  So,  in  the  Exchequer,  service 
of  notice  of  declaration  is  good,  by  affixing  it  on  the  door  of  the  house 
where  the  defendant  last  lived,  if  the  plaintiff'  or  his  attorney  do  not  know 
the  place  to  which  he  is  removed,  and  knowledge  of  such  service  can  be 
brought  home  to  him.(o)  When  the  declaration  is  filed  or  delivered  de 
bene  eftse  or  conditionally,  it  is  necessary  to  make  an  indorsement  thereon, 
that  it  is  so  filed  or  delivered  :(p)  and,  in  the  King's  Bench,  where  the 
declaration  filed  in  the  office,  before  the  defendant's  appear- 
[  *458  ]  ance,  was  indorsed  *'•'■  filed  conditionally,"  and  judgment  after- 
wards signed  for  want  of  a  plea,  the  court  held  the  proceeding 
regular ;  though  the  notice  served  on  the  defendant  was  of  a  declaration 
generalhj.{a) 

If  the  plaintiff"  do  not  declare  in  due  time,  he  is  liable  to  be  nonprossed, 
or  have  judgment  signed  against  him  for  not  prosecuting  his  suit.(i)  It 
is  called  a  judgment  of  no77j>ros,  from  the  words  no7i  prosequitur,  &c., 
formerly  used  in  entering  it  up.  And  this  seems  to  be  the  proper  appel- 
lation of  the  judgment,  in  actions  by  hill :  but  in  actions  by  original, 
where  the  language  of  the  judgment  was  non  prosequitur  breve,  vel  sectam, 
it  is  more  commonly  called  a  judgment  of  nonsuit. [c)  The  judgment  of 
nonpros  is  founded  on  the  statute  13  Qar.  II.  stat.  2,  c.  2,  §  3,  by  which 
it  is  enacted,  that  "upon  an  appearance  entered  for  the  defendant  by 
attorney,  in  the  term  wherein  the  process  is  returnable,  unless  the  plaintiff" 
shall  put  into  the  court  from  whence  the  process  issued,  his  bill  or  declara- 
tion, against  the  defendant,  in  some  personal  action  or  ejectment  of  farm, 
before  the  end  of  the  term  next  following  after  appearance,  a  nonsuit  for 
want  of  a  declaration  may  be  entered  against  him  ;  and  the  defendant 
shall  have  judgment  to  recover  costs  against  the  plaintiff",  to  be  taxed  and 
levied  in  like  manner  as  upon  the  23  Hen.  \lll.'\d)  The  provisions  of 
this  statute  are  confined  in  terms,  to  cases  where  the  defendant  has  been 
arrested;  but  it  has  been  holden,  that  if  a  defendant  appear  at  the  day  of 
the  return  of  the  process,  and  put  in  bail,  though  he  never  were  arrested, 
nor  the  process  returned,  yet  if  the  plaintiff"  do  not  declare  within  tivo 
terms,  a  nonpros  may  be  entered  against  him  :(e)  And  the  statute  is  not 
confined  to  cases  where  the  writ  is  defective,  but  has  always  been  con- 
strued to  extend  to  cases  in  general. (/)  Hence  it  is  a  rule,  in  the  King's 
Bench,  that  "  on  all  process  issuing  out  of  this  court,  returnable  at  a  day 
certain,  if  the  defendant  appear  by  his  attorney,  and  file  bail  of  the  term 
wherein  the  process  is  returnable,  and  the  plaintiff"  do  not  declare  before 
the  end  of  the  term  next  following,  a  nonpros  may  be  signed,  without 
entering  any  rule  to  declare,  or  calling  for  a  declaration. "(^)  So,  where 
the  proceedings  are  by  original  in  the  King's  Bench,  it  is  not  necessary  to 
give  a  rule  to  declare,  or  demand  a  declaration. (/i)    But,  in  the  Common 

{n)  5  Taunt.  186.   1  Marsh.  8,  S.  C.  (o)  6  Price,  15. 

Ip)  R.  M.  10  Geo.  II.  rcg.  2,  K.  B.   R.  E.  3  Geo.  II.  C.  P.    Barnes,  257,  302.  2  New  Rep. 
0.  P.  223. 

(a)  8  Durnf.  &  East,  77.  2  Moore,  719.  8  Taunt.  644,  S.  C. 

(6)  Append.  Chap.  XVII.  g  25,  &c.  (c)  Ante,A2l,  2. 

(d)  c.  15.  (e)  2  Salk.  455.  7  Mod.  32,  S.  C.  (/)  7  Durnf.  &  East,  27. 

{g)  R.  M.  10  Geo.  II.  reg.  2,  (6),  K.  B.  Gilb.  K.  B.  345. 

(A)  Imp.  K.  B.  10  Ed.  493,  531 ;  but  see  R.  M.  10  Geo.  II.  reg.  2,  {b),  K.  B.  contra. 


OF  THE  DECLARATION.  45S 

Pleas,  the  defendant  must,  before  the  end  of  the  second  term,  or  within 
four  days  after,  enter  a  rule  for  the  plaintiff  to  declare,(/)  which  he  obtains 
on  Q.  jinecipc  hon\  the  secondaries,  and  demand  a  declaration  ;(/ir)  and  if 
the  plaintiff  do  not  declare  before  the  rule  is  out,  the  defendant  m;iy,  at 
any  time  before  the  essoin  day  of  the  next  term,  sign  a  nonpros,  but  not 
afterwards  ;(/)  and  the  plaintiff,  we  have  seen,(;/j)  is  not  allowed 
any  longer  time  to  declare,  *without  leave  than  the  time  limited  [  *459  ] 
by  the  defendant's  rule.  The  demand  of  declaration  must  be  in 
writing  \{a)  and,  in  country  causes,  it  must  be  made  on  the  agent  in 
town. (6) 

The  defendant  cannot  sign  a  judgment  of  nonpros,  before  an  appearance 
is  entered:  and  it  cannot  in  general  be  signed,  unless  bail  be  filed,  or  an 
appearance  entered,  of  the  term  wherein  the  process  is  returnable  ;(<?)  and 
therefore  it  cannot  be  signed,  where  a  prisoner  is  superseded  for  not 
declaring,  (fee,  on  filing  common  bail.(t/)  But  when  special  bail  is  reiiuired, 
the  appearance  is  not  complete,  until  they  are  perfected  :(i')  and  therefore, 
where  the  defendant  was  arrested  on  a  bill  of  Middlesex,  on  the  22d 
November,  and  special  bail  was  put  in  in  3Iichaelnias  term,  and  perfected 
in  Ililarij  term,  and  judgment  of  nonjiros  was  signed  in  Hilary  vacation, 
the  court  of  King's  Bench  set  aside  the  judgment  for  irregularity;  the 
plaintift'  having  been  guilty  of  no  laches,  in  not  declaring  in  Micliaelmas 
term,  as  the  defendant  was  not  then  fully  in  court.(/)  And  the  statute 
contemplates  an  available  appearance  only,  or  such  an  appearance  as  will 
entitle  the  plaintiff  to  declare  :  Tlierefore,  whei?e  a  latitat  having  issued 
against  three  defendants,  returnable  on  the  last  day  of  Trinity  term,  but 
only  one  of  the  defendants  being  served,  an  alias  issued,  returnable  on  the 
last  day  of  Michaelmas  term,  of  which  one  other  of  the  defendants  was 
served  with  a  copy,  and  in  Hilary  term  following  a  pluries  latitat  issued, 
returnable  on  the  last  day  of  Hilary  term,  but  which  was  not  served  on 
the  third  defendant,  and  another  pluries  issued,  returnable  on  the  I'Jth 
May  in  faster  term,  of  which  he  was  served  with  a  copy,  and  an  appear- 
ance was  entered  for  all  the  defendants,  in  Easter  term  ;  and  the  plaintiff 
not  having  declared  in  Trinity  term,  the  defendant  signed  judgment  of 
nonpros;  the  court  held,  that  such  judgment  was  regular,  though  an 
appearance  was  not  entered  of  the  term  the  process  was  returnable. (^) 
The  judgment  of  nonpros,  however,  must  be  signed,  in  the  King's  Bench, 
within  a  year  after  the  return  of  the  writ.(/t) 

In  a  joint  action,  it  is  said,  the  plaintiff  cannot  be  nonprossed  by  one  or 
more  of  the  defendants,  without  the  others. (»')  And  this  is  universally  true  in 
actions  by  original,  where  the  plaintiff  cannot  proceed  against  the  defend- 
ants severally,  upon  a  joint  writ.  But  upon  common  process  for  a  supposed 
trespass,  in  the  King's  Bench  or  Common  Pleas,  if  the  plaintiff  declare, 

(t)  Imp.  C.  P.  7  Ed.  104,  5.  Append.  Chap.  XVII.  g  3.  {k)  Id.  g  4. 

{l)  R.  H.  9  Ann.  rej.  3,  C.  P.  Ante,  422.  (m)  Ante,  422. 

(a)  N.  M.  1  Geo.  II.  C.  P. 
\b)  Barnes,  311.  Pr.  Reg.  C.  P.  124,  S.  C. 

(c)  IIolvus  V.  White,  E.  11  (;eo.  III.  K.  B.  6  East,  314.  2  Chit.  Rep.  37.  3  Barn.  &  Cres. 
555.   5  Dowl.  &  Rvl.  352,  S.  C.  Antf,  242. 

(rf)  Imp.  K.  B.  10  Ed.  494.  Imp.  C.  P.  7  Ed.  5.^5.    1  Cromp.  5  Ed.  123.  5  Dnrnf.  &  East,  35. 

(e)  2  Chit.  Rep.  37.  (/)  3  Barn,  k  Aid.  514. 

Iff)  3  Barn.  &  Cres.  553. 

(A)  3  Barn.  &  Aid.  271.   1  Chit.  Rep.  6G9,  S.  C. 

(«t)  Doug.  1G9.  Fhiljjot  V.  Mullcr  ^-  another,  T.  23  Geo.  III.  K.  B. 


459  or  THE  declaration. 

serve  a  notice  of  declaration,  or  even  take  out  a  rule  for  further  time  to 
declare,  against  one  or  more  of  several  defendants,  and  do  not  proceed 
against  the  others,  the  latter  may  sign  a  judgment  of  7ionpros.[k) 
[  *4(J0  ]  In  *such  case,  however,  there  ought  to  be  but  one  judgment  of 
nonpros  for  all  the  defendants,  unless  the  plaintiff  have  indicated 
his  intention  of  proceeding  against  them  severally ;  for  the  trespass  is  joint, 
and  though  the  plaintiff,  in  the  Common  Pleas,  may  declare  severally,  yet 
it  remains  joint,  till  it  be  severed  by  the  declaration. (a) 

The  judgment  of  nonpros,  or  nonsuit,  for  want  of  a  declaration,  is  a  final 
judgment,  and  signed  with  the  clerk  of  the  judgments  in  the  King's  Bench, 
or  prothonotaries  in  the  Common  Pleas ;  an  incipitur  being  first  made  on 
a  roll,  and  also  on  a  sheet  of  paper,  called  a  judgment  paper:  And  in  the 
Common  Pleas,  the  defendant's  warrant  of  attorney  must  be  filed  with  the 
clerk  of  the  warrants,  who  will  mark  the  judgment  paper. (5)  "Whenever 
the  defendant  obtains  a  judgment  of  no7ipros,  he  is,  as  a  necessary  con- 
sequence, entitled  to  costs  ;{c)  for  which  he  may  either  take  out  execution, 
or  bring  an  action  of  debt  upon  the  judgment.  It  has  even  been  holden, 
that  an  executor  is  liable  to  pay  costs,  upon  a  judgment  of  nonpros.{d) 
And  the  court  in  two  cases,,  have  ordered  the  costs  to  be  paid  by  the 
plaintiff's  attorney  ;  in  one  of  them,  at  the  instance  of  the  defendant, 
upon  an  affidavit  that  the  plaintiff  could  not  be  found  ;(e)  and  in  the  other, 
at  the  instance  of  the  plaintiff  himself,  where  his  attorney  refused  to  pro- 
ceed, without  being  furnished  with  money. (/) 

If  the  judgment  of  nonj5?'os  be  regular,  the  courts  will  not  set  it  aside, 
as  a  matter  of  course  ;  and,  in  a  qui  tarn  action,  they  have  refused  to  do 
&o.{g)  But  it  may  be  set  aside  on  motion,  if  irregular,  with  all  the  pro- 
ceedings that  have  been  had  upon  it,  provided  the  application  be  made 
in  time:  And  if  an  action  be  brought  on  the  judgment,  the  whole  proceed- 
ings may  be  set  aside,  by  one  rule.(7i)  But  where  the  plaintifi"  did  not 
apply  till  after  judgment  was  signed,  in  an  action  brought  on  the  judg- 
ment of  nonp>ros,  the  court  of  Common  Pleas  refused  to  set  aside  the  latter 
judgment,  on  the  ground  of  laches. (/)  A  judgment  of  nonpros  cannot 
regularly  be  signed,  pending  an  injunction  :(^^)  nor  where  the  proceedings 
are  stayed,  by  a  judge's  order  for  the  delivery  of  the  particulars  of  the 
plaintiff's  demand,  7  Dowl.  &  Ryl.  125,  7  Barn.  &  Cres.  485,  Post,  598. 
And  where  it  was  signed  after  the  debt  and  costs  had  been  paid,  the  court 
set  it  aside,  although  the  defendant  swore  that  the  money  was  not  paid 
with  his  privity. (Z)  But  where  it  was  signed  for  not  adjourning  an  essoin, 
cast  upon  a  special  capias,  and  the  plaintiff  took  no  notice  of  it,  but  deli- 
vered his  declaration,  and  after  the  rule  to  plead  was  out,  and  a  plea  called 
for,  signed  judgment;  the  court,  considering  it  as  a  trick,  declared  that 
as  there  was  no  colour  for  the  essoin,  or  to  expect  the  plaintiff  to  search 
after  a  7ionpros,  and  there  was  no  notice  given  of  it,  the  plaintifi"  had  a 
right  to  go  on;  and  therefore  they  refused  to  set  aside  his  judgment.(w) 

(k)  2  Durnf.  &  East,  257  ;  and  see  5  Barn.  &  Cres.  178.  7  Dowl.  k  Ryl.  619,  S.  C.  5  Barn. 
&  Cres.  768.  8  Dowl.  &  Ryl.  592,  S.  C. 

(a)  2  Salk.  455.    Com.  Rep.  74,  S.  C.    4  Bur.  2418.    Vin.  Abr.  tit.  Costs,  6  V.  341,  contra. 

(b)  Imp.  C.  P.  7  Ed.  534. 

(c)  Stat.  23  Hen.  VIII.  c.  15.  8  Eliz.  c.  2,  ^  1,  2.  4  Jac.  I.  c.  3.  13  Car.  II.  stat.  2,  c.  2, 
§  3.     1  Durnf.  &  East,  373. 

(d)  3  Bur.  1584.  (e)  1  Str.  402. 

(f)  Sav.  Rep.  172.     Ante,  86.  (ff)  I  Bur.  401.     2  Ken.  82,  S.  C. 

(A)  4  Durnf.  &  East,  688.  (0  Cas.  Pr.  C.  P.  75.     Pr.  Reg.  138,  S.  C. 

{kk)  Bowser  v.  Price,  E.  20  Geo.  III.  K.  B.  {/)  1  Chit.  Rep.  142.  {m)  2  Str.  1194. 


OF  TUE  DECLARATION.  460 

*It  may  not  be  improper  in  this  place,  to  state  the  operation 
and  effect  of  an  injunction,  which,  we  have  just  seen,  will  pre-  [  *4G1  ] 
vent  the  plaintiff'  tVom  si^nin;^  a  ju(l<];moiit  of  nonprox,  and  how 
far  it  aff'ects  the  diffVrciit  proceedings  in  the  course  of  the  suit.  The  gene- 
ral effect  of  an  injunction  in  Chancery,  when  obtained  for  want  of  an  an- 
swer before  action  commenced,  or  after  action  and  before  the  defendant  in 
equity  is  in  a  condition  to  demand  a  plea,(a)  that  is,  before  the  plaintiff  in 
equity  has  appeared  and  the  defendant  has  declared  against  him,  is  to  stay- 
all  proceedings  at  law,  from  the  time  of  its  being  served;  but  when  it 
is  not  obtained  until  after  the  defendant  in  c([uity  is  in  a  condition  to  de- 
mand a  plea,  he  is  permitted  to  demand  it,  and  proceed  to  trial  and  judg- 
ment, being  only  restrained  from  taking  out  execution  :{h)  And  even  then, 
under  particular  circumstances,  the  injunction  may  be  extended  to  stay 
trial,  on  an  affidavit  that  the  plaintiff"  in  equity  is  advised  and  believes 
that  the  answer  will  aff^ord  a  discovery  material  to  his  defence. (c) 

In  the  Exchequer,  the  effect  of  an  injunction  for  want  of  an  answer,  in 
a  town  cause,  is  to  sta}'-  all  proceedings  at  law,  from  the  time  it  is  served, 
until  answer  and  further  order  :{t?)  And  it  is  of  equal  force  in  a  country 
cause,  when  the  bill  is  filed  in  3Iichaelmas  or  Easter  Term  ;{e)  but  in 
Hilary  and  Trinity,  which  are  issuable  terms,  there  is  a  clause  in  the  in- 
junction, that  if  issue  is  or  can  be  joined  in  the  action,  the  plaintiff"  at  law 
may  proceed  to  trial  thereof;  but  is  not  to  enter  up  judgment,  or  sue  out 
execution  thereon  :(/)  and  therefore,  in  these  terms,  if  the  plaintiff"  at  law 
has  so  far  proceeded  in  his  action,  as  that  he  can  join  issue  therein  by  his 
own  act,  as  by  adding  a  similiter, [g)  in  that  case  he  is  permitted  to  go  to 
trial  at  the  folloAving  assizes,  and  the  injunction  only  stays  judgment  and 
execution.  But  though  this  be  the  ordinary  practice  of  the  court,  yet 
cases  do  occasionally  occur,  especially  in  matters  of  title  and  discovery, 
where  the  court  will  restrain  the  trial  at  law  till  after  answer. (//)  An  in- 
junction upon  the  merits,  in  both  courts,  operates  as  a  stay  of  all  further 
proceedings  in  the  cause,  from  the  time  it  is  granted.  Taking  money  out 
of  a  court  of  law,  which  has  been  paid  in  by  rule  of  court,  is  a  breach  of  a 
common  injunction,  against  proceeding  at  law:(j)  but  showing  cause 
against  a  rule  for  a  new  trial,  is  not  a  proceeding  which  amounts  to  the 
breach  of  an  injunction, (/c) 

(a)  16  Yes.Jun.  141.  {b)  Id.  ibid. 

(c)  Id.  220,  223  ;  and  see  I  Madd.  Chan.  132,  3. 

(rf)  P'owl.  l>r.  Excheq.  1  V.  250,  51,  259.  {e)  Id.  2C0. 

(/)  Id.  249.  {g)  1  Younge  k  J.  404. 

(h)  Fowl.  P.  Excheq.  1  V.  2G0 ;  and  see  1  Campb.  561,  (a),  and  the  cases  there  cited. 

(i)  13  Price,  289.     M'Clel.  103,  S.  C. 

{k)  3  Price,  242.  And  see  further,  as  to  the  nature  and  efifect  of  an  injunction,  Cora.  Dij?. 
tit.  Chancery,  D.  8,  &c.  1  Madd.  Chan.  130,  &c.  And  for  the  cases  in  which  the  court  of 
E.Kchequer  will,  or  will  not,  grant  an  injunction  after  trial,  for  want  of  an  answer  by  one  of 
several  defendants,  see  3  Price,  164,  241.     Sec  also  4  Price,  346,  MClel.  80. 


*462  ^'^   IMPARLANCE,  AND 


♦CHAPTER    XVIII. 

Of  Imparlance,  cmd  Time /or  Pleading  ;  and  of  the  Notice  and  Rule 
to  plead,  and  Demand  of  Plea,  cfc. 

The  plaintiff  having  declared,  the  defendant  is  allowed  a  certain  time  to 
prepare  for  his  defence;  and  that  either  with  or  without  an  imparlance. 

Imparlance  is  said  to  be,  when  the  court  gives  a  party  leave  to  answer  at 
another  time,  without  the  assent  of  the  other  party  ',{aa)  and  in  this  sense,  it 
signifies  time  to  reply,  rejoin,  surrejoin,  &c.  But  the  more  common  signi- 
fication of  imparlance  is  time  to  plead  :[h)  and  it  is  either  general,{c) 
without  saving  any  exception  to  the  defendant,  which  is  always  to  another 
term  ',[d)  or  special,  which  is  sometimes  to  another  day  in  the  same 
term,(e)  with  a  saving  of  all  exceptions  to  the  writ,  bill,  or  count ;(/)  or 
of  all  exceptions  whatsoever:  which  latter  is  called  2i general  spec/aHmpar- 
lance.(^)  The  general  imparlance  is  of  course,  when  the  defendant  is  not 
bound  to  plead  the  same  term ;  but  a  special  imparlance  is  not  allowed 
without  leave  of  the  court,  in  the  King's  Bench  \{]i)  and  the  court  will  not 
grant  a  special  imparlance,  except  to  prevent  injustice. (z)  In  the  Common 
Pleas,  general  imparlances  are  entered  of  course  by  the  attorneys ;  and  it 
is  a  rule,  that  "  all  attorneys  and  clerks  do  duly  enter,  or  cause  to  be 
entered,  imparlances  or  incipiturs  in  all  causes,  according  to  the  ancient 
usage  and  custom  of  this  court ;  and  that  the  want  of  entering  an  impar- 
lance or  incipitur,  in  every  cause  wherein  imparlances  ought  to  be  entered, 
shall  be  a  sufficient  cause  for  the  defendant  to  have  a  further  imparlance 
of  course. "(A';)  A  special  imparlance,  in  that  court,  may  be  granted  by 
the  p)rothonotaries,  so  as  to  enable  the  defendant  to  plead  in  abatement, 
within  the  first /owr  days  of  the  next  term  after  the  delivery,  or 
[  *463  ]  filing  and  notice  *of  declaration. (a)  But  a  special  imparlance, 
saving  all  exceptions  to  the  jurisdiction,  cannot  be  entered  with- 
out leave  of  the  court.[hh) 

After  a  general  imparlance,  the  defendant  can  only  plead  in  har  of  the 
action  ;(cc)  and  cannot  regularly  plead  to  the  jurisdiction  of  the  court,(cc) 
in  abatement, [dd)  or  a  tender  and  touts  temps  prist.  It  is  then  also  too 
late  to  claim  conusance, [dd)  or  demand  oyer  of  a  deed,(ge)  &c.  After  a 
special  imparlance,  the  defendant  may  plead  in  abatement,(^^)  though  not 
to  the  jurisdiction  of  the  court.(^_5r)    And  where  the  defendant  pleaded  a 

(aa)  Com.  Dig.  tit.  Pleader,  D.  1. 

(6)  2  Mod.  62.     2  Show.  310.     Barnes,  346.     2  Wms.  Saund.  5  Ed.  1,  e,  (2). 

(c)  Hardr.  365.  1  Lutw.  46.  12  Mod.  529,  S.  C.  Gilb.  C.  P.  183,  211.  4  Bac.  Abr.  27, 
8.     3  Blac.  Com.  301. 

{d)  6  Mod.  28.  (e)  Id.  8.     10  Mod.  127.     Com.  Dig.  tit  Pleader,  D.  1. 

(/)  Append.  Chap.  XVIII.  ?  1. 

[g)  For  an  account  of  the  different  kinds  of  imparlances,  when  and  how  granted,  and  what 
may  or  may  not  be  done  after  each  of  them,  see  2  Wms.  Saund.  5  Ed.  1,  (2.)  1  Chit.  PL 
4  Ed.  375,  &c.     2  Blac.  Rep.  1094. 

(h)  R.  E.  5  Ann.  K.  B.  [i)  2  Chit.  Rep.  214. 

{k)  R.  T.  21  Car.  II.  reg.  2,  C.  P.;  and  see  R.  M.  1654,  §  14,  C.  P. 

(a)  Pr.  Reg.  1.  Cas.  Pr.  C.  P.  78.  Barnes,  224,  S.  C.  Id.  334.  And  for  the  note  for  an 
imparlance,  in  C.  P.  see  Append.  Chap.  XVIII.  ^  2. 

(bb)  2  Blac.  Rep.  1094.  {cc)  4  Bac.  Abr.  29.     Gilb.  C.  P.  184.     Steph.  PL  436. 

(dd)  Post,  Chap.  XXVI.  (ee)  Post,  Chap.  XXIII. 

Iff)  1  Lutw.  6.  {gg)  2  Wms.  Saund.  5  Ed.  1,  e,  (2). 


TIME  FOR  PLEADING,  ETC.  463 

misnomer  in  abatement,  after  an  imparlance,  thus  :  "  And  A.  B.  wlio  was 
arrested  by  the  name  of  A.  C.  comes,  kc,"  tlio  court  in  one  case  held  this 
to  be  tantamount  to  a  special  imparlance :(////)  This  case,  however,  has 
since  been  overruled,  by  a  subse<iuent  determination. (i/)  And  where  a 
bill  was  filed  in  vacation  against  an  attorney,  as  of  the  preceding  terra, 
Avith  a  special  memorandum  of  a  subsequent  day  in  vacation,  stating  the 
cause  of  action  to  have  accrued  after  the  last  day  of  term,  and  the 
defendant  pleaded  a  plea  in  abatement,  entitled  of  the  following  term, 
without  a  special  imparlance  ;  the  court  of  King's  Bench  held  that  this 
was  regular,  and  set  aside  a  judgment  signed  as  for  want  of  a  plea.f^A;) 
After  a  general  special  imparlance,  the  defendant  may  not  only  plead  in 
abatement  of  the  writ,  bill  or  count,  but  also  privilege,{l)  which  is  a  plea 
to  the  person  of  the  defendant,  affecting  the  jurisdiction  of  the  court. (w) 
The  defendant  was  not  formerly  allowed  to  plead  a  tender  and  touts  temps 
jjrist,  after  any  kind  of  imparlance  ;(?«)  and  the  reason  assigned  was,  that 
by  craving  time,  he  admitted  he  was  not  ready,  and  so  falsified  his  plea. 
But  it  is  now  settled,  that  a  plea  of  tender,  being  an  issuable  plea,  may  be 
pleaded  after  imparlance,(o)  as  well  as  before  ;  though,  for  avoiding  the 
inconsistency  above  stated,  it  must  always  be  entitled  of  the  same  term 
with  the  declaration  :(jj)  and  where  it  is  pleaded  after  an  imparlance,  a 
judge's  order  must  be  obtained  in  the  King's  Bench,  or  treasury  rule  in 
the  Common  Pleas,(^7)  for  leave  to  plead  it  as  of  the  preceding  term. 

If  the  defendant  plead  in  abatement  after  a  general  imparlance,  or  to 
the  jurisdiction  of  the  court  after  a  special  imparlance,  the  plaintiff  may 
sign  judgment,(r)  or  apply  to  the  court  by  motion  to  set  aside 
the  plea  ;{s)  *or  he  may  demur  thereto,(i^)  or  allege  the  impar-  [  *4G4  ] 
lance  in  his  replication,  by  way  of  estoppel  :(b)  but  if  the  plaintiff, 
instead  of  taking  any  of  these  advantages,  reply  to  the  special  matter  of 
the  plea,  the  fault  is  cured. (c) 

In  the  King's  Bench,  the  defendant  was  formerly  allowed  to  imparl  to 
the  term  next  after  the  return  of  the  process,  unless  the  proceedings  were 
by  original^[d)  upon  a  habeas  corpus,  for  or  against  attorneys  or  other 
privileged  persons,  or  against  j;»?'«so>t6'rs  in  custody  of  the  marshal. (c)  On 
proceedings  by  original,  if  the  action  were  laid  in  London  or  3Iiddlesex, 
and  the  defendant  appeared  before  the  last  return  of  the  term ;  or  if  the 

(hh)  1  Blac.  Rep.  51.     1  Wils.  2G1,  S.  C.  (»)  4  Durnf.  &  East,  520. 

{kk)  3  Darn.  &  Aid.  259.     1  Chit.  Rep.  704,  S.  C. 

(/)  1  Lev.  54.     Hardr.  365.     1  Lutw.  46.     12  Mod.  529,  S.  C.     Gilb.  C.  P.  185,  211. 

(m)  5  Mod.  335. 

(n)  4  Bac.  Abr.  28.  Gilb.  C.  P.  184.  Sty.  P.  R.  405.  2  Lil.  P.  R.  37.  1  .Sid.  365.  2 
Mod.  62.  2  Salk.  622.  1  Ld.  Raym.  254.  Garth.  413,  14,  S.  C.  1  Lutw.  238,  9.  R.  E. 
5  Ann.  (a).     R.  T.  5  &  6  Geo.  II.  (h),  K.  B. 

(o)  Dyer.  300.    Freem.  134.    1  Wms.  Saund.  5  Ed.  33,  (2).    2  VTms.  Saund.  5  Ed.  2,  (2). 

{p)  1  Bur.  50. 

{q)  Barnes,  343,  351,  355,  357,  359,  361 ;  and  see  1  H.  Blac.  369. 

(r)  4  Durnf.  &  East,  520 ;  and  see  7  Durnf.  &  East,  298,  447,  {d) ;  but  see  3  Barn.  &  Aid. 
259.     1  Chit.  Rep.  704,  S.  C. 

(s)  6  Durnf.  &  East,  373. 

(o)  Sty.  P.  R.  465.  3  Inf(.  Chr.  40.  Barnes,  334.  1  V'ils.  261.  1  Blac.  Rep.  51,  S.  C. 
Per  Cur.  E.  22  Geo.  III.  K.  B.  Green  v.  Simmester,  H.  27  Geo.  III.  K.  B.  6  Durnf.  &  East, 
369.     2  Bos.  &  Pul.  384.     2  Maule  &  Sel.  484. 

(6)  1  Lutw.  23.     3  In^t.  Cler.  39. 

(c)  1  Vent.  236 ;  and  sec  2  Wms.  Saund.  5  Ed.  1,  e.  (2). 

(d)  Skin.  2  ;  but  see  8  Mod.  228. 

(e)  R.  M.  5  Ann.  reg.  III.  (a),  K.  B.  Gilb.  K.  B.  310.  Gilb.  C.  P.  43,  182.  4  Bac. 
Abr.  27. 


464  OF  IMPARLANCE,  AND 

action  were  laid  in  any  other  county,  and  the  defendant  appeared  the  frst 
return  of  Hilary  or  Trinity  term,  or  before  the  third  return  of  Michael- 
mas or  Easter  term,  no  imparlance  was  allowed,  without  consent  or  special 
rule.(/)  So,  upon  a  habeas  corpus,  returnable  in  dlichaehnas  or  Easter 
term,  if  the  declaration  were  delivered  before  the  third  return,  the  defend- 
ant was  not  entitled  to  an  imparlance. (</)  And  where  the  proceedings  were 
for  or  against  attorneys  or  other  privileged  persons, (7i)  or  ngsiinst prisoners 
in  custody  of  the  marshal, (i)  the  defendant  was  bound  to  plead,  without  any 
imparlance,  the  same  term  the  declaration  was  delivered,  if  delivered /oitr 
days  exclusive  before  the  end  of  the  term.  Afterwards,  the  time  was  nar- 
rowed for  pleading  upon  a  latitat,  &c. ;  and  it  became  a  rule,  that  where  the 
cause  of  action  was  specially  expressed  in  the  process,  the  defendant 
should  not  have  liberty  of  imparling,  without  leave  of  the  court ;  but 
should  plead  within  the  time  allowed,  by  the  course  of  the  court,  to 
defendants  sued  by  original  \\Yh.{k)  And  at  length  it  was  determined, 
that  even  upon  a  special  capias  by  original,  the  defendant  should  not  be 
obliged  to  plead  sooner  than  upon  a  common  latitat.{l) 

The  former  distinctions  upon  this  subject  being  thus  gradually  abolished, 
it  is  now  settled,  in  the  King's  Bench, (m)  that  "in  all  cases  when  the  de- 
fendant has  appeared  and  filed  common  bail,  or  put  in  and  perfected  spe- 
cial bail,  or  the  plaintiff  has  appeared  and  filed  common  bail  for  him 
according  to  the  statute,  and  the  declaration  is  delivered,  or  filed  and 
notice  thereof  given,  four  days  exclusive  before  the  end  of  the  term  in 
which  the  writ  was  returnable,  if  the  venue  be  laid  in  London  or  Middle- 
sex, and  the  defendant  live  within  twenty  miles  of  London,  the  declaration 
should  be  delivered  or  filed  absolutely,  with  notice  to  plead  within 
[  *465  ]  four  days ;  *or  in  case  the  action  be  laid  in  any  other  county,(a) 
or  the  defendant  live  above  twenty  miles  from  London,  within 
eight  days  e.vclusive{b)  after  the  delivery  or  filing  thereof;  and  the  defend- 
ant must  plead  accordingly,  without  any  imparlance  :  or  in  default  thereof, 
the  plaintiff  may  sign  judgment."  If  the  declaration  be  delivered  or  filed, 
with  notice  to  plead  within  the  first  four  days  of  term,  the  defendant  has 
all  the  morning  of  the  fifth  day  to  plead ;  and  judgment  cannot  be  signed 
for  want  of  a  plea ;  till  the  opening  of  the  office  in  the  afternoon  of  that 
day  :(c)  but  in  any  other  part  of  the  term,  if  the  defendant  do  not  plead 
within  the  four  days,  the  plaintiff  may  sign  judgment  in  the  morning  of 
the  fifth  day.(c) 

When  the  defendant  has  not  appeared,  or  filed  bail,  the  rule  in  the  King's 
Bench,  we  have  seen,(cZ)  is  that ''  upon  all  process  returnable  before  the  last 
return  of  any  term,  where  no  affidavit  is  made  and  filed  of  the  cause  of 
action,  the  plaintiff  may  file  or  deliver  the  declaration  de  bene  esse,  at  the 
return  of  such  process,  with  notice  to  plead  in  eight  days  exclusive{e)  after 

(/)  R.  M.  1654,  §  15,  K.  B. 

{g)  1  Mod.  1.     2  Salk.  515.     1  Wils.  154 ;  and  see  6  Durnf.  &  East,  752. 

(A)  2  Salk.  517.  6  Mod.  175,  R.  E.  5  W.  &  M.  reg.  III.  §  3,  (a),  K.  B.;  and  see  R.  M.  5 
Ann.  reg.  3,  {a),  K.  B. 

{i)  R.  H.  2  Geo.  II.  reg.  1,  K.  B.  ;  and  see  1  Dowl.  &  Ryl.  186. 

{k)  R.  M.  5  Ann.  reg.  3,  K.  B.  (I)  1  Str.  684. 

(m)  R.  T.  5  &  6  Geo.  II.  K.  B. 

(a)  1  Maule  &  Sel.  566.  (6)  R.  T.  5  &  6  Geo.  II.  (a),  K.  B. 

(c)  Shephard  v.  Mackreth,  E.  35  Geo.  III.  K.  B.  Lingard  v.  Peto,  M.  48  Geo.  III.  K.  B.  4 
Dowl.  &  Ryl.  392,  (6).     2  Barn.  &  Cres.  798.     4  Dowl.  &  Ryl.  391,  S.  C. 

{d)  Ante,  453. 

(c)  The  days  in  this  case  are  both  exclusive:  therefore,  if  notice  of  declaration  be  served 
on  the  Utb,  judgment  cannot  be  signed  till  the  20th.     Per  Cur.  M.  46  Geo.  III.  K.  B. 


TIME  FOR  PLEADING,  ETC.  465 

tlie  filinfif  or  dellverv  thereof;"  being  the  same  time  as  is  allowed  for  the 
defendant  to  appear  and  file  common  bail :(/)  and  "  if  the  defendant  do  not 
file  common  bail,  and  plead  within  the  said  eiijltt  days,  the  plaintiff,  having 
filed  common  hail  for  him,  may  si^'n  judgment  for  want  of  a  jilca."(//)  But 
if  the  declaration  be  not  filed  until  aftir  the  return  of  the  process, the  de- 
fendant has  ('////</  days  to  plead  from  the  time  of  filing  it,  wlienever  it  may 
be.(/i)  And  "  upon  all  such  process,  where  an  affidavit  is  made  and  filed  of 
the  cause  of  action,  the  declaration  may  be  filed  or  delivered  de  bene  esse, 
at  the  return  of  such  process,  with  notice  to  plead  in  four  days  after  tjie 
filing  or  delivery,  if  the  action  be  laid  in  London  or  Middleser,  and  the 
defendant  live  within  twenty  miles  of  London,  and  in  cinlit  days,  if  tho 
action  be  laid  in  any  other  county,  or  the  defendant  live  above  twentij  miles 
from  London  ;'\(i)  being  the  same  time  as  is  allowed  for  pleading,  when 
the  declaration  is  delivered  or  filed  absolutely  :{i)  and  "if  the  defendant 
put  in  bail,  and  do  not  plead  within  such  times  as  are  respectively  before- 
mentioned,  judgment  may  be  signed. "(//)  But  in  all  the  foregoing  cases, 
the  declaration  should  be  delivered,  or  filed  and  notice  thereof  given, /oj/r 
days  exclusive  before  the  end  of  the  term,  a  rule  to  plead  duly  entere<l,  and 
a  plea  demanded,  when  necessary. (A:)  In  bailable  actions,  however,  the 
defendant  cannot  regularly  plead  in  bar,  until  the  bail  are  perfected ;  and 
if  he  plead  before,  his  plea  may  be  considered  as  a  nullity, 
although  the  *bail  afterwards  justify. fa)  And  where  the  plain-  [  *4G0  ] 
tiff  declared  de  bene  esse,  and  the  defendant  pleaded  in  abate- 
ment before  he  had  put  in  special  bail,  and  the  plaintiff,  treating  his  plea 
as  a  nullity,  signed  interlocutory  judgment,  the  court  held  it  to  be 
regular.(6) 

In  the  Common  Pleas,  it  is  a  rule,  that  "upon  all  process  returnable  the 
first,  second  or  third  return  of  any  term,  (since  extended  to  process  return- 
able the  fourth  return  of  JEaster  term, (c)  if  the  plaintiff  declare  in  London 
or  3Iiddlese.r,  and  the  defendant  live  within  tiventy  miles  of  London,  the 
defendant  shall  plead  within /our  days  after  such  declaration  delivered,  with 
notice  to  plead  accordingly,  without  any  imparlance,  provided  the  declara- 
tion be  delivered  four  days  before  the  end  of  the  term ;  and  in  case  the 
plaintiff  declare  in  any  other  county,  or  the  defendant  live  above  twenty 
miles  from  London,  the  defendant  shall  plead  within  eiyitt  days  after  the 
declaration  delivered,  with  notice  to  plead  accordingly,  without  any  impar- 
lance.(tZ)  This  rule  applies  to  declarations  filed  or  delivered  dc  bene 
e8se,{d)  as  well  as  to  such  as  are  delivered  absolutely ;  and  was  e.xtended, 
by  a  subsequent  rule,(c)  to  process  returnable  the  last  return  of  any  term  ; 
providetl  the  declaration  be  filed  or  delivered  on  the  day  of  such  return,  or 
on  the  day  next  after  such  return,  in  case  the  same  shall  not  happen  on  a 
Sunday,  in  which  case  the  plaintiff  shall  have  the  whole  of  the  day  follow- 

(/)  Ante,  240. 

(g)  R.  T.  22  Geo.  III.  K.  B.;  and  see  former  rule  of  M.  10  Geo.  II.  rcj.  2  K.  B.    Ante,  453. 

(A)  I  Bur.  56.     JJelatre  .j-  Manyo,  .M.  20  Geo.  III.  K.  B. 

(t)  Ante,  464,5. 

(ff)  R.  T.  22  Geo.  III.  K.  B. ;  and  see  former  rule  of  M.  10  Geo.  II.  ref/.  2.  K  B.    Ante,  453. 

(it)  R.  T.  5  &  6  (;eo.  II.  (/>).     R.  ,M.  10  Geo.  IF.  rej.  2.     R.  T.  22  Geo.  III.  K.  B. 

(a)  4  Durnf.  k  Rust,  578.     2  Dowl.  &  Ryl.  252  ;  but  see  2  East,  406.     11  East,  411. 

(h)  2  Dowl.  &  Rvl.  252. 

(c)  R.  H.  35  Geo.  III.  C.  P.  2  II.  Blac.  ocr  i-rf.  551.  7  Taunt.  71,  (a).  2  Marsh.  337,  (a). 
2  Chit.  Rep.  381.     .'1«/^  453. 

(rf)  R.  T.  8  Geo.  III.  C.  P.  2  Wils.  381.  1  Sel.  Pr.  2  Ed.  292,  3;  and  see  former  rules  of 
H.  9  Ann.  reg.  2,  M.  &  E.  3  Geo.  II.  C.  P.     Ante,  453. 


466  OP  IxMPARLANCE,  AND 

ing,  to  file  or  deliver  such  declaration  as  aforesaid.  If  the  declaration  be 
filed  de  bene  esse,  on  the  essoin  day  of  the  return  of  the  writ,  the  defendant 
is  entitled,  in  the  Common  Pleas,  to  eigJit  days  time  to  plead;  and  the 
defendant  must  plead  in  that  time,  although  by  the  rules  of  the  ofiice,  no 
person  is  allowed  to  search  for  a  declaration,  till  the  first  day  in  full 
term.(e)  But  if  the  declaration  be  filed  after  the  essoin  day,  and  on  or 
before  the  appearance  day,  the  defendant  is  entitled  only  to  four  days,  to 
be  computed  from  the  appearance  day ;  or  if  it  be  filed  after  the  appearance 
day,  then  to  four  days  from  the  time  of  delivery :(/)  And  the  days  are 
reckoned  inclusively/  in  that  court ;  so  that  if  a  declaration  be  filed  or 
delivered  on  the  first,  with  notice  to  plead  in  four  days,  the  plaintiff  is 
entitled  to  sign  judgment  for  want  of  a  plea,  on  the  opening  of  the  office 
in  the  afternoon  of  the  fifth  day. 

When  the  process,  in  the  King's  Bench,  is  returnable  the  last  return  of 
the  term  •,(g(/)  or,  in  the  Common  Pleas,  when  it  is  returnable  on  that  return, 
and  the  declaration  is  not  filed  or  delivered  on  the  return  day,  or  on  the 
day  following  ;((?)  or  where  the  process,  in  either  court,  is  returnable  be- 
fore, but  the  declaration  is  not  delivered,  or  filed  and  notice  thereof  given, 
four  days  exclusive  before  the  end  of  the  term,{h)  the  defendant,  if  com- 
pletely in  court,  is  entitled  to  an  imparlance ;  and  must  plead 
[  *467  ]  within  *the  first  four  days  of  the  next  term  ;  provided  the 
declaration  be  delivered,  or  filed  and  notice  thereof  given, 
before  the  essoin  day  of  that  term :  otherwise  the  defendant  will  be 
allowed  to  imparl  to  the  subsequent  term. (a)  But  if  the  declaration  be 
delivered  before  such  essoin  day,  though  without  a  notice  to  plead,  and 
the  defendant  appear  and  accept  the  declaration,  he  shall  not  have  an 
imparlance  to  the  subsequent  term  ;  the  notice  to  plead  not  being  neces- 
sary in  such  case,  as  it  would  be,  where  a  declaration  is  filed  de  bene 
esse.{b)  And  if  a  writ  be  returnable  the  last  day  of  one  term,  and  the 
defendant  do  not  justify  bail  until  the  fourth  day  of  the  next,  he  is  not 
entitled  to  an  imparlance  to  the  third  term  ;  the  foundation  of  which  is, 
that  no  laches  can  be  imputed  to  the  plaintiff,  for  not  declaring  until  the 
defendant  is  perfectly  in  court  :{cc)  And,  for  the  like  reason,  if  a  writ  be 
taken  out  against  two  defendants,  and  one  of  them  is  arrested,  or  served 
with  a  copy  of  it,  in  the  term  in  which  is  returnable,  but  the  other  can- 
not be  met  with,  so  that  it  becomes  necessary  to  take  out  another  writ 
against  him,  returnable  in  the  next  term ;  as  the  plaintiff  cannot  declare 
till  both  defendants  are  in  court,(c?)  they  are  neither  of  them  entitled  to 
an  imparlance,  on  account  of  the  plaintiff's  not  declaring  until  the  term 
in  which  the  latter  defendant  is  arrested,  or  served  with  process,((i)  or 
until  he  is  outlawed. (ee)  So,  the  defendant  is  not  entitled  to  an  impar- 
lance, where  the  delay  in  declaring  is  occasioned  by  himself;  as  by  his 
unecessarily  obtaining  an  order  for  particulars,  with  a  stay  of  proceed- 

(e)  1  Taunt.  22.  (/)  2  Blac.  Rep.  1243. 

Iffff)  R.  T.  5  &  6  Geo.  II.  (6).     R.  M.  10  Geo.  II.  reff.  2.     R.  T.  22  Geo.  III.  K.  B. 

(c)  R.  H.  35  Geo.  III.  C.  P.    2  H.  Blue.  oct.  ed.  551.    7  Taunt.  71,  la).    2  Marsh.  337,  (a).  2 
Chit.  Rep.  381.  Ante,  453. 

(A)  R.  T.  5  &  6  Geo.  II.  (6),K.  B. 
(a)  Vidian's  Inirod.  II.  2  Wms.  Saund.  5  Ed.  1,  e,  (2). 
(6)  Per  Cur.  M.  21  Geo.  III.  K.  B.  Fo.H,  473. 

(cc)  5  Duruf.  &  East,  372.  2  Bos.  &  Pul.  126.  6  Taunt.  261.  1  Marsh.  587,  S.  C. :  and  see 
9  Dowl.  &  Ryl.  18. 

(d)  Ante,  420,  446,  7  ;  and  see  1  Chit.  Rep.  359,  (a), 
(ee)  Slack  v.  Ilurd,  T.  31  Geo.  III.  K.  B. 


TIME  FOR  PLEADING,  ETC.  4G7 

ings  until  they  have  been  dclivored.f/)  So,  ulicn  a  defendant  removes 
the  cause  by  hahcas  corpus  I'roin  an  inferior  court,  and  the  plaintiflf  docs 
not  declare  until  the  next  term,  the  defendant  is  not  entitled  to  an  impar- 
lance ;  for  such  removals  beinf^  in  general  considered  as  dilatory,  it  would 
only  be  adding  to  the  delay,  if  an  imparlance  were  granted. (^)  And  it 
is  not  usual  for  the  court,  or  a  judge,  in  any  case  to  grant  a  rule  for  an 
imparlance  ;  but  when  the  defendant  is  entitled  thereto,  he  takes  it  as  a 
matter  of  course. (////) 

In  the  Exchequer  it  is  a  rule,('')  that  "upon  all  process  to  be  issued  out 
of  that  court,  returnable  the  first  or  second  return,  or  on  any  day  before 
the  second  return  of  any  term,  (or,  according  to  the  present  practice,  if 
returnable  on  any  day  before  the  four  last  days  of  the  term,)(/r)  where 
the  defendant  shall,  at  the  return  thereof,  enter  an  appearance  or  file  spe- 
cial bail,  (as  the  case  may  rcfjuire,)  if  the  plaintiff  declare  in  London  or 
Middleser,  and  the  defendant  live  within  trventy  miles  of  Lon- 
don, he  shall  *plead  to  the  said  declaration  within  four  days  [  *4G8  ] 
after  the  delivery  thereof,  without  any  imparlance ;  and  in  case 
the  plaintiff  declare  in  any  other  county,  or  the  defendant  live  above 
tiventy  miles  from  Jjondon^  then  he  shall  plead  within  euilit  days  after  the 
delivery  thereof,  without  any  imparlance:  or  in  default  thereof,  the  plain- 
tiff" may  sign  judgment,  a  rule  to  plead  being  duly  given,  unless  the  court, 
or  one  of  the  barons,  shall  think  proper,  on  the  special  circumstances  of 
the  case,  to  grant  an  imparlance:  but  no  defendant  shall  be  compelled  to 
plead,  by  virtue  of  this  rule,  unless  the  declaration  be  delivered /oh?*  days 
before  the  end  of  the  term  in  which  the  writ  is  returnable,  with  notice 
thereon  indorsed  of  the  time  wherein  such  defendant  is  to  plead."  The 
time  for  pleading,  on  a  declaration  filed  or  delivered  de  bene  esse,  before 
tiie  defendant's  appearance,  has  been  already  stated  :(a)  And  it  is  a 
rule,(Z')  that  "  where  any  declaration  shall  be  delivered  to  the  defendant's 
attorney  or  clerk  in  court,  or  notice  of  a  declaration  shall  be  delivered  to 
any  defendant  according  to  the  statute,  before  the  essoin  day  of  any 
term,  and  the  defendant  shall  imparl  until  the  next  term,  he  shall  plead 
to  the  said  declaration,  within  the  first /o?o'  days  of  such  next  term,  a 
rule  to  plead  being  duly  given ;  and  in  default  thereof,  the  plaintifi"  shall 
be  at  liberty  to  sign  judgment." 

If  four  terms  have  elapsed  since  the  delivery  of  the  declaration,  the 
defendant  shall  have  a  whole  term's  notice  of  the  rule  to  plead, (t")  before 
judgment  can  be  entered  against  him,((?)  unless  the  cause  have  been  stayed 
by  injunction,{c)  or  privilege  ;  which  notice  must  be  given  before  the 
essoin  day  of  the  term  :{ff)  And  where  a  general  notice  is  given,  of  the 
plaintiff's  intention  to  proceed  in  the  cause,  it  docs  not  extend  beyond  the 
term  ;  therefore  a  rule  to  plead  may  be  entered,  and  judgment  signed,  in 
the  vacation. (^^)   This  rule  was  established,  for  the  purpose  of  preventing 

(/)  2  IJarn.  &  Aid.  390.   1  Cliit.  Rep.  230,  S.  C. 
Iff)  6  Durnf.  &  Kast,  752  ;  but  sec  2  Bos.  Sc  Pul.  137.  Ante,  413. 
(/i/()  Phillips  V.  llardiitge,  T.  24  Geo.  III.  K.  B.  Boyd  v,  Gordon,  II.  30  Geo.  III.  K.  B. 
(j)  II.  M.  5  Geo.  III.  in  Scnc.  Man.  E.x.  Append.  218  ;  and  see  K.  T.  26  &  27  Geo.  II.  I  G,  9, 
and  R.  T.  26  Geo.  III.  in  Scac.  Id.  212,  13  ;  221,2. 

(k)  Man.  E.x.  Pr.  200,  (t).  {a)  Ante,  454. 

(b)  R.  H.  16  Geo.  III.  in  Scac.  Man.  E.x.  Append.  220  ;  and  see  former  rule  of  T.  26  &  27 
Geo.  II.  g  8,  in  Scac.  Id.  213. 

(c)  Append.  Chap.  XVIII.  ^  7.  (d)  R.  T.  5  &  G  Geo.  II.  {/>),  K.  B. 
(e)  Id.  ibid.  2  Bur.  660.  Doug.  71.  2  Blac.  Rep.  784. 

(/)  2  Str.  1164.   1  Str.  211, coJilra.  (y^/)  2  Durnf.  k  East,  40. 


4(38  OF  IMPARLANCE,  AND 

any  surprise  on  the  defendant,  after  the  phaintiff  has  lain  by  four  terms, 
■without  proceeding  in  his  action  ;  and  therefore  it  does  not  apply,  where 
the  proceedings  have  been  delayed  at  the  defendant's  request.(/t) 

It  remains  to  be  observed,  within  what  time  the  defendant  must  plead 
after  changing  the  venue,  demanding  07/er,  giving  a  bill  o? pa7'ticulars,  or 
amending  the  declaration.  After  changing  the  venue,  the  defendant  must 
plead  to  the  new  action,  as  lie  should  have  done  in  the  other,  without  de- 
lay. (^)  After  the  delivery  of  oi/er,  the  defendant  shall  have  the  same  time 
in  terra  to  plead,  or  as  many  pleading  days,  as  he  had  when  he  demanded 
it:(/c)  And  formerly,  if  oj/er  had  been  demanded  in  the  Common  Pleas, 
after  the  rule  to  plead  was  out,  the  plaintiff  was  not  bound  to  give  it ;  though 
if  he  did,  he  could  not  have  signed  judgment  for  want  of  a  plea, 
[  *-469  ]  *till  the  next  forenoon  :{aa)  but  now,  as  will  be  seen  hereafter,  the 
demand  of  oT/ermnj  be  made  in  that  court,  as  well  as  in  the  King's 
Bench,  at  any  period  before  the  time  for  pleading  is  expired. (55)  In  the 
latter  court,  a  defendant  has  the  same  time  to  plead,  after  the  delivery  of  a 
bill  of  particulars,  as  he  had  when  the  summons  for  it  was  returnable  :{c) 
And  where  a  summons  for  better  particulars  of  the  plaintiff's  demand  was 
obtained  by  the  defendant, /owr  days  before  the  time  for  pleading  expired, 
but  the  plaintiff's  attorney  did  not  attend  till  the  third  summons,  and  the 
order  being  then  refused,  and  the  time  originally  allowed  for  pleading 
having  expired,  signed  judgment  for  want  of  a  plea  :  the  court  held,  that 
as  the  delay  was  occasioned  by  the  plaintiff's  attorney,  the  judgment  was 
signed  too  soon,  and  was  therefore  irregular. (J)  In  the  Common  Pleas, 
the  plaintiff  cannot  sign  judgment  for  want  of  a  plea,  till  the  expiration  of 
twenty-four  hours  after  the  delivery  of  a  bill  of  particulars :  though  the 
time  for  pleading  be  expired,  and  a  demand  of  plea  given,  more  than 
twenty-four  hours  before  that  time.(e)  And  in  that  court,  after  the  time 
for  pleading  has  expired,  but  before  judgment  signed  against  the  defend- 
ant, if  the  court  on  his  application  stay  proceedings,  till  the  plaintiff  give 
security  for  costs,  to  be  approved  by  the  prothonotary,  the  plaintiff,  though 
he  give  security  instanter,  which  is  accepted  by  the  defendant,  is  not  at 
liberty  to  sign  judgment,  before  the  opening  of  the  office  on  the  next 
morning.(/)  In  the  King's  Bench,  if  the  plaintiff  amend  his  declaration 
the  same  term,  the  defendant  shall  have  two  days,  exclusive  of  the  day  of 
amendment,  to  alter  his  first  plea,  or  plead  de  novo  ;{g)  but  if  the  amend- 
ment be  made  in  a  subsequent  term,  the  defendant  is  entitled  to  a  new 
four  day  rule  to  plead  ;(A/i)  though  a  demand  of  plea  is  unnecessary. (w) 
And  where  the  plaintiff  gave  notice  of  trial  for  the  assizes,  and  afterwards 
countermanded,  and  then  applied  for  an  order  to  amend  his  declaration, 

(A)  3  Durnf.  &  East,  530  ;  and  see  2  Blac.  Rep.  V62. 
{i)  R.  M.  1654,  g  5,  K.  B.  R.  M.  1654,  §  8,  C.  P. 

{k)  R.  T.  5  &  6  Geo.  II.  (6),  K.  B.    1  Str.  705.   Prac.  Reg.  28,  300,  301.  Barnes,  238,  254. 
Cas.  Pr.  C.  P.  72,  81,  143,  S.  C.  8  Durnf.  &  East,  356,  7. 

{aa)  Pr.  Reg.  300.  Cas.  Pr.  C.  P.  72,  S.  C. ;  and  see  id.  73, 96.  Pr.  Reg.  278.  Barnes,  329,  S.  C. 
[hb)  Barnes,  268,  326,  7.  2  Wils.  413.  2  Bos.  &  Pul.  379.  Post,  Chap.  XXIII. 

(c)  13  East,  508  ;  and  see  4  Barn.  &  Cres.  970.  7  Dowl.  &  Ryl.  458,  S.  C. 

(d)  5  Barn.  &  Cres.  769.  8  Dowl.  &  Ryl.  607,  S.  C. ;  and  see  4  Barn.  &  Ores.  970.  7  Dowl. 
&  Ryl.  458,  S.  C.  Ante,  301. 

(e)  New  Rep.  C.  P.  361  ;  but  see  2  Bos.  &  Pul.  303,  scmb.  contra;  and  see  2  Moore,  6     .  8 
Taunt.  592,  S.  C. 

(/)  3  Bos.  &  Pul.  319. 

[0)  1  Sir.  705  ;  and  see  R.  M.  10  Geo.  II.  ng.  2,  (J),  K.  B. 

(M)  8  Durnf.  &  East,  87.  {il)  3  Barn.  &  Aid.  137. 


TIME  FOR  PLEADING,  ETC.  469 

■which  order  was  obtained  on  tlie  terms  of  the  defendant's  having  an 
iraparhinco  until  the  next  term,  the  court  of  King's  Bench  refused  to 
rescind  so  much  of  the  order  as  related  to  the  imparlance. (^)  In  the 
Common  Pleas,  it  seems  that  a  new  four-day  rule  to  plead  is  in  all  casc3 
necessary  to  be  given  by  the  plaintiff,  on  amending  his  declaration. (/) 

If  the  defendant  be  not  prepared  to  plead,  by  the  expiration  of  the  time 
allowed  him  for  that  purpose,  his  attorney  or  agent  should  take  out  a 
suynmons,  and  obtain  an  order,  for  time  ;(w)  which  may  be  repeated,  if 
necessary:  And  in  trover  for  goods,  where  the  defence  was,  that 
they  had  'been  sold  by  the  plaintiff',  the  court  of  King's  Ilench  [  *470  ] 
gave  the  defendant  time  to  plead,  in  order  that  he  might  obtain 
a  discovery  from  the  court  of  Chancery.(flr)  So  where  the  plaintiff,  being 
indicted  for  felony,  sued  a  banker  for  money  he  had  paid  him,  which  was 
surmised  to  be  the  produce  of  the  felony,  the  court  of  Common  Pleas,  on 
application,  gave  the  defendant  time  to  plead  in  a  month  after  the  trial 
of  the  indictment. (^>)  The  summons  should  be  regularl}''  served  on  the 
plaintiff's  attorney  or  agent  :(t')  and  when  taken  out,  and  made  returnable 
before  the  expiration  of  the  time  for  pleading,  it  is  a  stay  of  proceedings, 
pending  the  application  ;((?)  but  it  is  otherwise  when  taken  out,  or  made 
returnable,  after  the  expiration  of  the  time  for  pleading. ((/)  In  the  latter 
case,  the  plaintiff  is  at  liberty  to  sign  judgment,  before  the  summons  is 
returnable  :((^)  but  if  he  neglect  to  do  so,  he  cannot  afterwards  sign  judg- 
ment :(/)  it  being  a  rule,  that  if  the  summons  be  returnable  before 
judgment  is  signed,  it  prevents  the  plaintiff  from  afterwards  signing  it.(^) 
When  the  object  of  the  summons  is  collateral  to  the  time  for  pleading, (A) 
as  to  discharge  the  defendant  out  of  custody,  on  filing  common  bail,  kc, 
it  will  not  in  general  operate  as  a  stay  of  proceedings. 

The  plaintiff's  attorney  or  agent,  on  being  served  with  the  summons, 
either  indorses  his  consent  to  an  order  being  made  upon  it,  attends  the 
judge  or  makes  default.  In  the  latter  case,  the  defendant's  attorney  or 
agent,  after  waiting  half  an  hour,(/)  should  take  out  a  second  summons, 
and  after  that  a  third,  (if  necessary,)  which  should  be  respectively  served 
and  attended  as  tlie  first;  and  if  default  be  made  upon  three  summonses, 
the  judge,  on  affidavit  thereof,( /c/r)  will  make  an  order  ex  jjarte  :  but  if  any 
one  of  the  summonses  be  attended,  the  judge  will  make  an  order  upon, 
or  discharge  it,  as  he  sees  cause.  The  time  allowed,  in  the  King's  Bench, 
is  reckoned-  exclusive  of  the  day  of  the  date  of  the  order. (//)  In  the 
Common  Pleas,  it  is  said  to  be  inclusive   of  the  date  of  the  order,  but 

[k]  1  Chit.  Rep.  24G.  (/)  2  Blac.  Rep.  785. 

(m)  Append.  Chap.  XVIH.  ?  12,  13. 

(a)  2  Durnf.  &  East,  683.  Nutt,  administratrix  v.  Wright,  baronet,  E.  &  T.  25  Geo.  III.  K.  B. 

\b)  4  Tiuint.  825.  (c)  Ante,  72,  !tG,  7. 

{(l)  Say.  Rep.  1G5.  Per  Cur.  M.  22  Geo.  III.  1  Chit.  Rep.  GS9,  K.  B.  Barnes,  2  Jo,  252. 
Gas.  Pr.  C.  P.  137.  Pr.  Reg.  202,  S.  C.  Barnes,  255.  Ca?.  Pr.  ('.  P.  114,  S.  ('.  Barnes,  254. 
Cas.  Pr.  C.  P.  142.  Pr.  Reg.  2^3,  S.  C.  Barnes,  273.  2  Blac.  Rep.  954.  2  New  Rep.  C.  P. 
1G9.   G  Taunt.  240. 

(c)  2  Blac.  Rep.  954;  and  see  1  Chit.  Rep.  97.  2  Barn.  &  Aid.  356,  S.  C.   1  Chit.  Rep.  689. 

(/)  2  Barn,  k  Aid.  355.   1  Chit.  Rep.  93,  S.  C. 

{g)  1  Chit.  Rep.  96,  7,  per  Iia)/ln/,  J.  6  Taunt.  240,  acco'd. 

[h)  Per  Cur.  M.  28  Geo.  III.  K.  li. 

\i)  R.  T.  35  Geo.  III.  K.  B.  6  Durnf.  &  East,  402.  R.  E.  23  Geo.  III.  V.  P.  Imp.  C.  P.  7 
El.  233,  67G. 

[kk]  Append.  Chap.  XVIII.  \  14,  15. 

{II)  Bv  the  .Master,  [Le  Blanc),  on  a  reference  from  the  court,  on  the  last  dav  of  Trinity 
term,  1827. 


470  0^  IMPARLANCE,  AND 

exclusive  of  tlic  Jay  -when  it  expires  ;(m)  and  therefore  where  an  order  for 
a  week  was  dated  the  IGth  of  May,  judgment  signed  for  want  of  a  plea  on 
the  23d,  was  hohlen  to  be  regular  :(m)  and,  in  the  latter  court,  it  seems 
that  when  the  time  to  plead  is  not  expired  at  the  time  of  making  the 
order,  the  time  allowed  is  to  be  reckoned  from  the  expiration  of 
[  *471  ]  the  time  to  plead,  and  *not  from  the  date  of  the  order,  or  what 
is  done  under  it.(a)  If  there  be  an  order  for  a  month's  time  to 
plead,  it  is  understood  to  mean  a  lunar,  and  not  a  calendar  month. (^) 
The  order  of  a  judge  for  time,  or  further  time  to  plead,  and  all  other 
orders,  whether  by  consent  or  otherwise,  should  be  regularly  drawn 
up  and  served :  it  being  a  rule,  in  the  King's  Bench, (c)  that  "  no  sum- 
mons for  further  time  to  plead,  reply  or  rejoin,  or  summons  for  further 
particulars  of  the  plaintiff's  demand,  defendant's  set-off,  or  other  parti- 
cular, be  granted  in  any  action  depending  in  that  court,  unless  the  last 
previous  order  for  time,  further  time,  or  particulars  respectively,  be  first 
drawn  up,  and  such  order  produced  at  the  time  of  applying  for  any  sucli 
summons."  And,  in  the  Common  Pleas,  a  consent  indorsed  on  a  judge's 
summons  is  not  binding  on  either  party,  unless  the  order  be  drawn  up  and 
served  pursuant  thereto. (cZc?)  In  that  court  also,  if  a  summons  be  taken  out 
for  time  to  plead,  and  the  defendant's  attorney  do  not  attend,  the  plaintiff 
must  get  the  summons  discharged,  before  he  can  sign  judgment  ;(e)  but  it 
is  said  to  be  otherwise  in  the  King's  Bench. (/) 

When  an  order  is  obtained  for  time  to  plead,  it  is  either  upon,  or  with- 
out terms.  The  usual  terms,  when  the  plaintiff  is  in  time  to  try  his  cause, 
are  pleading  issuable/,  rejoining  gratis,  and  taking  short  notice  of  trial,  or 
inquiry ;  but  if  he  be  not  in  time,  then  the  terms  are  pleading  issuably 
only  :  and  when  the  defendant  is  an  executor  or  administrator,  he  must 
undertake  not  to  plead  any  judgment  confessed  by  him,  since  his  time  for 
pleading  was  out(^)  for  otherwise  he  might  confess  judgments  in  the  mean 
time,  and  plead  them  in  bar  to  the  plaintiff 's  demand.  .  An  issuable  plea 
is  a  plea  in  chief  to  the  merits  ;{h)  upon  which  the  plaintiff  may  take  issue, 
and  go  to  trial :(/)  Therefore  a  plea  in  abatement  is  not  an  issuable  plea:(A;) 
nor  a  false  plea  of  judgment  recovered  ;(Z)  nor  a  plea  of  alien  Qi\emj,[m77i)  or 
other  plea,  which  does  not  goto  the  merits.{nn)  But  a  plea  of  tender  has 
been  deemed  an  issuable  plea;(o)  and  also  a  plea  of  the  statute  of  limita- 
tions,(2^)  or,  in  the  King's  Bench,  that  a  bail  bond  was  taken  for  ease  and 

(m)  2  H.  Blac.  35. 

{n)  Head  v.  iMo7it(jomery,  E,  26  Geo.  III.  C.  P.,  cited  by  Goidd,  J.,  in  2  H.  BLac.  35. 

[a)  2  Moore,  G55.  8  Taunt.  592,  S.  C. 

[b)  3  Bur.  1455.   1  Blac.  Rep.  450,  S.  C. ;  and  see  2  H.  Blac.  35.     1  Bos.  &  Pul.  479. 

[c)  R.  H.  59  Geo.  III.  K.B. ;  and  see  7  East,  542.  1  Chit.  Rep.  647,  [a). 

(dd)  4  Taunt.  253.  (e)  Barnes,  240,  255.  Gas.  Pr.  C.  P.  144,  S.  C. 

(/)  Imp.  C.  P.  7  Ed.  233. 

Iff)  8  Mod.  308  ;  and  see  1  Bulst.  122,  3.  Kinff  v.  Goodall,  E.  31  Geo.  III.  C.  P.  Imp.  C.P. 
233.   1  Maule  &  Sel.  405,  407.  5  Taunt.  333,  GG5,  671.  1  Marsh.  70,  280,  S.  C. 

(h)  7  Durnf.  &  East,  530.   Barnes,  263. 

(i)  2  Bur.  782.  2  Ken.  483,  S.  C.  Barnes,  263.  1  Chit.  PI.  4  Ed.  449,  50. 

[k)  1  Bur.  59.  Barnes,  263. 

(1)  1  Blac.  Rep.  376.  2  Wils.  117.  3  Wills.  33.  1  Moore,  431. 

{mm)  8  Durnf.  &  East,  71. 

(nn)  Valley  v.  Gardiner,  H.  24  Geo.  III.  K.  B.   Gillet  v.  Ridley,  E.  29  Geo.  III.  C.  P. 

(o)  1  Bur.  59.  Barnes,  263.  1  H.  Blac.  369. 

Ip)  3  Durnf.  &  East,  124.  Drinkwat.er  v.  Claridge,  H.  27  Geo.  III.  C.  P.  Imp.  C.  P.  7  Ed. 
253.  1  Bos.  &  Pul.  228;  but  see  1  Blac.  Rep.  35.  2  Wils.  253.  Stafford  \.  Eon-niree,  E.  24 
Geo.  III.  K.  B.  Bmso?i  v.  Kiny,  H.  25  Geo.  III.  K.  B.  2  Durnf.  &  East,  390,  contra. 


OF  NOTICE  TO  PLEAD.  47I 

favour. (y)  So  where  the  defendant,  in  an  action  on  a  recognizance  of 
bail,  under  a  judge's  order  to  plead  issuably,  pleaded  nul  tid 
record,  and  that  no  ca.  sa.  *\va9  sued  out  against  the  principal,  [  *472  ] 
the  court  of  Common  Pleas  held,  that  such  pleas  might  be  con- 
sidered as  issuable,  and  that  the  plaintiff  could  not  sign  judgment  as  for 
want  of  a  plea.(rt)  As  to  donurrcrs,  there  is  a  distinction  between  a  real 
and  fair  demurrer,  and  a  demurrer  without  good  cause :(/')  The  former  is 
an  issuable  plea,  within  the  meaning  of  a  judge's  order  ;(f)  the  latter  is  not, 
but  only  an  evasion  of  it.((^)  In  the  King's  Bench,  the  defendant,  when 
under  terms  of  pleading  issuably,  cannot  demur  special)}'  to  the  replica- 
tion ;  and  if  he  do,  the  plaintiff  may  sign  judgment,  as  for  want  of  a  plea. 
5  Dowl.  k  Ryl,  020,  ]}ut,  in  the  Common  Tleas,  the  condition  of  plead- 
ing issuably  applies  only  to  the  stage  of  the  proceedings  in  which  it  is  im- 
posed, and  does  not  affect  subsequent  proceedings :  Therefore,  where  a 
defendant,  being  under  terms  of  pleading  issuably,  put  in  an  issuable  plea, 
to  which  the  plaintiff  replied,  and  gave  notice  of  trial,  and  the  defendant 
demurred  specially  to  the  replication,  whereupon  the  plaintiff  signeil  judg- 
ment; the  court  of  Common  Pleas  held  that  the  judgment  was  irregular, 
4  Bing.  2G7.  And  a  defendant,  when  under  terms  of  pleading  issuably, 
cannot  assign  special  causes  of  demurrer,  even  though  the  causes  assigned 
be  matter  of  substance. (e)  But  where  the  plaintiff  declared  in  trespass  for 
breaking  and  entering  his  close,  &c.  and  seizing  and  taking  his  gooils  and 
chattels,  to  wit,  100  articles  of  furniture,  and  100  articles  of  wearing  ap- 
parel, without  describing  their  nature  or  quality  ;  and  the  defendant,  beini' 
under  a  judge's  order  to  plead  issuably,  demurred  generally  to  the  whole 
declaration,  and  the  plaintiff  signed  judgment  as  for  want  of  a  plea;  tho 
court  of  Common  Pleas  ordered  it  to  be  set  aside  with  costs,  as  the  demur- 
rer went  to  the  substance  of  the  declaration,  the  goods  taken  having  been 
insufficiently  described  therein. (/)  And  where  the  defendant  was  arlvised 
that  he  had  substantial  ground  of  demurrer,  the  court  of  King's  Bench  set 
aside  the  judgment,  signed  as  for  want  of  a  plea,  upon  terms.(_(7)  By  re- 
joining gratis  is  meant,  rejoining  without  the  common  four-day  rule  to 
rejoin  :(/t)  And,  in  the  Common  Pleas,  the  plaintiff  having  tendered  an 
issue  to  a  plea,  and  demanded  a  rejoinder,  when  the  defendant  was  under 
terms  to  rejoin  gratis,  and  for  want  of  a  rejoinder  signed  judgment,  the 
court  held  the  judgment  regular;  but  set  it  aside  without  costs,  because 
the  plaintiff  might  have  added  the  similiter  hiraself.(i)  Short  notice  of  a 
trial  in  country  causes  must,  in  the  King's  Bench,  be  given  at  least  four 
days  before  the  commission  day,  one  day  exclusive,  and  tho  other  inclu- 
sive :{Jc)  But,  in  the  Common  Pleas,  two  days'  notice  seems  to  be  sufficient 
in  country  causes  ;{l)  as  it  is  also  in  town  causes,  in  both  courts ;  though 
it  is  usual  to  give  as  much  more  as  the  time  will  admit  of.     The  defendant 

{q)  1  Bur.  605. 

(a)  1  .Moore,  430.  (6)  3  Rur.  1788.  9.   1  Chit.  Rep.  711. 

(c)  2  Str.  1185.  Barnes,  168.  2  Blac.  Rep.  923.  3  Wils.  530,  S.  C.  I  Chit.  Rep.  711.  7 
Price,  670. 

(./)  Siiy.  Rep.  80.  7  Durnf.  k  East,  530.  1  East,  411.  Barnes,  271.  2  Blac.  Rep.  923,  2 
Bos.  &  I'ul.44G.    White  \.  Benson,  Yi.bbGQo.  III.  K.  B.   1  Chit.  Rep.  711,  12,  (a). 

(e)  1  Bing.  379.  8  Moore,  427,  S.  C.    5  Dowl,  &  Ryl.  620,  accord. 

(/)  8  Moore,  379. 

{(J)  7  Durnf.  k  East,  530.   1  E.ist,  414,  (a),  S.  C.  (A)  Barnes,  271. 

((•)  3  Bo3.  &  Pul.  443. 

[k)  R.  E.  30  Geo.  III.  K.  B.   3  Durnf.  k  East,  660. 

(/)  Pr.  Reg.  390.  Barnes,  301. 

Vol.  I.— oO 


472  OF  IMPARLANCE,  AND  OF  NOTICE  TO  PLEAD. 

however  is  not  precluded  by  these  terms,  from  demurring  to  the  replica- 
tion, if  there  be  good  cause. (m) 

When  the  defendant  is  under  a  judge's  order  for  time  to  plead,  on  the 
terms  of  pleading  issuably,  and  pleads  a  false  plea  of  judgment  reco- 
vered,(w)  or  other  plea  which  is  not  issuable,  the  plaintiff  may  consider  it 
as  a  mere  nullity,  and  sign  judgment  :(o)  and  where  several  pleas 
[  *47o  ]  are  pleaded,  one  *of  which  is  not  issuable,  it  will  vitiate  all 
others. (a)  So,  where  a  defendant,  when  under  an  order  to  plead 
issuably,  puts  in  a  sham  demurrer  to  some  of  the  counts  in  the  declaration, 
and  pleads  issuably  to  the  rest,  the  plaintiflF  may  consider  the  whole  as  a 
nullity,  and  sign  judgment  as  for  want  of  a  plea.(6)  But  where  it  is 
doubtful  whether  the  plea  be  issuable,  the  better  way,  in  term  time,  is  to 
move  the  court  to  set  it  aside. (c) 

Before  the  plaintifl",  hoAvevcr,  can  sign  judgment,  the  defendant  must 
have  notice  to  plead;  and,  unless  he  be  bound  by  rule  of  court,  or  order 
of  a  judge,  to  plead  by  a  time  therein  limited,  a  rule  to  plead  must  be  en- 
tered in  all  cases,  whether  the  defendant  have  appeared  or  not;  and  when 
he  has  appeared,  there  must  also  in  general  be  a  demand  of  plea. 

When  the  declaration  is  delivered  absolutely,  after  appearance,  a  notice 
to  plead  must  be  given  ;{d)  which  is  usually  indorsed  on  the  declaration, 
otherwise  the  defendant  need  not  plead  thereto,  within  the  regular  time; 
but  if  the  defendant  take  an  imparlance,  for  want  of  such  notice,  then  he 
must  plead  at  the  time  allowed  him  by  such  imparlance. (c)  And  if  the  de- 
claration be  delivered  before  the  essoin  day  of  the  term  next  after  the 
return  of  the  writ,  though  without  a  notice  to  plead,  the  defendant,  we 
have  seen,(/)  if  he  appear  and  accept  the  declaration,  shall  not  have  an 
imparlance  to  the  subsequent  term.  A  notice  to  plead  seems  also  to  be 
necessary,  when  the  declaration  is  filed  or  delivered  do  bene  esse,  or  con- 
ditionally, (^)  though  this  was  formerly  doubted  in  the  Common  Pleas. (/t) 
But  it  is  not  necessary  that  the  notice  to  plead  should  be  indorsed  on,  or 
given  at  the  time  of  delivering  the  declaration  :  Therefore,  where  the 
declaration  in  the  King's  Bench  was  filed  on  the  last  day  of  the  second 
term  after  the  return  of  the  w^rit,  but  the  notice  to  plead  was  only  given 
a  little  before  the  essoin  day  of  the  following  term,  the  court  held  it  to 
be  well  enough,  the  master  certifying  it  to  be  the  practice. (i)  And  where 
the  plaintifl"  having  declared  in  his  own  right,  afterwards  declared  as  exe- 
cutor, without  indorsing  the  declaration  "  bi/  the  bye"  when  delivered,  but 
the  defendant's  attorney  was  told  it  was  by  the  bye,  the  court  of  King's 
Bench,  we  have  seen, (A:)  on  the  opinion  of  the  master,  held  it  to  be  regu- 
lar. In  the  Common  Pleas,  where  a  declaration  Avas  delivered  without  a 
notice  to  plead,  and  some  time  afterwards  a  notice  in  writing  was  given 
to  the  defendant,  Avho  lived  ohowe  forty  miles  from  London,  to  plead  in 

{m)  R.  T.  5  &  6  Geo.  IL  (6),  K.  B.  2  Str.  1185. 

In)  1  Blac.  Rep.  37t;.  2  Wils.  117.  3  Wils.  33.   1  Moore,  431  ;  and  see  2  Chit.  Rep.  292. 
(o)  1  Bur.  59.  Valley  v.  Gardiner,  H.  24  Geo.  IK.  K.  B.  Barnes,  263.  3  Bos.  &  Pul.  395,  C.  P. 
(a)  3  Durnf.  &  East,  305.  (b)  1  East,  411  ;  and  see  Barnes,  314. 

(c)  1  Bur.  59.  2  Blac.  Rep.  724.  2  Durnf.  &  East,  390.  7  Durnf.  &  East,  530.  1  Bos.  &  PuL 
447.  3  Bos.  &  Pul.  395.  7  East,  383.  4  Taunt.  668.  1  Chit.  Rep.  355,  («). 

(d)  R.  T.  5  &  6  Geo.  II.  K.  B.    R.  E.  3  Geo.  II.  C.  P.;  and  see  Append.  Chap.  XVIII.  |  3. 

(e)  Per  Our.  E.  24  Geo.  III.  K.  B.  (/)  Ante,  467. 

Iff)  R.  M.  10  Geo.  II.  reff.  2,  K.  B.  R.  E.  3  Geo.  IL  C.  P.  Barnes,  257,  302.  2  New  Rep.  C.  P. 
223.  Append.  Chap.XVIIL  |  5,  6. 

(h)  Barnes,  226,  7,  310.   1  Sel.  Pr.  2  Ed.  230. 

(i)  3  Bur.  1452.  (A)  Ante,  425. 


OF  THE  RULE  TO  PLEAD,  473 

eiglit  days,  this  was  held  to  be  a  good  declaration  and  notice,  although 
the  notice  was  not  given  at  the  time  of  the  delivery  of,  or  writ- 
ten on  the  back  of  the  *dccluration.(a)     And  in  the  latter  court   [  *474  ] 
it  has  been  holdon,  that  if  a  declaration  be  indorsed  to  plead  in 

" ,"  it  must  be  understood  to  mean  within  the  number  of  days 

allowed  by  the  rules  of  the  court. (A) 

The  rule  to  plead  is  the  order  of  the  court  ;(c)  and  may  be  entered,  on 
a, 2)rncipe,  with  the  clerk  of  the  rules  in  the  King's  Bench,  or  secondaries 
in  the  Common  Pleas,  at  any  time  after  the  delivery,  or  filing  and  notice 
of  the  declaration  in  term  time  ;  or  if  the  declaration  be  delivered,  or 
fded  and  notice  given, /owr  days  exclusive  before  the  end  of  the  term,  the 
rule  to  plead  may  be  entered  at  any  time  during  the  first  four  days  after 
term.  If  the  defendant  obtain  a  judge's  order  for  time  to  plead,  either 
in  the  same  or  till  tlic  next  term,  the  plaintiff  when  the  time  is  expired, 
may  sign  judgment  for  want  of  a  plea,  without  giving  a  rule  to  plead  •,{d) 
or,  if  a  rule  has  been  already  given,  without  giving  a  new  rule.(e)  But, 
in  the  Common  Pleas,  a  summons  for  further  time  to  plead,  not  attended 
by  the  party  taking  it  out,  does  not  waive  the  necessity  of  a  rule  to 
plead. (/)  The  clerk  of  the  rules,  or  secondaries,  will  accept  a  rule  to 
plead  on  the  essoin  day ;  but  such  rule  cannot  be  entered  until  the  first 
day  of  term  :{g)  and  Sunday  is  a  day  within  this  rule,  unless  it  be  the 
last. (A) 

Anciently  there  were  two  rules  given  in  the  King's  Bench,  of /our 
days  each ;  the  first  ad  respondendum^  the  second  aH  respondendum 
pere7nptorie.{{)  These  were  afterwards  converted  into  one  ei(/ht  day 
rule:(2)  but  now,  four  days  only  are  allowed  the  defendant,  in  either 
court,  from  the  time  of  giving  any  rule  to  plead  :(k)  which  four  days 
expire  before,  with,  or  after  the  time  for  pleading.  If  they  expire  be- 
fore, the  plaintiff"  must  wait  till  the  expiration  of  the  time  for  pleading, 
before  he  can  sign  judgment  for  want  of  a  plea :  but  if  they  expire  with 
or  after  that  time,  the  plaintiff,  in  the  King's  Bench,  is  at  liberty  to  sign 
his  judgment,  the  day  after  the  rule  for  pleading  is  out :  the  declaration 
having  been  regularly  delivered  or  filed,  and  the  defendant  or  his  agent 
being  called  upon  for  a  plea.(Z)  In  the  Common  Pleas,  judgment  cannot 
be  signed  for  want  of  a  plea,  till  the  opening  of  the  office  in  the  after- 
noon of  the  next  day  after  the  rule  to  plead, (wj)  or  day  given  by  a  judge's 
order  for  time  to  plead,(w)  has  expired.  But  if  a  rule  to  plead  expire  on 
a,  dies  non  juridicus,  as  on  the  Purification,  kc.  the  defendant  is  bound 
to  plead  on  or  before  that  day;  and  if  he  do  not,  judgment  may 
be  signed  on  the  next  day.(o)  In  the  Exchequer,  the  *rule  to  [  *47o  ] 
plead  is  said  to  be  a,  four  day  rule,  inclusive ;  and  judgment  may 
be  signed,  for  want  of  a  plea,  on  the  day  after  it  expires. (aa) 

{a)  2  Wils.  137.  (i)  2  Bos.  &  PuLSCS. 

(0)  Append.  Chnp.  XVIIL  g  8. 

{d)  R.  T.  5  &  6  Geo.  II.  (i),  K.  B.  Starhk  v.  Wilkes,  M.  1  Geo.  IF.  K.  B.  1  Cromp.  3  Ed. 
162.  4  Barn.  &  Ores.  386.  6  DowL  &  Ryl.  390,  S.  C.  Barnes,  243.  Gas.  Pr.  C.  P.  07,  141.  Pr. 
Reg.  290,  91,  S.  C.  1  II.  Blac.  88.  7  Taunt.  587.  1  Moore,  320,  S.  C. ;  and  see  4  East,  571.  1 
Taunt.  538.  2  Moore,  220. 

{e)  7  Taunt.  587.   1  Moore,  320,  S.  C. 

(/)  3  Bos.  &  Pul.  180.  (g)  Cas.  Pr.  C.  P.  08. 

\h)  2  Salk.  624.    1  8tr.  86.  Rohcrtx  r.  Quickendu>i,},l.  50  Goo.  III.  K.  B.    11  East,  272,  (6). 

(i)  Vidian's  Introd.  II.  2  S.ilk.  517.  (A)  R.  T.  1  Geo.  II.  K.  B.  2  Str.  1192. 

(1)  N.  H.  2  Geo.  II.  3,  K.  B.  (m)  Cas.  Pr.  C.  P.  55. 

{n)  Id.  67.  Pr.  Reg.  287,  S.  C.  (o)  2  U.  Blac.  616.  (aa)  2  Price,  6. 


475 


OF  THE  DEMAND  OF  A  PLEA. 


When  a  rule  to  plead  has  been  once  entered,  and  the  cause  stands  over 
to  another  term,  without  any  further  proceeding,  a  new  rule  to  plead 
should  regularly  be  entered  for  that  term,  to  entitle  the  plaintiff  to  sign 
judgment,  unless  a  judge's  order  has  been  obtained  for  time  to  plead  ;(6) 
for  judgments  ought  in  general  to  be  entered  the  same  term  in  which  rules 
are  given. (c)  But  when  the  declaration  is  amended  in  the  King's  Bench, 
if  a  rule  to  plead  be  entered  the  same  term  the  amendment  is  made, 
though  before  such  amendment,  it  is  sufficient  ;(fZ)  otherwise  a  new  rule 
to  plead  must  be  entered  :(<?)  And  in  the  Common  Pleas,  we  have  seen,(/) 
the  defendant  is  entitled  in  all  cases,  on  amending  the  declaration,  to  a 
new  four  day  rule  to  plead.  When  the  plaintiff  after  giving  a  rule  to 
plead,  has  been  delayed  by  injunction,  he  may  sign  judgment  in  either 
court,  after  the  injunction  is  dissolved,  without  a  new  rule.(f/) 

The  demand  of  plea  is  a  notice  in  writing  from  the  plaintiff's  attorney  ;(A) 
and,  except  when  the  defendant  is  in  custody  of  the  sheriff ^[ii)  and  the  plain- 
tiff has  declared  against  him  as  being  in  that  custody,(M)  or  is  in  custody  of 
the  warden  of  the  Fleet,(ZZ)  or  bound  down  by  a  judge's  order  for  time  to 
plead,(m7?j)  or  the  declaration  has  been  amended,(«n)mustbe  made  in  every 
case  where  the  defendant  has  appeared,(oo)  or  put  in  bail ;  And,  in  the  Com- 
mon Pleas,  a  demand  of  plea  is  necessary,  after  an  appearance,  though  the 
defendant  has  not  taken  the  declaration  out  of  the  office. (j9)  So,  where  a 
declaration  was  delivered  on  the  essoin  day  of  Hilary  term,  and  an  impar- 
lance was  given  to  the  defendant  till  Easter  term,  when  a  rule  to  plead 
was  given,  but  no  demand  of  plea  made,  the  court  of  Common  Pleas  held, 
that  the  plaintiff,  having  signed  judgment  in  Trinity  term  for  want  of  a 
plea,  was  irregular,  and  set  aside  the  proceedings. (g)  In  country  causes, 
the  demand  of  plea  must  be  made,  in  that  court,  on  the  agent  in  town,(r) 
if  there  be  one  ;  or  if  not,  on  the  attorney  in  the  country  :(s)  And  where  the 
defendant  was  beyond  the  seas,  and  his  attorney  dead,  a  rule  was  made 
absolute,  that  a  demand  of  plea  in  the  office  should  be  sufficient ;  upon  affi- 
davit of  service  of  a  rule  to  show  cause  on  one  of  the  defendant's  bail,  and 

that  the  other  was  not  to  be  found. (^) 
[  *476  ]       *In  the  King's  Bench,  a  demand  of  plea  may  be  made  at  the 

time  of  delivering  the  declaration,((i!)  and  indorsed  thereon  :{hh) 
And  where  a  rule  to  plead  has  been  given,  and  demand  of  plea  made,  and 
judgment  is  signed  of  a  subsequent  term,  there  need  not  be  a  fresh  demand 
of  plea  of  that  term,  although  there  should  be  a  new  rule  to  plead. (cc)   But, 

[b)  Ante,  474. 

(c)  Gilb.  K.  B.  318.  1  Maule  &  Sel.  478. 

{d)  2  Salk.  517,  18,  520.  R.  M.  10  Geo.  II.  reg.  2,  {b),  K.  B,  Yates  v.  Edmonds,  T.  35  Geo. 
III.  K.  B. 

(e)  2  Chit.  Rep.  332.  (/)  Ante,  469. 

{g)  2  Bur.  660.  Doug.  71.  Barnes,  238.  Pr.  Reg.  26,  S.  C.  2  Blac.  Rep.  784.  Ante,  461. 

(A)  Append.  Chap.  XVIII.  g  10  ;  and  see  N.  M.  1  Geo.  II.  C.  P.  Pr.  Reg.  280. 

(n)  1  Durnf.  &  East,  591.  6  Durnf.  &  East,  524.  Ante,  347. 

{kk)  2  Barn.  &  Cres.  803. 

{11)  Imp.  C.  P.  7  Ed.  231.  Ante,  359. 

{mm)  R.  T.  5  &  6  Geo.  II.  {b),  K.  B.  4  East,  571.  1  Taunt.  538.  2  Moore,  220 ;  aud  see  4 
Barn.  &  Cres.  386.  6  Dowl.  &  Ryl.  390,  S.  C. 

{nn)  3  Barn.  &  Aid.  137. 

{00)  1  Wils.  134.  1  Bos.  &  Pul.  341.   1  Chit.  Rep.  737,  (a). 

(p)  1  Bos.  &  Pul.  341 ;  but  see  1  Chit.  Rep.  735.  Id.  (a). 

{q)  8  Taunt.  33.  1  Moore,  464,  S.  C.  {r)  Imp.  C.  P.  7  EJ.  231. 

(s)  Pr.  Reg.  281.  {t)  Barnes,  307. 

(a)  6  Durnf.  &  East,  689.  1  Dowl.  &Ryl.  186.  (66)  5  East,  547. 

[cc)  Sweet  v.  John,  H.  55  Geo.  III.  K.  B.  1  Chit.  Rep.  735,  6,  {a). 


OF  THE  DEMAND  OF  A  PLEA.  47G 

in  the  Common  Pleas,  a  demand  of  plea  must  be  made  after  declaration 
delivered,  and  rule  to  plead  given  :  a  demand  of  plea  indorsed  on  the  de- 
claration,((?)  or  made  before  the  rule  to  plead  is  given, (<')  being  deemed 
insuflficient :  And  it  cannot  be  made,  in  either  court,  before  the  defendant 
has  appeared  :(f)  and  after  the  plaintifl"  has  entered  an  appearance,  or 
filed  common  bail  for  him  according  to  the  statute, (//)  or  when  the  defend- 
ant is  in  custody  of  the  8heriflf,{/0  and  the  plaintiff  has  declared  against 
him  as  being  in  that  custody, (/)  or  is  in  custody  of  the  warden, (A-)  or  bound 
down  by  a  judge's  order  for  time  to  plead, (/)  or  the  declaration  has  been 
amended,(wi)  a  demand  of  plea  is  unnecessary.  So,  when  the  defendant 
pleads,  without  taking  the  declaration  out  of  the  ofrice,(/j)  or  puts  in  a 
plea  which  is  considered  as  a  nullity, (o)  as  a  plea  in  abatement  of  a  term 
subsequent  to  the  declaration,  without  an  imparlance,(^?j;)  or  the  plea  of 
non  assuyjipsit  in  an  action  of  debt,{cj<j)  or  nil  debet  in  ass2imp8it,{rr)  it 
operates  in  general  as  a  waiver  of  the  irregularity  in  not  demanding.'  a 
plea,  and  will  enable  the  plaintiff  to  sign  judgment  for  want  of  it.  But 
where  such  a  plea  was  put  in  without  authority,  by  a  new  attorney  for  the 
defendant,  without  any  order  for  changing  his  former  attorney,  the  judg- 
ment which  had  been  signed  as  for  want  of  a  plea,  was  set  asidc.(««)  In 
general,  the  demand  of  a  plea  is  a  waiver  of  the  justification  of  bail  (^^)[a] 
but  where,  after  the  time  for  putting  in  and  justifying  bail  had  expired, 
(one  of  the  bail  having  been  rejected,)  time  was  given  to  add  and  justify 
another  bail,  Avithout  prejudice  to  the  plaintiff,  and  in  the  interval  he 
demanded  a  plea ;  the  court  of  King's  Bench  held,  that  an  attachment 
against  the  sheriff  for  not  bringing  the  body  was  regular,  the  added  bail  not 
having  justified  within  the  time  for  which  indulgence  was  given. (?<) 

*The  plaintiff,  in  the  King's  Bench,  cannot  sign  judgment  for  [  *477  ] 
want  of  a  plea,  till  the  expiration  of  twenty-four  hours  after  it 
has  been  demanded,  whether  the  time  for  pleading  be  or  be  not  expired, 
■when  such  demand  was  made  :{a)  And,  in  that  court,  if  a  plea  be 
demanded  on  Satwdaij,  the  defendant  has  twenty-four  hours  to  plead, 
after  the  demand,  exclusive  of  Sunday. {b)[Tf\    But  judgment  maybe  signed 

(d)  Barnes,  276.  («)  4  Taunt.  51. 

(/)  1  Duruf.  &  East,  C35.  Per  Cur.  E.  44  Geo.  III.  K.  B.  5  Doxv-l.  k  Ryl.  609. 

(g)  II.  T.  1  Geo.  II.  K.  B.  8  Durnf.  &  East,  465.  5  Barn.  &  Ores.  763.  Barnes,  249.  2  Bos. 
&  Pul.  218. 

(A)  1  Durnf.  &  East,  591.  6  Durnf.  &  East,  524.  Ante,  347;  but  see  2  Bos.  &  Pul.  367. 

(i)  2  Barn,  k  Cres.  803.  [k]  Imp.  C.  P.  7  Ed.  231.  Ante,  359. 

(/)  4  Rust,  571.  Taylor  v.  King,  H.  31  Geo.  III.  C.  P.  Imp.  C.  P.  7  Ed.  231.  1  Taunt.  538, 
S.  P.  2  Moore,  220. 

(m)  3  Burn,  k  Aid.  137. 

(n)  1  Chit.  Rep.  735.  Imp.  C.  P.  7  Ed.  420  ;  but  see  1  Bos.  &  Pul.  341.  1  Chit.  Rep.  735. 
(a),  icmb.  contra. 

(o)  1  Chit.  Rep.  730,  (c). 

(/>;))  4  Durnf.  k  East,  520.  2  Smith,  R.  393  ;  but  see  3  Barn,  k  Aid.  259.  1  Chit.  Rep. 
704,  S.C. 

(qq)  6  East,  549.  14  East,  442.  4  Taunt.  164.  1  Chit.  Rep.  716,  in  notis. 

(rr)  Barnes,  257.  (sn)  6  East,  549.  [tt)  Ante,    255. 

(m)  1  Dowl.  k  Ryl.  163  ;  and  see  4  Dowl.  &  Ryl.  834. 

(a)  1  Blac.  Rop.  50.   1  Durnf.  &  East,  454.  4  Durnf.  k  East,  118. 

(b)  4  Durnf.  &  East,  557. 

[a]  a  justification  of  bail  after  plea  pleaded  and  served,  does  not  make  the  plea  good  in 
a  bailable  action,  unless  the  plea  was  served  fie  Imc  mge  and  with  notice ;  a  plea  otlierwise 
made  before  bail  is  perfected  is  a  nullity.  Adams  v.  Mtnton,  6  Cow.  50.  Watennun  v.  Allen, 
1  Id.  60.     Briggs  v.  Rmce,  7  /(/.  508. 

[b]  Accord.  Cock  v.  JJumi,  G  Johns.  R.  325. 


477  OF  MOTIONS  AND  RULES,  ETC. 

at  any  time  after  the  twcntj-four  hours  are  expired,  provided  the  time 
for  pleading  be  then  out ;  and  therefore  if  the  plea  be  demanded  in  the 
morning,  the  plaintiff  is  not  obliged  to  wait  until  the  opening  of  the  office, 
in  the  afternoon  of  the  following  day.(6')  In  the  Common  Picas,  the  rule 
is,  that  after  a  plea  has  been  demanded,  the  defendant  has  in  all  cases  till 
the  opening  of  the  office,  in  the  afternoon  of  the  following  day,  to  plead ; 
and  if  he  do  not  plead  within  that  time,  the  rule  to  plead  being  expired, 
the  plaintiff  may  sign  judgment. (t^) 


[*478]  *CHAPTER    XIX. 

Of  Motions  and  Rules  in  general,  and  Affidavits  in  sujoport  of 
them;  and  the  Practice  of  the  Courts  thereon,  and  hy  Summons 
and  Order,  at  a  Judge's  Chambers. 

As  it  is  frequently  necessary,  in  the  course  of  a  suit,  to  apply  to  the 
court  where  the  action  is  depending,  or  a  judge  of  that  court,  it  may  be 
proper,  before  we  proceed  further,  to  say  somewhat  of  the  manner  of 
doing  it ;  and  of  the  rules  or  orders  of  the  courts,  and  practice  by  sum- 
mons and  order  at  a  judge's  chambers. 

The  usual  modes  of  applying  to  the  court  are  by  motion,  or  petition.  A 
motion  is  an  application  to  the  court,  by  counsel  in  the  King's  Bench,  or  a 
Serjeant  in  the  Common  Pleas,  for  a  rule  or  order;  which  is  either  granted 
or  refused ;  and  if  granted,  is  either  a  rule  absolute  in  the  first  instance,  or 
only  to  shoiv  cause,  or,  as  it  is  commonly  called,  a  rule  nisi,  that  is,  unless 
cause  be  shown  to  the  contrary,  which  is  afterwards,  on  a  subsequent  mo- 
tion, made  absolute  or  discharged.  To  use  the  words  of  an  elegant  writer 
on  the  law  and  constitution  of  England  :{aa)  "  The  application  to  a  court  by 
counsel  is  called  a  motion ;  and  the  order  made  by  a  court  on  any  motion, 
when  drawn  into  form  by  the  officer,  is  called  a  rule."  But,  besides  the 
rules  which  are  moved  for  in  court,  there  are  others  made  out  by  the 
officers  as  a  matter  of  course,  or  drawn  up  on  a  motion  'paper  signed  by  a 
counsel  or  serjeant. 

In  the  King's  Bench,  motions  and  rules  are  either  on  the  crown  side, 
or  on  the  plea  side  of  the  court.  In  the  Common  Pleas  and  Exchequer, 
there  is  no  croivn  side.  (6)  But,  in  any  of  these  courts,  a  rule  for  an 
attachment,  which  is  of  a  criminal  nature,  may  be  moved  for  in  the  fol- 
lowing cases  :  First,  against  the  parties  to  the  suit,  for  disobedience  to  a 
rule  or  order  of  the  court,  by  non-payment  of  costs,  on  the  master's  or 
prothonotary's  alloc  at  ur,{cc)  or  of  money  generally,  or  money  and  costs ; 
or  for  not  producing  deeds  in  his  possession, (^tZ)  &c. :  Secondly,  against 
attorneys,  for  not  delivering  up  deeds,(e)  or  non-payment  of  costs,(e) 
&c. ;   or  for  not  performing  their  undertakings,(/)   or   otherwise   mis- 

(c)  1  Durnf.  &  East,  454. 
{d)  Gas.  Pr.  C.  P.  17,  18,  54. 

{aa)  Wynne,  Eunom.  Dial.  II.  ^  26.  And  for  a  general  account  of  the  practice  on  mo- 
tions in  civil  suits,  see  id.  §  25,  &c. 

(b)  5  Taunt.  503.  [cc)  Post,  Chap.  XL. 

(dd)  Post,  487  ;  and  see  8  Moore,  510,  610.   1  Bing.  410,  464,  S.  C. 

(e)  Ante,  86,  7.  {/)  Ante,  86,  227,  241. 


OF  MOTIONS  AND  RULES,  ETC.  478 

behaving  themselves  :(r/)  Thirtlly,  against  ^officers  of  the  court,  [  *-lTO  ] 
for  extortion, (a)  or  neglect  of  duty  :{a)  Fourthly,  against  inferior 
judjes  and  officers,  for  acting  unjustly,  oppressively,  or  irregularly,  in  the 
execution  of  their  duty  •,{l>h)  or  f(jr  disobeying  tlie  king's  writs,  issuing 
out  of  the  superior  courts,  by  proceeding  in  a  cause,  after  it  has  been  put 
a  stop  to,  or  removed  by  writ  of  prohibition,  cert  lor  arL{cc)  habeas 
corpm,{cc)  supersedeas^  or  error,('it2)  &c. :  Fifthly,  against  sheriffs^  or 
other  persons  iiaving  the  execution  of  writs,  for  not  returning  i\\Qm,{ee) 
or  bringing  into  court  the  body  of  the  defendant, (/^)  &c.,  on  being  served 
witli  a  rule  for  that  purpose  :  Sixthly,  against  gaolers,  &c.,  on  the  Lords' 
act,  for  extortion  or  oppression  :(//.'/)  Seventhly,  against  jurymen,  in  col- 
lateral matters  relating  to  the  discharge  of  their  oflice,  such  as  making 
default  when  summoned ;  refusing  to  be  sworn,  or  to  give  any  verdict ; 
eating  or  drinking,  without  leave  of  the  court,  and  especially  at  the  cost 
of  either  party,  and  other  misbehaviours  or  irregularities  of  a  similar 
kind  :(/i)  but  not  in  the  mere  exercise  of  their  judicial  capacities,  as  by 
giving  a  false  or  erroneous  verdict  :(/i)  Eighthly,  against  witnesseK,  for 
not  attending  on  a  subpa'aa  ;{i)  refusing  to  be  sworn  or  examined,  or 
prevaricating  in  their  evidence  when  sworn  :(/c)  But,  in  the  Common 
Pleas,  it  was  not  formerly  usual  to  grant  an  attachment  against  a  witness, 
for  non-attendance  upon  a  subpoena  ;  and  it  cannot  now  be  had,  unless  a 
clear  case  of  contempt  be  made  out  against  him,  the  party  aggrieved  being 
left  to  his  remedy  by  action :(/)  Ninthly,  against  peers  of  tlie  realm,  or 
members  of  the  house  of  Commons,  for  disobeying  a  subpoena,[m)  or  other 
process  :(n)  but  they  are  not  liable  to  be  attached,  for  non-payment  of 
money,  pursuant  to  an  award  :(o)  Lastly,  against  other  persons,  for  con- 
tempts committed  in  the  face  of  the  court,  not  only  by  an  actual  broach 
of  the  peace,  or  rude  and  contumelious  behaviour,  but  also  for  any  other 
heinous  misdemeanour,  as  by  a  party's  giving  false,  trifling,  and  contra- 
dictory answers,  upon  an  examination  in  court,  concerning  his  ability  to 
be  bail  for  another,  in  an  action  depending  in  court  ;(p)  or  for  contempts 
committed  out  of  court ;  as  for  a  rescue,(r^)  or  contemptuous  words  spoken 
of  the  court,  or  its  process  ;(r)  or  for  using  undue  means  to  execute 
process  ;(»)  or  not  performing  an  award, (<)  (&c. 

If  the  contempt  be  committed  in  the  face  of  the  court,  the  ofTonder  may 
be  instantly  apprehended  and  imprisoned,  at  the  discretion  of  the  judges, 
without  any  further  proof  or  examination  :(tt)  but  otherwise  it  is 
usual  to  *apply  to  the  court,  on  an  affidavit  of  the  circumstances,  [  •480  ] 
for  a  rule  for  an  attachment ;  which  is  either  absolute  in  the  first 

(ff)  Ante,  86,  88.  (a)  Ante,  68,  232. 

{lib)  4  Blac.  Com.  284.  2  Hawk.  P.  C.  Chap.  XXII.  §  25,  &c. 
(cc)  Ante,  404, 415.  ((/</)  J'osf,  Chap.  XLIV. 

(ee)  Ante,301,  8.  5  Dowl.  &  Ryl.  614.  (/}  Ante,  311,  12,  314. 

((/ff)  Ante,  232. 

(/i)  4  Hlac.  Com.  284.  2  Hawk.  P.  C.  Chap.  XXII.  §  13,  &c. 
(r)  I'osf,  Chap.  XXXV.  (h)  4  Blac.  Com.  284, 

(l)  1  Barnes,  33,35,497.  Pr.  Reg.  435.  1  H.  Blac.  49.  5  Taunt.  260.  6  Tauut.  9.   1  Marsh. 
410,  S.C. 

(to)  Ante,  192.  (n)  1  Bur.  63. 

(o)  Ante,  192,  Post,  Chap.  XXXVI. 

(p)  Cro.  Car.  146.  1  Chit.  Rep.  116  ;  and  sec  5  Tannt.  776.  Ante,  274, 

(q)  Ante,  236,  7.  (r)  Ante,  169,  70. 

(s)  2  Ken.  372.  {t)  Post,  Chap.  XXXVI. 

(u)  4  Blac.  Com.  286. 


480  or  MOTIONS  AND  RULES,  ETC. 

instance,  or  only  to  show  cause.  The  rule  for  an  attachment,  in  the 
King's  Bench,  for  non-payment  of  costs,  pursuant  to  the  master's  allo- 
catur, is  absolute  in  the  first  instance,  although  four  terms  have  elapsed 
since  the  taxation, (a)  unless  it  be  for  non-payment  of  costs  pursuant  to 
an  award  '.[h)  But  where  it  is  for  the  non-payment  of  money  generally,  or 
of  money  and  costs,  it  is  only  to  show  cause  :(6')  And,  if  a  party  obtain  a 
rule  for  setting  aside  judgment  and  execution,  on  condition  of  his  paying 
costs,  the  court  will  not  grant  an  attachment  in  the  first  instance,  for 
non-payment  of  i]\em.{d)  In  this  court,  as  well  as  in  the  Common  Pleas, 
the  rule  for  an  attachment  against  the  sheriff,  for  not  returning  the  writ, 
or  bringing  in  the  body,  is  absolute  in  the  first  instance ;  and  may  be 
moved  for  the  last  day  of  tcrm.(f)  So,  where  contemptuous  words  are 
spoken  of  the  eou7't,  the  attachment  issues  in  the  first  instance  ;  but  where 
they  are  spoken  of  its  process,  the  rule  is  only  to  show  cause.(/)  In  all 
other  cases,  the  rule  for  an  attachment  is  a  rule  nisi,  in  the  King's  Bench. 
And  where  a  matter  has  been  referred  to  the  master,  the  court,  on  showing 
cause  against  an  attachment,  will  not  go  into  the  accounts  which  were  the 
subject  of  the  reference ;  the  master's  allocatur  being  in  the  nature  of  a 
judgment,  and  the  attachment  like  a  writ  of  execution  :{g)  and  besides, 
the  party,  on  going  before  the  master,  enters  into  an  undertaking  to  pay 
such  sum  as  he  shall  find  to  be  due.(A)  An  affidavit  to  support  a  rule  for 
an  attachment,  for  not  paying  money  pursuant  to  the  master's  allocatur, 
must  show"  that  at  the  time  of  serving  the  copy,  the  original  was  shown  to 
the  defendant.(2')  In  the  Common  Pleas,  all  rules  for  attachments  are 
rules  nisi,  except  against  the  sheriff,  for  not  returning  the  writ,  or 
bringing  in  the  body,  or  for  non-payment  of  costs  on  the  prothonotary's 
allocatur,[k)  which  are  absolute  in  the  first  instance.  In  the  Exchequer, 
as  in  the  King's  Bench,  the  rule  for  an  attachment  for  non-payment 
of  costs,  on  the  master's  allocatur,  is  absolute  in  the  first  instance, 
unless  it  be  for  non-payment  of  costs  pursuant  to  an  award  ',{1)  And 
though,  in  other  cases,  there  should  in  general  be  a  rule  to  show  cause, 
yet  where  an  attorney  had  been  ordered,  by  a  former  rule,  to  pay  a  sum  of 
money  to  his  client,  with  the  costs  of  the  application,  the  court  granted  a 
rule  for  an  attachment  against  him,  for  non-payment  of  them,  absolute  in 
the  first  instance. (w) 

Motions  and  affidavits  for  attachments  in  civil  suits,  in  the  King's  Bench, 
are  proceedings  on  the  plea  side  of  the  court,  until  the  attachments  are 

granted,  and  are  to  be  entitled  with  the  names  of  the  parties  ;(w) 
[  *481  ]  but  as  soon  *as  the  attachments  are  granted,  the  proceedings  are 

on  the  croum  side,  and  from  that  time  the  king  is  to  be  named  as 
the  prosecutor  :(aa)  And  motions  and  affidavits  for  attachments  are  entitled 

(a)  1  Chit.  Rep.  723. 

{b)  Thomson  v.  Billingsley,  T.  37  Geo.  III.  K.  B.  2  Chit.  Rep.  57  ;  and  see  2  Blac.  Rep. 
892.  1  Price,  341. 

(c)  Per  Buller,  Just.  M.  24  Geo.  III.  K.  B.  Append.  Chap.  XXXVI.  §  23. 

\d]  2  Chit.  Rep.  158.  (e)  1  Bur.  651.  5  Bur.  2686. 

(/)  Ante,  1G9,  70.  (r/j  1  Chit.  Rep.  723. 

(A)  1  Ken.  375.    Per  Cur.  M.  45  Geo.  III.  K.  B. 

(i)  7  Dowl.  &  Ryl.  612. 

[k)  1  Bos.  &  Pul.  477.  Imp.  C.  P.  6  Ed.  614.  Append.  Chap.  XL.  g  9;  but  see  2  Blac. 
Rep.  892. 

(/)  Forrest,  80.  1  Price,  341,  2. 

(w)  1  Price,  341 ;  and  see  9  Price,  384. 

(«)  3  Durnf.  &  East,  253.  7  Durnl^  &  East,  439,  528.   12  East,  165. 

{aa)  1  Chit.  Rep.  727,  (a). 


OF  MOTIONS  AND  RULES,  ETC.  481 

in  like  manner,  in  the  Common  Plea9,(J)  and  Exchequer.  A  rule  Jiisi  for 
an  attachment  cannot  be  moved  for  the  last  day  of  term;(c)  nor  can  it,  ■we 
have  seen,  be  served  on  a  ASu7idai/.{d) 

The  attachment  is  a  criminal  process,  directed  to  the  sheriff,  command- 
ing him  to  attach  the  party,  so  that  he  have  him  before  the  king,  or  his 
justices,  at  We8t)ninstcr,  on  a  certain  day,  to  answer  "of  and  concerning 
those  things  Avhich  shall  there,  on  his  majesty's  behalf,  be  objected  against 
him."((')  The  party  being  taken  on  this  writ,  cither  remains  in  custody, 
or  puts  in  bail,  before  the  court(/)  or  a  judge,  (for  it  has  been  doubted 
whether  he  is  bailable  by  the  sheriff,)(//)  to  answer  interrogatories,  and  to 
appear  from  day  to  day,  till  tlie  court  shall  determine  concerning  the  mat- 
ters objected  against  him:(/i)  And  where  the  coroner  had  roturncd  cepi 
corpora  to  writs  of  attachment  against  the  shcrifls  of  JJiddlescx,  the  court 
of  King's  Bench,  on  the  last  day  of  term,  granted  writs  of  habeas  corpora, 
without  an  affidavit,  to  bring  up  the  bodies  of  the  sheriffs,  before  one  of 
the  judges  at  chambers,  to  answer  to  such  matters  as  should  bo  there  al- 
leged against  them.(/)  An  attachment  however,  for  non-payment  of  money, 
is  in  the  nature  of  mcane  process:  And  where  the  party  had  been  taken, 
and  permitted  to  go  at  large,  and  returned  again  into  custody,  and  con- 
tinued in  custody  at  the  return  of  the  writ,  it  was  holden  that  the  sheriff 
was  not  liable  to  an  action  for  an  escape. (A:) 

When  the  party  has  been  taken  upon  the  attachment,  the  court,  upon 
motion  by  his  counsel,  \i\\\  make  a  rule,  that  unless  his  adversary  exhibit 
interrogatories  against  him  in  four  days,  which  must  be  in  term  time,(/)  he 
shall  be  discharged.  These  interrogatories  must  bo  signed  by  counsel(?«) 
or  a  sergeant,  and  filed,  in  the  King's  Bench,  with  the  master  of  the  crown 
office,  who  is  to  examine  the  party  thereon,  mfour  days  after  the  interro- 
gatories are  brought  in ;(??)  but,  in  the  Common  Pleas,  they  are  filed  with 
one  of  the  secondaries, (o)  who  examines  him,  and  afterw^ards  makes  copies 
of  the  depositions  for  each  party:  And  if  the  master,  or  prothonotaries 
(to  whom  the  matter  is  generally  referred  in  the  Common  Pleas,(/))  report 
that  he  is  in  contempt,  the  court  will  commit  him  to  the  King's  Bench,  or 
Fleet  prison ;  but  if  the  report  be  in  his  favour,  they  will  order 
him  to  be  *discharged,  or  his  recognizance  to  be  vacated. («)  [  *482  ] 
When  a  plaintiff  is  brought  in  on  an  attachment  for  a  rescue,  in 
the  King's  Bench,  it  is  the  practice  of  the  court  to  put  interrogatories  to 
him,  though  he  do  not  deny  the  charge  in  the  affidavits,  unless  the  prose- 
cutor waive  putting  them. (66)  And,  by  a  rule  of  that  court,(cc')  "  if  judg- 
ment be  not  given  the  same  terra,  the  name  of  the  cause  shall  be  inserted 

(i)  2  Bo3.  &  Pul.  517,  ((7). 

(c)  3  Smitli,  R.  118.  {d)  8  Duruf.  &  East,  86.   Ante,  218. 

(e)  Append.  Chap.  III.  ?  19. 

(/)  See  Biirnes,  77  ;  where  the  court  of  Common  Plens  refused  to  bail  an  attorney,  who 
had  been  conuniited  for  a  crime  of  a  heinous  nature,  in  the  first  instance. 

{g)  Ante,  222,  3.  (/i)  Imp.  C.  1'.  7  Ed.  552. 

(i)  1  Chit.  Rep.  249  ;  and  see  4  Dowl.  &  Ryl.  393.  Aitf,  314. 

(k)  2  Bum.  &  Aid.  56.  (/)  Comb.  8. 

(m)  R.  .M.  34  Geo.  II.  K.  B.  5  Durnf.  &  East,  474. 

(n)  Lil.  Pr.  R.  Reg.  73. 

(o)  2  Blac.  Rep.  1110.  And  for  the  form  of  interrogatories  in  this  court,  see  Append. 
Chap.  III.  I  20. 

{p)  Imp.  C.  P.  7  Ed.  552,  3.  {a)  3  Bur.  1257. 

(bb)  Ante,  237.  And  see  further,  as  to  interrogatories  exhibited  ia  cases  of  contempts, 
Willis  on  Iiiterro(jatorie.i,  28,  9. 

{cc)  R.  II.  34  Geo.  111.  K.B.  5  Durnf.  &  East,  547,  723. 


482  OF  MOTIONS  AND  RULES,  ETC. 

in  tlic  list  of  motions,  appointed  to  come  on  peremptorily  in  the  ensuing 
term,  in  order  that  the  court  may  be  informed  what  shall  have  been  done 
in  prosecution  of  the  attachment." 

If  the  party  neglect  to  appear  before  the  master  or  secondary,  to  be  ex- 
amined, or  to  attend  the  court  when  he  is  directed  to  come,  the  court  will 
order  his  recognizance  to  be  estreated :  and  if  he  confess  anything  mate- 
rial in  his  depositions,  there  is  no  occasion  for  witnesses,  but  the  prosecu- 
tor may  move  on  his  confession  :(tZ)  If  he  deny  part  of  the  contempts  only, 
and  confess  other  part,  he  shall  not  be  discharged  as  to  those  denied,  but 
the  truth  of  them  shall  be  examined,  and  such  punishment  inflicted  as  upon 
the  whole  shall  appear  reasonable ;  and  if  his  answer  be  evasive  as  to  any 
material  part,  he  shall  be  punished  in  the  same  manner  as  if  he  had  con- 
fessed it.  The  report  of  the  master  of  the  crown  office,  that  the  defend- 
ant and  his  attorney  are  in  contempt,  for  not  performing  an  award,  &c.  is 
to  be  taken  as  a  conviction;  and  on  their  being  brought  up  for  judgment, 
the  court  will  not  receive  affidavits  in  denial  of  the  contempt,  but  only  in 
mitigation  of  punishment. (e)  But,  in  the  Common  Pleas,  the  prothono- 
tary's  report  is  not  deemed  conclusive,  against  parties  who  have  been  put 
to  answer  interrogatories  before  him ;  but  they  may  except  to  the  report, 
on  any  material  point :(/)  And  where,  after  making  his  report  against  the 
parties,  the  prothonotary  was  directed  to  inspect  an  account  book  belong- 
ing to  one  of  them,  which  tended  to  support  the  answers  given  by  the 
parties,  but  had  been  accidentally  omitted  in  the  first  instance,  the  prose- 
cutor was  not  allowed,  on  his  own  application,  to  produce  before  the  pro- 
thonotary, the  clerk  who  had  made  the  entries  in  the  book.(/) 

Motions  and  rules  on  the  plea  side  of  the  court  of  King's  Bench,  and  in 
the  Common  Pleas,  are  common  or  special.  Common  rules  are  first,  such 
as  are  given  by  the  master,  filacer,  clerk  of  the  papers,  or  clerk  of  the 
errors,  in  the  King's  Bench  ;  or  by  the  protJionotaries,  filacers,  or  clerk  of 
the  errors,  in  the  Common  Pleas :  Secondly,  such  as  are  entered  with  the 
clerk  of  the  rules  in  the  King's  Bench,  or  secondaries  in  the  Common 
Pleas,  on  a  prsecipe  or  note  of  instructions,  made  out  by  the  attorneys  who 
apply  for  them ;  and  are  not  founded  on  any  motion  in  court,  either  real  or 
supposed :  Thirdly,  such  as  were  anciently  moved  for  by  the  at- 
[  *483  ]  torneys  *at  side-bar,  in  the  King's  Bench ;  or,  in  the  Common 
Pleas,  at  side-bar  on  the  first  day  of  term,  and  in  the  treasury 
chamber  on  other  days ;  and  are  thence  called  side-bar  or  treasury  rules:(aa) 
Fourthly,  such  as  are  drawn  up  by  the  clerk  of  the  7'ules  in  the  King's 
Bench,  or  secondaries  in  the  Common  Pleas,  without  being  moved  for  in 
court,  on  producing  a  motion  paper  signed  by  a  counsel  or  serjeant. 

In  the  King's  Bench,  rules  given  by  the  master  (which  are  called  onas- 
ters  rules,)  are  to  declare,(6)  or  plead  in  bar,  in  replevin;  and  in  ordi- 
nary cases,  to  reply,(c)  rejoin,  surrejoin,  rebut,  surrebut,  or  join  in  demur- 
rer •,[dd)  to  enter  the  issue  ',{ee)  for  the  defendant  to  produce  the  record  ;(_^) 

(fZ)  Imp.  C.  P.  7  Ed.  553.  (e)  2  Chit.  Rep.  57. 

(/)  1  Bing.  272.  8  Moore,  214,  S.  C. ;  and  see  id.  322.  And  see  further,  as  to  attach- 
ments for  contempts,  and  the  proceedings  thereon,  2  Hawk.  P.  C.  Chap.  22,  §  1.  Bac.  Abr. 
til.  Attachment  4  Blac.  Com.  283,  &c.  Barnes,  258.  Bingham  on  Judgments,  kc,  277,  &c. 

{aa)  Sty.  Pr.  Reg.  575,  Ed.  1707. 

(h)  Append.  Chap.  XLV.  §  54. 

(c)  Post,  Chap.  XXVIII.  Append.  Chap.  XXVIII.  f  1.  (dd)  Post,  Chap.  XXIX. 

(ee)  Post,  Chap.  XXX.  Append.  Chap.  XXX.  §  40. 

(/)  Post,  Chap.  XXXII. 


OF  MOTIONS  AND  RULES,  ETC.  4S3 

for  a  trial  hy  proviso ;(g)  or  to  return  a  -writ  of  certiorari  in  error  :(/() 
by  the  Jllacer,  to  appear  to  n  pone  or,  recordari,{i)  <fcc. ;  by  the  clerk  of 
the  papers,  to  return  the  paper  book  ;(/:)  or,  by  the  clerk  of  the  errors, 
for  better  bail  in  crror,(Z)  to  certify  the  recortl,(/)  or  assign  errors. (/)  All 
master's  rules  in  the  King's  Bench,  are  entered  with  tiie  clerk  of  the 
rules,  and  expire  in /ojfr  clays  after  service.  In  the  Common  Tleas,  all 
rules  are  given  by  the  secondaries,  except  rules  to  appear  in  scire  facias, 
which  are  given  by  i\\Q  prothonotaries ;{rii)  rules  to  appear  and  declare  in 
replevin,  and  to  bring  in  the  body,  which  are  given  by  i\\ii  jUaeers ;{n)  and 
rules  for  better  bail  in  error,  or  to  certify  the  record,  which  are  given  by 
the  clerk  of  the  errors.(o) 

Common  rules  entered,  on  a  praecipe,  with  the  clerk  of  the  rules  in  the 
King's  Bench,  are  to  plead,  in  ordinary  cases, (/;)  or  avow,  in  replevin  ;{q) 
or  for  judgment  on  2)osteaH,[r)  or  in(iuisitions,(«)  or  in  scire  facias.it)  In 
the  Common  IMeas,  the  rules  so  entered,  with  the  secondaries,  are  to  de- 
clare,(if)  (except  in  replevin,)  to  plead, (x-)  reply,(?y)  rejoin,  surrejoin,  rebut, 
surrebut,  or  join  in  demurrer ;  to  avow,  or  plead  in  bar,  in  replevin :  and 
for  attorneys  and  officers  of  the  court  to  appear  and  plead  to  bills  filed 
against  them. (2)  These  rules  are  not  served  on  the  opposite 
party ;  but,  in  the  Common  Pleas,  a  demand  in  writing  must  be  [  *4S4  ] 
made,  before  judgment  can  be  signed  for  non-compliance  with 
them. 

Side-bar  rules,  in  the  King's  Bench,  are  for  the  sheriflf  to  return  the 
■writ,(rt)  or  bring  in  the  body  ;(W)  for  the  marshal  to  acknowledge  the 
defendant  in  his  custody  ;(cf)  for  time,  or  further  time,  to  declare  ;((7c7)  to 
discontinue  the  action,  upon  payment  of  costs  ;{ee)  to  be  present  at  tax- 
ing costs  :{ff)  or  for  a  scire  facias  to  revive  a  judgment  above  seven,  and 
under  ^e^i  years  o\d.{(/g)  In  the  Common  Pleas,  side-bar  or  treasury  rules 
are,  in  addition'  to  those  enumerated  in  the  King's  Bench,  to  take  a  bill 
against  an  attorney  off  the  file  ;  to  bring  money  into  court,  if  under 
five  pounds  ;(7J/)  to  enter  the  issue  ;(//)  for  costs,  for  not  proceeding  to  trial 
or  inquiry,  pursuant  to  notice  ;(/i;/i)  for  leave  to  enter  up  judgment  on  a 
Avarrant  of  attorney,  above  one  and  under  toi  years  old;(7^)  to  return  a 
writ  of  false  judgment,(wim)  or  assign  errors  thereon  ;(m;n)  and  the  common 

(ff)  Post,  Chap.  XXXIII.  Append.  Chap.  XXXIII.  ^  13. 

(h)  Post,  Chap.  XLIV.   Append.  Chaj).  XLIV.  g  G7.  (()  Ante,  416,  17. 

(/■•)  Post,  Chap.  XXX.  Append.  Chap.  XXX.  §  37. 

(/)  Post,  Chap.  XLIV.  Append.  Chap.  XLIV.  §  29,39,  4G. 

Im)  Post,  Chap.  XLIII. 

(n)  Ante,  50,  310,  41 G,  17.  It  should  be  remembered,  however,  that  the  rule  to  brinp  in 
the  body,  though  given  in  the  first  instance  by  the  Jilncer,  who  issued  the  process,  is  after- 
wards drawn  up  by  the  secondaries,  and  served. 

(o)  J'ost,  Chap.  XLIV.   Append.  Chap.  XLIV.  §  29,  39.         (p)  Ante,  473,  &c. 

(q)  Ante,  418.  (r)  Post,  Chap.  XXXVIII. 

(..)  Post,  Chap.  XXII.  XXXVIII.  Append.  Chap.  XXII.  §  70.  , 

(/)  Post,  Chap.  XLIIL  Append.  Chap.  XLIII.  ^  128. 

(m)  Ante,  458.  (x)  Ante,  474. 

(v)  Post,  Chap.  XXVIII.  (z)  Ante,  323. 

(a)  Ante,  306,  7.  (66)  Ante,  309,  10, 

(cc)  Ante,  363,  4.  (dd)  Ante,  423,  4. 

(ee)  Post,  Chap.  XXVIIL  Append.  Chap.  XXVIIL  11,8. 

iff)  ^""'t  Chap.  XL.  Append.  Chap.  XL.  §  5,  6. 

(fffj)  Post,  48.''),  (m),  Chap.  XLIH.    Append.'  Chap.  XLIII.  ?  59. 

(hh)  Post,  Chap.  XXV.  (fV)  Post,  Ch^p.  XXX.  Append.  Chap.  XXX.  3  42. 

(kk)  Post,  Chap.  XXX IIL  (//)  Post,  485,  6,  (y),  Chap.  XXL 

{mm)  Post,  Chap.  XLIV.   Append.  Chap.  XLIV.  §  152,  15'5. 


484  OF  MOTIONS  AND  RULES,  ETC. 

consent  rule  in  cjectment.[n)  Side-har  or  treasury  rules  may  be  had  as  a 
matter  of  course,  by  applying  for  them  at  the  office  of  the  clerk  of  the 
rules  in  the  King's  Bench,  or  secondaries  in  the  Common  Pleas.  The  last 
day  of  term  is  said  not  to  be  a  day  for  side-har  rules  in  the  former  court; 
but  if  the  party  was  not  entitled  to  such  a  rule  before,  he  may  take  it  out 
on  the  last  day  of  term,  or  in  vacation,  dated  as  of  the  last  day  but  one. 
A  rule,  however,  calling  on  the  sheriff  to  return  a  writ,  isssued  in  vaca- 
tion, though  ^<3siet^  in  term  time,  is  irregular;  and  an  attachment  grounded 
upon  it  Avill  be  set  aside  by  the  court  on  motion. (o) 

Commoyi  rules  drawn  up  by  the  clerk  of  the  rules  in  the  King's  Bench, 
on  producing  a  motion  paper  signed  by  counsel,  are  to  declare  peremptorily, 
after  several  rules  for  time  to  declare  ;(2->)  for  the  master,  in  vacation^  to 
compute  principal  and  interest  on  bills  of  exchange,  or  promissory  notes, (5) 
&c. ;  to  have  a  good  jury  on  the  execution  of  an  inquiry,(5')  to  change  the 
venue,(r)  or  bring  it  back  to  the  common  undertaking  ;(r)  to  bring  money 
into  court  ;(s)  to  plead  several  matters,(^)  or  make  several  avowries  or 

cognizances  ',[t)  for  the  defendant  to  abide  by  his  plea  \{u)  for  a 
[  *485  ]   ^concilium  on  demurrer, (a)  special  verdict, (6)  or  writ  of  error  ;(e) 

for  costs,  for  not  proceeding  to  trial  or  inquiry,  pursuant  to  no- 
tice ;(c^)  for  a  special  jury,(e)  or  view;(/)  rules  by  consent^  as  to  examine 
witnesses  upon  interrogatories,(^)  to  refer  causes  to  arbitrarion,(/i/t)  or  to  en- 
large the  time  for  making  an  award  ;(^'^)  to  make  a  judge's  order,(Z:Z:)  or  order 
of  nisi  jpr ills, ill)  a  rule  of  court ;  or  for  a  scire  facias  to  revive  a  judgment, 
above  ten  and  un([Qr  fifteen  years  old.(??im)  In  the  Common  Pleas,  common 
rules  drawn  up  by  the  secondaries,  on  producing  a  motion  paper  signed 
by  a  Serjeant,  are  for  the  prothonotaries,  in  vacation^  to  compute  principal 
and  interest  on  bills  of  exchange,  or  promissory  notes,  &c. ;  for  bringing 
money  into  court,  if  it  exceed  ^ye  pounds  ;(?iw)  to  plead  several  matters,  in 

[n)  Append.  Chap.  XLVI.  §  64,  &c.  (0)  1  Durnf.  &  East,  552. 

Ip)  Ante,  424.  [q)  Post,  Chap.  XXII. 

\r)  Post,  Chap.  XXIV.  Append.  Chap.  XXIV.  §  2,  3,  4. 
(s)  Post,  Chap.  XXV.  Append.  Chap.  XXV.  |  1. 
(0  Post,  Chap.  XXVIJ.  Append.  Chap.  XXVII.  |  11. 

[u]  Id.  ^  14.  This  rule,  however,  is  unnecessary,  in  the  Common  Pleas.  Post,  Chap. 
XXVII. 

(a)  Post,  Chap.  XXXI.  Append.  Chap.  XXXI.  ^  1. 

(b)  Post,  Chap.  XXXVII.  (c)  Post,  Chap.  XLIV. 

(d)  Post,  Chap.  XXXIII.  Append.  Chap.  XXXIII.  ^  12. 

(e)  Post,  Chap.  XXXIV.  Append.  Chap.  XXXIV.  g  24. 

{/)  Post,  Chap.  XXXV.  Append.  Chap.  XXXV.  §  30,  31.  In  the  King's  Bench,  the  rule 
for  a  view  in  trespass,  is  drawn  up  on  a  motion  paper  signed  by  counsel :  but  in  other  ac- 
tions, it  is  moved  for  in  court;  and  in  some  cases  is  only  a  rule  to  show  cause.  In  the 
Common  Pleas,  it  is  said  that  a  rule  for  a  view  is  never  granted,  without  an  affidavit,  in 
any  case,  except  an  action  of  waste.  Barnes,  467.  And  for  the  form  of  the  rule,  see  Ap- 
pend. Chap.  XXXIV.  I  33. 

(ff)  Post,  Chap.  XXXV.  Append.  Chap.  XXXV.  ^  12.  The  rule  for  examining  witnesses 
upon  interrogatories^  which  can  only  be  had  by  consent,  is  seldom  moved  for  directly;  but 
is  commonly  incident  to,  and  arises  out  of  some  other  motion,  as  to  put  off  the  trial,  or  for 
judgment  as  in  case  of  a  nonsuit,  &c. 

(hh)  Post,  Chap.  XXXVI.  Append.  Chap.  XXXVI.  §  1. 

(h)  Post,  Chap.  XXXVI.  Append.  Chap.  XXXVI.  |  11. 

(H-)  Post,  511.  (11)  Post,  Chap.  XXXVI. 

(nun)  The  rule  for  this  purpose,  we  have  seen,  is  sometimes  only  a  side-bar  or  treasury 
rule,  as  where  the  judgment  is  above  seven,  and  under  ten  years  old.  Ante,  484.  If  it  be 
above  ten  and  under  fifteen  years  old,  the  rule,  as  stated  in  the  text,  is  absolute  in  the  first 
instance,  and  may  be  drawn  up  on  a  motion  paper  signed  by  counsel ;  but  if  the  judgment 
be  above  Ji/ieen  years  old,  there  must  be  a  rule  to  show  cause.     Post,  Chap.  XLIII . 

{nn)  Post,  Chap.  XXV.  Append.  Chap.  XXV.  §  2. 


OF  MOTIONS  AND  RULES,  ETC.  485 

certain  cases  which  will  be  mentioned  in  a  subsequent  chapter  ;{o)  for  a 
concilium  on  demurrer, (/>)  special  verdict,!'/)  or  writ  of  error  ;(r)  or  for  a 
special  jury.!,**)  Of  these,  as  well  as  of  tlie  side-bar  or  treasury  rules, 
copies  should  be  duly  served. 

All  rules  moved  in  court,  are  denominated  special  rules ;  and  they  are 
cither  al»<<>lute  in  the  first  instance, (^)  or  only  ni8i,{u)  to  show  cause. 
These  ruk'S  may  be  considered,  as  they  arise,  and  succeed  one  another,  in 
the  course  of  the  suit.  In  the  King's  Jiench,  special  rules  absolute  in  the 
first  instance,  are  for  a  certiorari,  to  remove  the  record  of  a  judgment 
from  an  inferior  court,(r)  or  transcript  of  a  record  from  the  courts  in 
Wales,  or  connixes  palatine  ;{x)  to  enter  up  judgment  in  term  time,  on  a 
warrant  of  attorney,  above  ten  and  under  tidenty  years  old  ;(/y) 
for  the  copyhold  tenants  *of  a  manor  to  inspect  and  take  copies  [  *-48(3  ] 
of  court  rolls  ;(a)  for  a  mandamus,  to  examine  witnesses  in 
India,  on  statute  13  Geo.  III.  c.  63,  §  44,(i)  or  for  the  allowance  of  a 
writ  of  error  coram  nobis.{c)  In  the  Common  Pleas,  they  are  for  leave  to 
enter  up  judgment  on  a  warrant  of  attorney,  above  ten  and  under  twenty 
years  old;((7)  to  have  a  good  jury,  on  the  execution  of  an  in(|uiry  ;(<?)  for 
judgment  for  the  plaintiff,  on  nul  tiel  record ;{f)  for  a  view;(^)  to  make 
a  judge's  ordcr,(//)  or  order  of  nisi  prius,[i)  a  rule  of  court;  or  for  a  scire 
facias  on  a  judgment,  above  ten  and  under  tiventy  years  old  '.{k)  and,  in 
both  courts,  to  increase  issues  on  writs  of  distringas,  against  persons 
having  privilege  of  parliament ;(/)  for  a  distringas,  on  the  statute  7  &  8 
Geo.  IV.  c.  71,  §  5,  where  the  defendant  cannot  be  personally  served  with 
a  summons  or  attachment,  by  original ;{in)  for  the  allowance  of  baU  ;{nn) 
for  leave  to  compound  penal  actions  ;(t>o)  for  judgment  on  demurrer,(jt)/j) 
or  writ  of  error  ',{qq)  that  the  verdict  bo  entered  for,  or  postea  delivered 
to  the  prevailing  party,  on  a  special  verdict,(rr)  or  special  case  ',{rr)  or  for 
a  suggestion  on  the  Welch  judicature  act,  to  entitle  the  defendant  to  a 
judgment  of  nonsuit  :{ss)   And,  after  a  rule  of  reference  to  the  master  or 

(o)  Poit,  Chap.  XXVir. 

{p)  Post,  Chap.  XXXI.  {q)  Posf,  Chap.  XXXVII. 

(r)  Post,  Chap.  XLI\'.  (s)  Post,  Chap.  XXXIV. 

(t)  Append.  Chap.  XIX.  ^  12.  (u)  Id.  ^  13,  14. 

(z)  Ante,  401,  2,  3  ;  405,  G,  7.     Post,  Chap.  XLIV.  Append.  Chap.  XVI.  §  11. 

(i/)  Post,  Chap.  XXI.  la  the  King's  Bench  the  rule  is  absolute  in  the  first  inst.incc,  un- 
less the  warrant  of  attorney  be  above  twenty  years  old,  and  then  it  is  a  rule  ni.-ii.  1  Chit. 
Rep.  G18,  in  notis.  2  Harn.  &  Cres.  555.  4  Dowl.  &  Ryl.  5,  S.  C.  In  the  Common  Pleas,  if 
the  warant  of  attorney  be  above  a  year  old,  leave  to  enter  judgment  ma}'  be  given  by  a 
side-bar  or  treamnj  rule;  ante,  484;  but  if  the  warrant  be  above  ten  years  old,  the  court 
must  be  moved  for  leave  to  enter  judgment.  If  the  warrant  be  under  twenti/  years  old,  the 
rule  in  that  court  is  absolute  in  the  first  instance  ;  but  if  it  be  above  twenty  years  old,  it  is 
a  rule  to  show  cause.  Barnes,  47.  Cas.  Pr.  C.  P.  140  ;  and  see  Append.  Chap.  XIJII.  §  00. 

(a)  I'ost,  Chap.  XXIII.  If  the  rule  be  moved  for  on  behalf  of  a  copyhold  tenant,  il  is  ab- 
solute in  the  first  instance,  in  the  King's  Bench  ;  3  Durnf.  &  East,  141  ;  but  otherwise  it  is  a 
rule  nisi.  7  Durnf.  k  East,  746.  la  the  Commoa  Pleas,  it  is  always  a  rule  to  show  cause. 
2  Blac.  Rep.  lOGl. 

(6)  Post,  Chap.  XXXV.  Append.  Chap.  XXXV.  ?  26. 

(c)  Post,  Chap.  XLIV.  Append.  Chap.  XLIV.  ^  22, 

(rf)  Post,  Chap.  XXI.  («•)  Post,  Chap.  XXII. 

(/)  Post,  Chap.  XXXII.  Append.  Chap.  XXXII.  §  13,  14. 

((f)  Ante,  485,  (/).  {h)  Post,  511.  (i)  Post,  Chap.  XXXVL 

(k)  Post,  Chap.  XLIII.  Append.  Chap.  XLIII.  g  CO. 

(/)  Antt,  110,  11,  119.  (m)  Ante,  113,  A'c. 

{nn)  Ante,  27G.     The  motion  is  to  justify  bail;  but  the  rule  is  tor  the  allowance  of  it. 

(oo)  Post,  Chap.  XXI.  (;>/))  Post,  Chap.  XXXI. 

(qq)  Post,  Chap.  XLIV.  (rr)  /'o»<,  Chap.  XXXVIL 

[ss]  Post,  Chap.  XL.  6  Durnf.  &  East,  601,  (6). 


486  OF  MOTIONS  AND  RULES,  ETC. 

prothonotaries,  either  party  may  move  for  their  report  thereon.  In  some 
of  the  preceding  cases,  the  rule  may  be  drawn  up  on  a  judge's  order  in 
vacation,  on  producing  a  motion  paper  signed  by  a  counsel  or  serjoant ; 
as  for  the  master  or  prothonotaries  to  compute  principal  and  interest  on 
bills  of  exchange,  or  promissory  notes, (^)  &c. ;  to  bring  money  into  court, 
change  the  venue,  or  plead  several  matters  ;  for  a  special  jm^y,  or  view ; 
to  have  a  good  jury,  on  the  execution  of  an  inquiry  ;  or  to  make  a  submis- 
sion to  arbitration  a  rule  of  court. («) 

*Special  rules  nisi^  or  to  show  cause,  are  moved  for,  in  both 
[  *487  ]  courts,  on  behalf  of  the  pZamf/jf  or  defendant.  On  behalf  of 
the  plaintiffs  they  are,  in  the  King's  Bench,  to  discharge  the 
rule  for  a  special  jury  ;(a)  or  for  a  scire  facias,  to  revive  a  judgment  above 
fifteen  years  old:(i)  In  the  Common  Pleas,  for  a  scire  facias  to  revive  a 
judgment,  above  tiventy  years  old;(«?)  and,  in  both  courts,  for  the  sale  of 
issues,  on  a  writ  of  distringas  ;{d)  to  amend  the  writ,(e)  or  return;  that 
the  money  deposited  with  the  sheriff,  and  paid  into  court,  under  statute 
43  Geo.  III.  c.  46,  §  2,  may  be  paid  over  to  the  plaintiff ;(/)  to  set  aside 
a  judgment  of  nonpros,  for  irregularity  ',{g)  for  leave  to  enter  up  judgment 
on  a  warrant  of  attorney,  above  twenty  years  old  :{h)  to  refer  it  to  the 
master  or  prothonotaries,  in  term  time,  to  compute  principal  and  interest 
on  bills  of  exchange,  or  promissory  notes,(2)  &c.  ;  for  the  execution  of  a 
writ  of  inquiry  before  the  chief  justice,(A;)  or  a  judge  at  nisi  prius  ;{Jc)  for 
the  defendant  to  produce  a  deed  in  his  possession,  and  give  a  copy  thereof 
to  the  plaintiff,  when  entitled  to  inspect  it,  in  order  that  he  may  declare 
thereon  ;(Z)  or  to  produce  the  same  before  the  Commissioners  of  the  Stamp 
office,  to  be  stamped,(w2)  or  to  the  plaintiff's  attorney,  in  order  that  he 
may  ascertain  the  names  of  the  witnesses,  so  as  to  subpoena  them  ;{n)  to 
discharge  the  rule  for  changing  the  venue,  for  irregularity  ;(o)  for  a  trial 
at  bar,(^;)  or  in  an  adjoining  cowatj ',[q)  to  set  aside  a  nonsuit,  verdict,  or 
inquisition,  and  have  a  new  trial, (rr)  or  inquiry  ;(ss)  to  enter  judgment  for 
the  plaintiff,  non  obstante  veredicto  ;{tt)  that  the  plaintiff  may  be  allowed 
his  costs  of  suit,  in  an  action  on  a  judgment  ;(w2i)  to  enter  up  judgment, 
and  take  out  execution,  after  verdict  against  one  of  several  defendants, 
where  the  rest  have  agreed  to  be  bound  by  it  ;(.r)  or  to  take  out  execution, 
pending  a  writ  of  error. (?/) 

(C)  Ante,  484. 

{u)  5  Barn.  &  Aid.  217.  And  see  stat.  5  Geo.  IV.  c.  lOG,  ?  8,  for  granting  rules  in  vaca- 
tion, in  the  courts  of  Great  Sessions  in  Wales,  for  a  particular  of  the  plaintiff's  demand 
and  defendant's  set  off,  &c. 

(«)  Post,  Chap.  XXXIV.  {b)  Ante,  485,  [m). 

(c)  Post,  Chap.  XLII.  {d)  Ante,  111. 

{e)  Ante,  130,  161.  (/)  Ante,  228,  9. 

{g)  Ante,  460.  (A)  Ante,  485,  6,  {y).  Post,  Chap.  XXI. 

(?)  Post,  Chap.  XXIT.  Append.  Chap.  XXII.  ?  .^2. 

[k)  Post,  Chap.  XXII.  Append.  Chap.  XXII.  \  55. 

{I)  2  Chit.  Rep.  229,  231.  1  Taunt.  386;  and  see  4  Taunt.  666.  1  Moore,  465.  8  Tannt. 
131.  2  Moore,  513,  (a),  S.  C.  3  Moore,  671.  1  Brod.  &  Bing.  318,  S.  C. ;  but  see  6  Taunt. 
283.  Id.  302.   1  Marsh.  610,  S.  C.  8  Taunt.  131.  2  Moore,  513,  &c. 

(to)  Cooke  Y.  Stocks,  M.  36  Geo.  III.  K.  B.  4  Taunt.  157.  5  Moore,  71  ;  and  see  1  Bing. 
161.  3  Bing.  292. 

(«)  2  Chit.  Ilcp.  230  ;  and  see  2'Campb.  95,  n.  (o)  Post,  Chap.  XXIV. 

[p)  Post,  Chap.  XXXIII.  Append.  Chap.  XXXIII.  ?  1.  {q)  Post,  Chap.  XXXIII. 

{rr)  Post,  Chap.  XXXVIII.  Append.  Chap.  XXXVIII.  ^  1. 

(ss)  Post,  Chap.  XXII.  '  (il)  Post,  Chap.  XXXVIII. 

(mm)  Post,  Chap.  XL.  ;  and  see  stat.  43  Geo.  III.  c.  46,  §  4. 

(x)  Post,  Chap.  XLI.  (y)  Post,  Chap.  XLIV. 


OP  MOTIONS  AND  RULES,  ETC.  487 

On  behalf  of  the  defendant^  rules  to  show  cause  are,  in  the  King's  Bench, 
to  consolidate  actions  \{z)  in  the  Common  Pleas,  to  declare  *j)er- 
emptorili/ ;{(()  when  the  defendant  is  in  custody;  to  change  the  [  *488  ] 
venue  •,{b)  to  plead  several  matters,  except  in  certain  cases  ;(c')  or 
for  the  copyhold  tenants  of  a  manor  to  inspect  and  take  copies  of  court 
rolls  ;((Z)  and,  in  both  courts,  they  are  to  reverse  an  outlawry  ;(t')  to  quash 
the  writ;(/)  to  set  aside  proceedings  for  irregularity  in  the  process,((/)  or 
notice  to  appear,(/i)  or  in  the  delivery,  filing,  or  notice  of  declaration,!/)  or 
notice  of  trial  or  inquiry;!/)  and,  if  the  defendant  be  in  custody,  to  discliarge 
him  on  filing  cunimon  bail,  or  entering  a  common  appearance  ;  or,  if  he  has 
given  bail  to  the  sheriff,  tiiat  the  bail  bond  may  be  delivered  up  to  be  can- 
celled;{/)  that  the  money  deposited  with  the  sheriiT,  and  ])aid  into  court, 
under  the  statute  4o  Geo.  III.  c.  40,  §  2,  maybe  repaid  to  the  defendant, 
or  his  bail,  on  putting  in  and  perfecting  bail  to  the  action  ,(A:)  to  set  aside 
proceedings  on  the  bail  bond,(^)  or  against  the  sheriff,  for  irregularity,(?«) 
or  to  stajj  them  upon  terms ;(«)  for  time  to  plead,  under  special  circum- 
stances ;(o)  to  staj/  proceedings,  where  the  debt  sued  for  appears  to  be  under 
forty  shillings,(p)  or  the  action  is  brought  or  conducted  on  bad  or  defective 
grounds,(/;)  contrary  to  good  faith, (^?)  or  without  proper  authority  ;(^j)  or 
that  they  may  be  stayed^  pending  a  writ  of  error,(  p)  until  security  be  given 
for  payment  of  costs,(^j)  or  the  costs  are  paid  of  a  former  action  for  the  same 
cause  ;(/>)  to  set  aside  an  interlocutory  judgment,  for  irregularity  ,(7)  or,  if 
regular,  on  an  affidavit  of  merits  ;(</)  to  strike  out  superfluous  or  unnecessary 
counts  ;(r)  to  withdraw  the  general  issue,  and  plead  it  de  novo,  with  a  notice 
of  set  ofr,(6')  or  upon  bringing  money  into  court  ;(s)  to  add  or  withdraw  spe- 
cial pleas  \{t)  to  amend  the  pleadings  :{u)  for  judgment  as  in  case  of  a  non- 
suit ;(.t'x-)  to  put  off  a  trial,  for  the  absence  of  a  material  witncss(v/_y)  or 
consent  to  his  being  examined  on  intcrrogatories,(25;)  or,  in  the  Common 
Pleas,  commission  for  that  purpose  ;(*)  to  set  aside  a  verdict  or 
inquisition,  and  that  there  may  be  a  new  trial(t)  or  *inquiry,  or  [  *4S9  ] 
(after  a  point  reserved,)  that  a  nonsuit  may  be  entered  ;(aa)  in 


[< 


(r)  Post,  Chap.  XXIV.     Append.  Chap.  XXIV.  §  8. 

\a)  Ante,  424.  (i)  iW/,   Chap.  XXIV.     Append.  Chap.  XXIV.  g  5. 

(c)  Post,  Chap.  XXVII.     Append.  Chap.  XXXVII.  g  12. 

(rf)  Ante,  486,  («).  (e)  Ante,  138,  &c. 

(/)  .4/i<e,  161,  1G7.  (^)  yI/(/c,  IGO,  61.     i'o«<,  Chap.  XX. 

Ill)  Ante,  167.  (i)  Post,  Chap.  XX. 

\k)  Ante,  227,  8.  (/)  Arite,  301,  2. 

(to)  Ante,  316,  17. 

(;i)  /(/.  ihid.  And  note,  one  motion  may  be  made  in  the  original  action,  to  stay  all  the 
proceedings  on  the  bail  bond  piven  in  that  action  ;  and  one  rule  in  such  case  seems  to  bo 
sufficient.  Nicldcn  v.  Profit,  Same  v.  T.itjlor,  and  Same  v.  Birley,  II.  37  Geo.  III.  K.  B.  3 
Bos.  &  Pul.  118,  C.  P. ;  and  see  ante,  304. 

(0)  Ante,  4G0,  70.  (p)  Post,  Chap.  XX, 

{q)  Post,  Chap.  XXII. 

(ri  Post,  Chap.  XXIV. 

(s)  Post,  Chap.  XXVII.  In  these  and  the  two  following  cases,  though  an  application 
may,  under  special  circumstances,  bo  made  to  the  court,  yet  it  is  more  usual  to  proceed 
by  summons  and  order,  before  a  judge. 

(<)iVv<,  Chap.  XXVII. 

(m)  Post,  Chap.  XXIX.     Append.  Chap.  XXIX.  ?  11,  12. 

(zx)  Post,  Chap.  X.XXIII.     Append.  Chap.  XXXIII.  '6  18. 

[liy]  i'o«^  Chap.  XXXIII. 

[zz)  Ante,  485,  {g).     Post,  Chap.  XXXV.     Append.  Chap.  XXXV.  I  12,  13. 

(*)  Post,  Chap.  XXXV.     Append.  Chap.  XXXV.  ?  16. 

(t)  Post,  Chap.  XXXVIII.     Append.  Chap.  XXXVIII.  ?  2.  3. 

[aa]  Post,  Chap.  XXXVIII.     Append.  Chap.  XXXVIII.  g  2,  3. 


489  OF  MOTIONS  AND  RULES,  ETC. 

arrest  of  judgment, (?>)  for  the  plaintiff  to  bring  the  postea  into  court,  anil 
file  the  plea  roll,  so  that  the  defendant  may  enter  a  suggestion,  to  entitle 
him  to  costs,  on  the  court  of  conscience  acts ;((?)  for  a  suggestion,  after 
non-suit  or  verdict,  to  entitle  him  to  double  or  treble  costs, ((i)  &c. ;  that 
he  may  be  allowed  his  costs  of  suit,  where  the  plaintiff  does  not  recover 
the  sura  for  which  he  was  arrested,  and  had  not  any  reasonable  cause  for 
arresting  him  to  that  amount :((?)  for  the  discharge  of  an  insolvent  debtor, 
under  the  statute  48  Geo.  III.  c.  123 ;(/)  or  to  set  aside  an  execution  for 
irregularity,  and  discharge  the  defendant  out  of  custody,  or  restore  to 
him  the  money  levied. (^) 

The  defendant  also,  as  well  as  the  plaintiff,  may  move  for  leave  to 
inspect  and  take  copies  of  books,  &c.  or  have  them  produced  at  the 
trial  ;(7i)  for  a  trial  at  bar,(i)  or  in  an  adjoining  county  :(y^)  to  set  aside  an 
award,(Z)  or  judge's  order  :{m)  for  a  repleadcr,(w)  or  veiiire  facias  de 
novo ;{n)  for  the  master  or  prothonotaries  to  review  their  taxation  ;(o)  or 
to  enter  up  judgment,  nunc  pro  tunc.{p) 

There  are  some  motions  and  rules  peculiar  to  the  action  of  ejectment ; 
such  as,  on  behalf  of  the  lessor  of  the  plaintiff  before  aj^j^earance,  for  judg- 
ment against  the  casual  ejector,(^)  in  ordinary  cases ;  or,  in  the  King's 
Bench,  against  the  real  ejector,  on  a  vacant  possession  ;  or,  when  the  tenant 
cannot  be  met  with,  that  service  of  the  declaration  on  a  relation  or  servant 
may  be  deemed  good  service  ;(r)  or,  when  a  landlord  proceeds  on  the  sta- 
tute 1  Geo.  IV.  c.  87,  that  the  tenant  may  give  such  undertaking,  and  enter 
into  such  recognizances  as  are  required  by  that  statute  :(s)  after  appearance^ 
and  before  trial,  they  are  to  set  aside  a  release  by  the  nominal  plaintiff,  or 
his  lessor,  or  a  retraxit  and  cognovit  by  the  tenant ;  or  for  a  trial  at  bar : 
and,  after  trial  for  leave  to  take  out  execution  against  the  casual  ejector, 
when  the  landlord  has  been  made  defendant,  and  failed  at  the  trial;  for  an 
attachment  against  the  defendant,  in  the  King's  Bench  and  Common  Pleas,(^) 
or  subpoena  in  the  Exchequer,(?t)  for  non  payment  of  costs  on  the  consent 
rule,  after  a  nonsuit,  for  not  confessing  lease  entry  and  ouster  ;  or  for  an  at- 
tachment, for  opposing  the  execution  of  the  writ  of  possession,  &c.  On  be- 
half of  the  tenant,  &c.  before  app)earance,  they  are  to  set  aside  a  judgment 
against  the  casual  ejector  for  irregularity^  or,  when  regular^ 
[  *490  ]  upon  an  *affidavit  of  merits,  and  payment  of  costs ;  the  common 
consent  rule  •,{aa)  for  the  landlord  to  be  admitted  to  defend,  with  or 
without  the  tenant  ',{bb)  or  for  a  tenant  in  common,  joint  tenant,  or  coparce- 
ner, to  confess  lease,  and  entry,  and  also  ouster  of  the  nominal  plaintiff,  in 
case  an  actual  ouster  of  the  plaintiff's  lessor,  by  the  defendant,  shall  be 
proved  at  the  trial,  but  not  otherwise  :[cc)  after  appearance,  and  before 

{h)  Post,  Chap.  XXXVIII.     Append.  Chap.  XXXVIII.  |  4,  5. 

(c)  Post,  Chap.  XL.     Append.  Chap.  XL.  §  2,  3  ;  and  see  8  East,  28. 

[d)  Prichard  v.  Peacock,  E.  35  Geo.  III.  K.  B. 

{e)  Stat.  43  Geo.  III.  c.  46,  §  3.  {  f)  Ante,  386,  &c.     T  Taunt.  37,  467. 

(ff)  Post,  Chap.  XLI.  (h)  Post,  Chap.  XXIIL 

(t)  Post,  Chap.  XXXIII.     Append.  Chap.  XXX  III.  §  1. 

(k)  Post,  Chap.  XXXin.  {1}  Post,  Chap.  XXXVL 

(m)  Post,  511.  (n)  Post,  Chap.  XXXVIIL 

(o)  Post,  Chap.  XXXIX.  (p)  Post,  Chap.  XL. 

(q)  Append.  Chap.  XLVL  ?  42,  3,  4.  (r)  Id.  ?  38,  9. 

(s)  Id.  §  50,  52.  (t)  Append.  Chap.  XL.  §  9,  10.     Chap.  XLVI.  ?  126. 

(u)  Append.  Chap.  XL.  ?  13.     Chap.  XLVI.  ^  127,  8. 

(aa)  Append.  Chap.  XLVI.  §  64,  &c.  Ibb)  Id.  §  75,  &c. 

(cc)  Id.  2  72. 


OF  MOTIONS  AND  RULES,  ETC.  490 

trial,  tlicy  are  to  consolidate  ejectments;  to  stay  proceedings  against  the 
defendant,  until  security  be  given  for  the  payment  of  costs;  or  until  the 
costs  are  paid  of  a  former  ejectment  ;((i)  to  stay  execution,  pending  error; 
or  to  stay  proceedings,  on  payment  of  rent,  kc.  on  statute  4  Geo.  II.  c. 
28:(g)  or  on  payment  of  mortgage  money,  &c.  on  statute  7  Geo.  II.  c.  20, 
§  !:(/)  and,  after  trial,  for  an  attachment  against  the  lessor  of  the  plain- 
tiff, in  the  King's  IJench,  or  Common  rieas,(^)  or  subjnxtta  in  the  Exche- 
quer,(A)  for  non-payment  of  costs  on  the  consent  rule,  where  the  plaintiff 
is  nonsuited  upon  the  merits,  or  there  is  a  verdict  for  the  defendant ;  or 
for  restoring  the  possession  of  premises,  improperly  delivered  to  the  lessor 
of  the  plaintiff,  under  the  writ  of  possession,  &c.  These  motions  and  rules 
will  be  treated  of,  in  the  order  in  -which  they  occur,  in  the  last  chapter  of 
the  present  work. 

There  are  other  motions  and  rules,  not  necessarily  connected  with  any 
suit ;  such  as  to  set  aside  an  annuity,  and  deliver  up  the  securities  to  be 
cancelled,  kc. ;  to  strike  an  attorney  off  the  roll,  for  misconduct,(/)  or,  at 
his  own  instance,  when  there  is  no  complaint  against  him  ;(/c)  to  re-admit  an 
attorney,  who  has  neglected  to  take  out  his  certificate  for  more  than  a  year 
on  payment  of  the  arrears  of  stamp  duty,(Z)  kc. ;  or  to  make  a  submission 
to  arbitration,  by  bond  or  agreement,  a  rule  of  court. (???)  The  rule  for 
striking  an  attorney  off  the  roll  at  his  own  instance,  or  for  making  a  sub- 
mission to  arbitration  a  rule  of  court,  is  drawn  up  on  the  signature  of  coun- 
sel, in  the  King's  Bench:  but  in  the  Common  Pleas,  it  is  moved  for  in 
court,  and  absolute  in  the  first  instance  :{n)  In  the  other  cases,  the  rule 
is  only  to  show  cause. 

Rules,  it  has  been  said,  arc  not  records  ;  but  only  rcmemhranccs,  not  en- 
tered on  the  rolls  of  the  court. (o)  A  rule  or  order  drawn  up  by  an  oQiccr 
of  a  court  of  justice,  and  purporting  to  be  the  rule  or  order  of  the  court,  is 
BO  considered,  until  amended  or  set  side.(j9)  And  if  a  rule  of  court  be 
produced  under  the  hand  of  the  proper  ofiicer,  there  is  no  need  to  prove  it 
to  be  a  true  copy,  because  it  is  as  an  original. (ry)  But  the  allegations  in  a 
rule  of  court,  do  not  prove  the  facts  alleged. (r) 

•A  motion  is  sometimes  preceded  by  a  notice ;{a)  and  is  in  [  *491  ] 
general  accompanied  with  an  affidavit,  or  affidavits,  of  the  facts 
necessary  to  support  it.(6)  In  the  King's  Bench,  notice  of  motion  is  ne- 
cessary in  the  case  of  an  information,  or  to  quash  a  conviction. (ec)  And 
in  other  cases,  though  seldom  necessary,  it  is  frequently  given,  in  order 
that  the  rule  nisi  may  operate  as  a  stay  of  proceedings;  or  to  save  time 
and  expense,  by  affording  the  adverse  party  an  opportunity  of  showing  cause 
in  the  first  instance,  or  by  inducing  the  court  to  disallow  the  costs  of  pro- 
ceedings had  after  notice,  and  before  the  motion.  The  statute  14  Geo.  II. 
c.  17,  §  1,  requires  notice  of  motion  for  judgment  as  in  case  of  a  nonsuit ; 
but,  in  the  King's  Bench,  the  rule  to  show  cause  is  considered  a  sufficient 

(d)  Id.  ?  91. 

(e)  Id.  l  85,  6,  (/)  Id.  \  87. 

\g)  Append.  Chap.  XL.  I  9,  10.  (A)  Append.  Chap.  XLVI.  g  127,  8. 

(j)  yin/c,  89.  {k)  Id.  ibid. 

(/)  Ante,  78,  9,  80.  (m)  Po.it,  Chap.  XXXVI. 

(n)  Append.  Chap.  XXXVI.  ?,  19.  (o)  1  Wils.  40.     2  Ham.  &  Aid.  61. 

(p)  6  Moore,  501.  3  Brod.  &  Bing.  188,  S.  C. ;  but  see  2  Barn.  &  Crcs.  45.  3  Dowl.  & 
Ryl.  237,  S.  C.  in  Error. 

(q)  1  L(l.  Raym.  74.-i ;  and  see  1  Campb.  102.  (r)  G  Taunt.  19. 

(a)  Append.  Chap.  XIX.  §  1,  &c.  (6)  /(/.  §  5. 
(cc)  Rex  V.  Johnson,  M.  22  Geo.  III.  K.  B. 

Vol.  I.--31 


491  or  MOTIONS  AND  RULES,  ETC. 

notice  of  itself  ;(£?)  though  it  is  otherwise  in  the  Common  Pleas  :(e)  And,  in 
the  latter  court,  a  rule  nisi  is  no  stay  of  proceedings,  unless  notice  of  mo- 
tion be  given,  and  an  affidavit  thereof  filed,  except  in  the  case  of  rules  for 
new  trials,  or  in  arrest  of  judgment.  In  the  Exchequer,  when  a  party  gives 
notice  of  an  intended  motion,  and  no  one  appears  on  the  appointed  day  to 
make  it,  the  court  will  not  give  the  other  party,  who  has  attended  for  the 
purpose  of  opposing  it,  the  costs  of  his  attendance,  if  one  notice  only  has 
been  given. (/)  Such  attendances,  however,  have  been  taken  into  consi- 
deration, when  motions,  of  which  several  notices  had  been  given,  have 
been  at  length  brought  on ;  and  the  court  have,  in  certain  cases,  after  the 
motions  have  been  disposed  of,  exercised  a  discretionary  power,  in  giving 
directions  respecting  the  costs. (/) 

Affidavits  are  in  general  sworn  in  court,  or  before  a  judge  or  haron  of 
the  court,  where  the  action  is  brought ;  or  before  a  commissioner  autho- 
rized to  take  affidavits,  by  virtue  of  the  statute  29  Car.  II.  c.  5  ',{g)  or,  if 
made  for  the  purpose  of  holding  the  defendant  to  special  bail,  they  may 
be  sworn  before  the  officer  who  issues  the  process,  or  his  deputy  ;(7i)  or,  to 
prove  the  service  of  common  process,  before  the  clerk  of  the  common  bails, 
or  filacer,  by  the  statute  12  Geo.  I.  c.  29.(2)  And,  by  a  late  rule  of  the 
court  of  King's  Bench,(^)  it  is  ordered,  that  "  no  commission  for  taking 
affidavits  in  that  court  shall  be  issued  to  any  person  practising  as  a  con- 
veyancer, unless  such  person  be  also  an  attorney  or  solicitor  of  one  of  the 
courts  at  Westminster  ;  and  that  no  such  commission  shall  issue,  without 
an  affidavit,  made  by  the  person  intended  to  be  named  therein,  that  he  is 
not,  and  doth  not  intend  to  become  a  practising  conveyancer,  or  that  he  is 
an  attorney  or  solicitor,  duly  enrolled  in  one  of  the  said  courts,  and  hath 
taken  out  his  certificate  for  the  current  year."  Which  rule  was  extended, 
by  a  subsequent  one,(^)  to  attorneys  and  solicitors  duly  enrolled 
[  *492  ]  and  *practising  in  any  of  the  courts  of  great  sessions  in  Wales, 
or  in  either  of  the  counties  palatine  of  Chester,  Lancaster,  or 
Durham. 

Affidavits  maybe  considered  with  reference  to  their  title,  contents,  ^Mra^, 
stamp,  and  filing,  &c. :  The  title  also  may  be  considered,  as  it  respects  the 
court,  or  the  names  of  the  parties.  All  affidavits  should  regularly  be  enti- 
tled in  the  court  where  they  are  made,  or  intended  to  be  used ;  and  in  the 
King's  Bench,  we  have  seen, (a)  if  they  be  not  so  entitled,  but  only  sub- 
scribed with  the  words,  ''''By  the  Court,"  at  the  bottom  of  the  jurat,  they 
are  not  sufficient  to  entitle  the  party  to  read  them  ;  nor  can  they  be  read, 
if  sworn  before  a  commissioner,  without  stating  him  to  be  a  commis- 
sioner of  this  court,  unless  they  are  so  entitled. (6)    In  the  Common  Pleas, 

[d)  Lofft,  265. 

(e)  1  H.  Blac.  527.     Append.  Chap.  XXXIII.  §  16;  and  see  2  Taunt.  48. 
(/)  9  Price,  14. 

(g)  For  the  form  of  the  jurat  in  these  cases,  see  Append.  Chap.  XIX.  §  6,  &c. 

{h)  Ante,  154,  164,  5  ;  179.    Append.  Chap.  X.  §  1.  («)  Append.  Chap.  XII.  §  4. 

{k)  R.  H.  3  &  4  Geo.  IV.  K.  B.     1  Bam.  &  Cres.  288.     2  Dowl.  &  Ryl.  438. 

{I)  R.  E.  4  Geo.  IV.  K.  B.  1  Barn.  &  Cres.  656.  2  Dowl.  &  Rjl.  870.  And  see  stat.  5 
Geo.  IV.  c.  106,  ^  9,  authorizing  the  judges  of  the  courts  of  Great  Sessions  in  Wales,  to 
issue  commissions,  directed  to  persons  resident  out  of  their  jurisdiction,  for  taliing  answers, 
examinations,  and  aflSdavits,  &c. ;  and  id.  g  28,  by  which  commissioners  for  taliing  afiSdavits 
in  the  King's  Bench,  Common  Pleas,  and  Exchequer,  or  a  master  extraordinary  in  Chan- 
cery, are  authorized  to  take  them,  of  and  concerning  any  matter  arising  within  the  jurisdic- 
tion of  the  said  courts  of  Great  Sessions. 

(a)  Ante,  180,  81.     Append.  Chap.  XII.  §  4. 

{b)  13  East,  189;  but  see  7  Durnf.  &  East,  451. 


OF  MOTIONS  AND  RULES,  ETC.  492 

■we  have  seen,  {ante,  170,)  an  afii<lavit  of  debt  sworn  before  a  commis- 
sioner in  the  country,  without  statin^r  him  to  be  a  commissioner  in  the 
jurat,  is  insufficient,  althou;:^h  entitled  in  this  court.  1  Moore  &  P.  22,  4 
Bing.  393,  S.  C.  And,  in  the  Common  Pleas,  a  rule  nisi  was  discharged, 
because  the  affidavit  on  which  it  was  obtained,  was  not  entitled  in  any 
court,  although  it  appcarc<l  from  the  jurat,  that  it  was  sworn  before  one 
of  t\ic  juiIf/t'H  of  this  court. (f)  But  affidavits  sworn  before  a  judge  of  the 
court  of  King's  Bench,  though  not  entitled  therein,  may  it  seems  be 
read  :(rf)  And,  in  the  Common  Pleas,  an  affidavit  entitled  "  In  the  Common 
Place,'"  has  been  deemed  sufficient. (o) 

When  a  cause  is  depending  in  either  court,  the  affidavits  should  regu- 
larly be  entitled  with  the  christian  ami  surnames  of  all  the  parties,(/)  and 
the  character  in  uhich  they  sue,  or  are  sued  ;(^)  -which  must  also  be 
inserted  in  the  title  of  affidavits,  produced  to  show  cause  against  any 
rule:(/i)  And  an  ambiguity  in  the  title,  such  as  styling  the  plaintiff  "assig- 
nee," without  saying  of  whom,  or  giving  any  further  explanation,  is 
fatal. (/)  But  where  common  process  is  sued  out  against  A.  and  several 
other  defendants,  in  the  Common  Pleas,  if  the  latter  be  not  brought  into 
court,  the  affidavit  to  set  aside  the  proceedings  may  be  entitled  in  a  cause 
between  the  plaintiff  and  A.  only  :{k)  And  in  an  action  not  bailable, 
against  two,  one  defendant  may,  before  declaration,  well  entitle  his  affida- 
vits in  a  cause  of  A.  against  B.  who  is  sued  with  C.(/)  When  no  cause  is 
depending,  as  in  the  case  of  affidavits  to  hold  to  bail,  it  is  a  rule  in  the 
King's  Bench,  that  such  affidavits  be  not  entitled  in  any  cause,  nor  read 
if  filed  :(w?)  And  in  the  Common  Pleas,  we  have  seen,(«)  if  an  affidavit  to 
hold  to  bail  be  entitled  in  a  cause,  it  is  bad ;  and  the  defendant  may  be 
discharged,  on  entering  a  common  *appearance.  The  affidavits 
on  a  motion  for  leave  to  file  a  criminal  information,  in  the  King's  [  *493  ] 
Bench,  ought  not  to  be  entitled  ;  and  if  they  are,  cannot  be 
read:  The  affidavits  produced  on  showing  cause  may,(rt)  or  may  not, (5) 
be  entitled:  but  all  affidavits  made  after  the  rule  is  absolute,  must  be  enti- 
tled.((?c?)  So,  where  a  submission  to  an  award  is  made  a  rule  of  court 
under  the  statute,  there  being  no  action,  the  affidavits  on  which  to  apply 
for  an  attachment,  for  disobeying  the  award,  need  not  be  entitled  in  any 
cause ;  but  the  affidavits  in  answer  must.((/c?)  In  entering  up  judgment 
on  an  old  warrant  of  attorney,  the  affidavit  may  be  properly  entitleil  in  a 
cause  -.{ee)  And,  in  moving  to  stay  proceedings  on  a  bail  bond,  the  affida- 
vit on  which  the  motion  is  made,  is  to  be  entitled  in  the  original  action, 
and  not  in  the  actions  against  the  bail.(^")     Motions   and  affidavits  for 

(c)  1  Bos.&  Pul.  271. 

(rf)  13  East,  189.  (<•)  4  Iliiig.  101. 

(/)  2  Sulk.  4G1.  2  Durnf.  &  East,  G44.  R.  M.  38  Geo.  III.  K.  B.  7  Dunif.  &  East,  454 
661.  8  Taunt.  647.  2  Moore,  722,  S.  C.  1  Chit.  Rep.  727,  8.  8  Dowl.  &  Ryl.  423;  and 
see  1  Smith  R.  457.  2  Smith  R.  394.  1  Bos.  &  Pul.  36,  227.  3  Price,  199;  but  see  5 
Taunt  333.     1  Marsh.  70,  S.  C. 

(^)  3  Taunt.  377.  (A)  7  Durnf.  &  East,  6G1.     1  Chit.  Rep.  727,  8. 

\i)  3  Taunt.  377.     1  Chit.  Rep.  728,  in  nodi. 

\k)  6  Taunt.  5.  1  Marsh.  403,  S.  C;  and  see  6  Taunt.  286;  but  see  1  Chit.  Rep.  727,  8, 
(a),  scmh.  contra. 

{/}  6  Taunt.  286.  (m)  R.  T.  37  Geo.  111.  K.  B.     7  Durnf.  k  East,  454.     Ante,  180. 

(n)  Ante,  180.  (<j)  1  Sir.  704.     Andr.  313. 

(b)  6  Durnf.  &  East,  60 ;  and  see  11  East,  457.  (cc)  6  Durnf.  &  East,  642. 

{dd)  3  Durnf.  &  East.  601  ;  and  see  5  East,  21.     12  East,  166,  (a). 

(ee)  1  Barn.  &  Aid.  507.     Id.  508,  (a). 

(/)  Ante,  304  ;  but  see  2  Chit.  Rep.  109.     7  Moore,  521.     1  Bing.  142,  S.  C. 


498 


OF  MOTIONS  AND  RULES,  ETC. 


attachments  in  civil  suits  are,  we  have  sccn,((/r/)  in  the  King's  Bench,  pro- 
cecdinf^s  on  the  plea  side  of  the  court,  until  the  attachments  are  granted, 
and  arc  to  he  entitled  with  the  names  of  the  parties  ;(A/i)  hut  as  soon  as 
the  attachments  are  granted,  the  proceedings  are  on  the  crown  side,  and 
from  that  time  the  king  is  to  he  named  the  prosecutor  :  And  motions  and 
affidavits  for  attachments  arc  entitled  in  like  manner,  in  the  Common 
Pleas. (?)  and  Exchequer.  On  moving  for  a  rule  7iisi  for  a  certiorari,  it  is, 
■we  have  seen,(^)  irregular  to  entitle  the  affidavits  in  any  cause  ;  and  if 
they  are  entitled,  they  cannot  he  read.(^)[A] 

In  point  of  fortn,  affidavits  begin  with  stating  the  names,  and  places  of 
abode,  of  the  persons  by  whom  they  are  made :  And,  in  the  King's  Bench, 
it  is  a  iu\e,{m)  that  "  the  addition  of  every  person  making  the  affidavit, 
should  be  inserted  therein;"  but  there  is  no  such  rule  in  the  Common 
Pleas :  and,  in  the  latter  court,  it  is  not  necessary  that  an  affidavit,  made 
by  the  defendant  in  the  cause,  stating  his  name  and  place  of  abode,  and 
styling  him  defendant,  should  also  contain  the  addition  of  his  degree. (w) 
The  affidavits  should  contain  a  full  statement  of  the  circumstances  neces- 
sary to  support  the  application  ;(o)  and  the  rather,  as  it  is  a  rule  not  to 
receive  supplementary  affidavits,  on  showing  cause,  without  leave  of  the 
court  :{p)  But  there  is  said  to  be  a  diversity  between  affidavits  which  con- 
tain new  matter,  and  such  as  tend  only  to  confirm  what  was  alleged  and 
sworn  when  the  rule  was  made  ;  in  the  latter  case,  it  seems  they  may  be 
read,  but  not  in  the  former, (^)  Clerical  errors,  and  mistakes  in  spelling, 
are  not  considered  a  sufficient  ground  for  rejecting  an  affidavit, 
[  *494  ]  when  the  meaning  is  *clear.(a)[B]  And  when  notice  of  motion 
has  been  given  it  should  be  sworn  that  it  was  duly  served. (5) 

By  the  general  practice  of  all  the  courts,  affidavits  sworn  before  the  attor- 
ney or  solicitor  in  the  cause,  cannot  be  read.(c)  And  this  practice  extends 
to  affidavits  taken  before  attorneys,  as  commissioners,  in  causes  wherein 
they  are  concerned  for  the  parties  on  whose  behalf  such  affidavits  are 
made ;  except  where  they  are  made  for  the  purpose  of  holding  the  defend- 
ant to  special  bail,(cZ)  or  entering  an  appearance  in  the  Common  Pleas  :(e) 
and  that  court  will  discharge,  with  costs,  a  rule  obtained  by  a  party  on 
affidavits,  which  are  sworn  before  his  own  attorney  in  the  cause. (/)  It  is 
also  a  rule  in  the  Common  Pleas,(.9')  that  "  when  the  acknowledgments 
of  any  person  or  persons  levying  fines,-  or  suS"ering  recoveries,  shall  be 
taken  before  commissioners,  one  at  least  of  the  commissioners  for  tak- 
ing  the   acknowledgment  of  any  party  to  such  fine  or  recovery,  shall 

lag)  Anfe,  480,  81. 

(hh)  3  Durnf.  &  East,  253.     7  Durnf.  &  East,  439,  528.     12  East,  165. 
li)  2  Bos.  &  Pul.  517,  (a).  (k)  Ante,  400. 

{I)  1  Barn.  &  Cres.  267.  (»«}  R.  M.  15  Car.  II.  reg.  1  K.  B.    Ante,  179. 

(n)  6  Taunt.  73. 

(o)  For  the  forms  of  the  affidavits  in  particular  cases,  see  1  Chit.  Rep.  102,  (a),  316,  321. 
3  Barn.  &  Aid.  582. 

{p)  Fast,  496,  7,  501.  (?)  2  Salk.  461. 

(a)  1  Chit.  Rep.  562.  (6)  Append.  Chap.  XIX.  §  4. 

(c)  2  Ken.  421.  3  Durnf.  &  East,  403,  K.  B.  3  Moore,  325,  C.  P.  Wightw.  62.  1  Price, 
116.     6  Price,  230.     9  Price,  478,  Excheq.     3  Atk.  813.     1  Rose,  145,  Chan. 

(d)  R.  E.  15  Geo.  II.  reg.  2,  K.  B.     R.  E.  13  Geo.  II.  reg.  1,  C.  P.     Ante,  179,  80. 

(e)  R.  E.  13  Geo.  II.  reg.  1,  C.  P.  (/)  8  Taunt.  74. 

(g)  R.  E.  8  Geo.  IV.  C.  P.    4  Bing.  248 ;  and  see  R.  H.  7  &  8  Geo.  IV.  C.  P.    4  Bing.  102. 

[a]  See  Whitney  v.  Warner,  2  Cow.  299. 

[b]  See  ante,  p.  180,  note  [a]. 


OF  MOTIONS  AND  RULES,  ETC.  494 

be  a  person  wlio  is  not  concerned  as  the  attorney  solicitor  or  agent, 
or  clerk  to  the  attorney  solicitor  or  agent,  of  any  party  thereto ;  and 
that  in  the  affidavit  to  he  made  of  the  due  taking  of  such  acknowledjj- 
ment,  it  shall  he  deposed,  in  addition  to  the  facts  now  required,  by  the 
rules  of  the  court,  to  bo  included  in  such  afTidavit,  that  one  at  least  of 
the  commissioners  taking  such  acknowledgment,  is  not  the  attorney  soli- 
citor or  agent,  or  clerk  to  the  attorney  solicitor  or  agent,  of  any  of  tho 
parties  to  the  fine  or  recovery,  for  taking  the  acknowledgment  to  which 
the  commission,  under  which  he  has  acted,  has  been  issued ;  and  the  name 
and  residence  of  such  commissioner  shall  be  stated  in  such  affidavit."  But 
the  rule  which  prohibits  the  swearing  of  affidavits  before  the  attorney  or 
solicitor  in  the  cause,  does  not  extend  to  the  attorney's  clerk ;  and  there- 
fore an  affidavit  may  be  taken  before  a  clerk  of  the  attorney  in  the  cause, 
if  such  clerk  be  empowered  to  take  affidavits. (/t)  So,  in  the  Common 
Pleas,  if  the  agent  in  town  be  the  attorney  on  record,  it  is  no  objection 
to  an  affidavit  of  the  party,  that  it  is  sworn  before  his  own  attorney  in  the 
country.(e) 

The  jurat  of  affidavits  should  state  where,  when,  and  before  whom  they 
are  sworn  :(/<;)  as  that  they  are  SAVorn  in  court,  when  there  made ;  or,  if 
the  court  be  not  mentioned  at  the  top  of  the  affidavit,  "in  the  court  of 
King's  Bench,  Common  Pleas,  or  Exchequer,  at  Westminster  Hall ;"(/)  or, 
if  made  before  a  jwlge  or  baron,  that  they  are  SAvorn  at  his  chambers,  or 
house,  describing  the  situation  ;(7??)  or,  if  made  before  a  commis- 
aioner,  at  the  place  *where  he  resides  :{a)  adding,  in  each  case,  [  *495  ] 
the  day  of  swearing  them  •,{b)  and,  if  sworn  in  court,  subscribing 
these  words,  "By  the  Court ;"(<?)  or,  if  sworn  before  a  judge,  baron,  or 
commissioner,  his  name  ;{d)  and,  if  the  court  be  not  mentioned  at  the  top 
of  the  affidavit  sworn  before  a  commissioner,  that  he  is  a  commissioner  of 
the  court  of  King's  Bench, (e)  &c.  In  the  King's  Bench  and  Exchequer, 
it  is  a  rule,  that  "  where  an  affidavit  is  made  before  a  commissioner,  by  a 
person  who  from  his  signature  appears  to  be  illiterate,  the  commissioner 
taking  the  affidavit  shall  certify,  or  state  in  the  jurat,  that  it  was  read  in 
his  presence,  to  the  party  making  the  same,  who  seemed  perfectly  to 
understand  it,  and  wrote  his  signature  in  the  presence  of  the  commis- 
sioner."(/)  It  is  also  a  rule  in  these  courts,  that  "upon  every  affidavit 
sworn  in  court,  or  before  any  judge  or  commissioner  thereof,  and  made 
by  two  or  more  deponents,  the  names  of  the  several  persons  making  such 
affidavit,  shall  be  written  in  the  jurat  ;{g)  and  that  no  affidavit  be  read  or 
made  use  of,  in  any  matter  depending  in  either  of  tlicse  courts,  in  the 
jurat  of  which  there  shall  be  any  interlineation  or  erasure. "(/«//)  The 
same  practice  obtains  in  the  court  of  Common  Pleas.  And,  in  that  court, 
•if  the  month  be  omitted  in  the  jurat  of  the  affidavit,  it  is  defective,  and 

(h)  a  Durnf.  k  East,  033.  (/)  5  Taunt.  80,  and  see  8  Taunt.  435, 

(A-)  3  Maulu  <k  Sel.  403,  and  see  1  Chit.  Rep.  228,  405. 

(l)  Append.  Chap.  XIX.  §  6.  (m)  LI.  §  7. 

(a)  Append.  Chap.  XIX.  §  8.  (h)  1  Chit.  Rep.  228. 

(c)  Append.  Chap.  XIX.  jj  6.  (rf)  Id.  I  7,  8. 

(e)  /rf.  g  8,  but  see  1  Moore  &  P.  22.     4  Ring.  303,  S.  C.     ^n/*-,  179,  402. 

(/)  R.  E.  31  Geo.  III.  K.  B.  4  Durnf.  &  East,  284.  R.  H.  40  Geo.  III.  &  T.  1  Geo.  IV. 
E.xcheq.  Man.  Ex.  Append.  224.  8  Price,  501,  504.  Append.  Chap.  XIX.  g  9,  and  see  1 
Chit.  Rep.  660,  in  notis.     2  Chit.  Rep.  92. 

(</)  Append.  Chap.  XIX.  9  11. 

\hh)  R.  M.  37  Geo.  III.  k!  15.  7  Durnf.  k  East,  82.  R.  T.  1  Geo.  IV.  Excheq.  8  Price, 
501,  and  see  11  Price,  500.  But  an  erasure  over  ihe  Jurat  does  not  vitiate  it.  2  Chit.  Rep.  19. 


495  OF  MOTIONS  AND  RULES,  ETC. 

cannot  be  amended. (^7)  In  the  Exchequer,  it  must  appear  hjtlae  jurat  of 
every  aOidavit,  that  it  has  been  sworn  by  all  the  deponents  ;{kk)  but  it  is 
not  necessary,  as  in  the  other  courts,  that  they  should  be  severally  named 
in  the  jurat,  as  having  been  sworn. (ZZ)  When  an  affidavit  is  made  by  a 
foreigner,  in  the  English  language,  an  interpreter  must  be  sworn,  by  the 
officer  taking  the  affidavit,  to  interpret  it  truly ;  and  the  jurat  should  state 
that  the  interpreter  was  so  sworn,  and  did  so  interpret  the  affidavit :  But 
it  is  not  necessary  that  any  affidavit  should  be  made  by  the  interpreter, 
or  the  officer  taking  the  affidavit :  It  is  sufficient  that  the  latter  certifies 
by  the  jurat,  that  the  above  steps  were  taken. (w)  So,  in  the  case  of  an 
affidavit  made  by  a  marksman,  it  is  sufficient  that  the  officer  making  the 
jurat,  certifies  that  it  was  read  over  to,  and  seemed  to  be  understood  by 
the  deponent,  without  any  separate  affidavit  of  that  fact.  But  if  the 
affidavit  by  the  party  be  made  in  a.  foreign  language,  there  must  it  seems 
be  another  affidavit,  by  an  interpreter,  to  verify  a  translation  of  the 
affidavit  of  the  party.  When  there  is  a  defect  in  the  jurat  of  an  affidavit 
on  which  a  motion  is  made,  it  cannot  be  used,  nor  will  time  be  given, 

except  in  cases  of  bail, (w)  But  though  the  omission  of  the  form 
|_  *496  ]  directed  to  be  inserted  in  the  jurat  *of  an  affidavit,  may  be  an 

objection  to  its  bemg  received  in  the  court  whose  rules  have  not 
been  complied  Avith,  yet  still  it  seems  that  perjury  may  be  assigned  upon 
it:(a)  And  on  an  indictment  for  perjury,  in  an  answer  to  a  bill  in  Chan- 
cery, it  was  holden,  that  the  recital  in  the  jurat,  of  the  place  where  the 
answer  purported  to  be  sworn,  was  sufficient  evidence  that  the  oath  was 
administered  at  the  place  named. (5) 

By  the  general  stamp  acts,(c)  "  every  affidavit,  to  be  filed,  read  or  used 
in  any  of  the  courts  of  law  or  equity  at  Westminster,  or  of  the  Great 
Sessions  mWales,  or  of  the  counties  palatine  of  Chester,  Lancaster,  and 
Durham,  or  before  any  judge  or  master,  or  other  officer  of  any  of  the  said 
courts,  &c.,  and  the  copy  of  every  such  affidavit,  was  formerly  subject  to 
the  stamp  duty  of  half  a  crown."  In  the  construction  of  these  acts  it  was 
holden  that  an  affidavit  made  in  the  same  cause,  and  relating  to  the  same 
subject  matter,  only  required  one  stamp,  though  it  were  made  by  several 
persons  :  And,  in  the  King's  Bench,  an  affidavit  with  a  single  stamp,  was 
deemed  sufficient  to  found  several  rules,  on  a  quo  warranto  prosecution. (c?) 
But  in  general,  an  affidavit  that  related  to  several  causes,  must  have  had 
as  many  stamps  as  there  were  cases  to  which  it  applied  :(e)  And,  in  the 
Common  Pleas,  where  the  affidavits  in  four  causes  were  each  of  them 
entitled  in  all  the  four,  but  there  was  only  one  stamp  on  each  affidavit, 
and  an  objection  was  taken  on  this  account,  the  court  held  the  objection 
fatal ;  but  allowed  the  counsel  to  amend,  by  striking  out  three  of  the 
names,  and  reswearing  the  affidavits  in  the  fourth  cause,  which  made  them 
good  affidavits  in  that  cause. (/)  In  like  manner,  two  separate  affidavits 
required  separate  stamps,  though  they  were  contained  on  the  same 
paper.(^)    And,  on  showing  cause  against  a  rule  which  had  been  pre- 

(u)  3  Moore,  236.  {kk)  1  Price,  338.  {II)  2  Price,  1. 

(w)  4  Barn.  &  Cres.  358.     6  Dowl.  &  Ryl.  514,  S.  C.     Ante,  180. 

{n)  2  Chit.  Rep.  20.  (a)  Ry.  &  Mo.  94.  {b)  Id.  97. 

(c)  48  Geo.  III.  c.  149.  Sched.  Part.  II.  I  III.  55  Geo.  III.  c.  184.  Sched.  Part.  II.  I  III. ; 
but  see  4  Bing.  193. 

{d)  Rex  V.  Midler,  T.  53  Geo.  III.  K.  B.     1  Chit.  Rep.  452,  in  notis. 

(«)  Id.  451 ;  aad  see  2  Chit.  Rep.  14.  (/)  3  Taunt.  469 ;  and  see  8  Moore,  238. 

\g)  1  Chit.  Rep.  452,  in  notis. 


OF  MOTIONS  AND  RULES,  ETC.  496 

\iously  before  a  judge  at  chambers,  the  same  affidavits  could  not  be  used, 
unless  they  had  been  restamped.(/()  The  stamp  duty,  however,  on  affidavits, 
and  copies  thereof,  was  abolished  by  the  statute  ')  Geo.  IV.  c.  41. 

The  affidavit  should  be  made  before  the  rule  is  moved  for,(i)  and  pro- 
duced in  court  at  the  time  of  making  the  motion. (A-)  The  party  therefore 
moving  for  a  rule  cannot,  without  withdrawing  his  motion  and  moving  it 
again,  make  use  of  affidavits //c't?  after  he  obtained  his  rule  7i{8i.{l)  But 
though  affidavits  have  been  used,  and  a  motion  made  thereon,  tliey  may  bo 
again  referred  to,  in  support  of  a  fresh  motion. (w)  AVhcn  an  affidavit 
made  in  town  has  been  used,  but  not  before,  it  should  be  fib'd  with  the 
clerk  of  the  rules  in  the  King's  J3ench,  in  order  that  it  may  be  given  in 
evidence,  if  necessary,  on  an  indictment  for  perjury. (w)  But  country 
affidavits  must  be  filed  sooner :  it  being  provided  by  the  statute 
29  Car.  II.  c.  5,  that  "  all  *affidavits  sworn  before  the  comniis-  [  *4'J7  ] 
sioners  appointed  by  virtue  of  that  act,  shall  be  filed  in  the 
proper  office  of  the  court  where  the  action  or  matter  is  depending,  and 
then  read:"  And  it  is  necessary,  in  the  King's  Bench, (a)  that  "all  such 
affidavits  be  brought  to  the  clerk  of  the  rules  of  this  court,  to  be  filed,  in 
such  convenient  time  that  copies  of  them  may  be  duly  made,  and  delivered 
to  the  party  filing  the  same."  In  the  Common  Pleas,  it  is  a  rule,  that 
"  the  secondaries  shall  not  file  any  affidavits,  taken  before  any  person  that 
is  not  commissioned  to  take  the  same ;  and  that  no  affidavit  be  road  in 
court,  before  the  same  is  filed. "(ft)  Affidavits  of  the  execution  of  articles 
of  clerkship,  and  service  under  them,  are  filed  with  the  cliief  cleric^  or  his 
deputy,  in  the  King's  Bench,  or  clerk  of  the  wari'ants,  in  the  Common 
Pleas  ;(6')  affidavits  toehold  to  bail,  with  the  officer  w^ho  issues  the  process, 
or  his  deputy  ;((Z)  affidavits  of  the  service  of  process,  with  the  clerk  of  the 
common  bails,  or  filacer ;[e)  affidavits  of  the  truth  of  pleas  in  abatement, 
with  the  clerk  of  the  papers,  or  prothonotaries  ;  and  affidavits  of  increased 
costs,  with  the  master,  or  prothonotary ,{f )  who  taxes  them.  And  when 
an  affidavit  has  been  read  and  filed,  it  becomes  a  record  of  the  court,  and 
cannot  be  taken  off  the  file.(^)  In  the  Exchequer,  it  is  a  rule, (////)  that 
"all  affidavits,  to  be  used  on  any  special  application  to  the  court,  be  filed 
one  clear  day  before  the  application  is  made  ;  and  that  Avhere  a  notice  of 
motion  is  necessary  to  be  given,  the  filing  of  any  affidavit,  in  support  of 
the  application,  be  also  mentioned  at  the  foot  of  the  notice,  to  enable  the 
opposite  parties  to  obtain  a  copy  therefrom  :'\hh)  But  this  rule  does  not 
extend  to  tiie  filing  of  affidavits  of  mere  service  of  notice  of  motion. (/iA) 
It  is  also  a  rule,  in  the  Exchequer,  that  "  no  office  copy  of  any  affidavit 
filed  in  this  court,  be  received  and  read,  unless  such  office  copy  shall  have 
been  previously  examined,  and  signed  by  the  attorney  or  clerk  in  court 
making  the  same,  or  his  accredited  agent. "(iV) 

In  the  King's  Bench,  an  attachment  for  non-payment  of  costs,  and 

(/i)  4  Moore,  413.  (0  3  Price,  259. 

(k)  R.  H.  36  Geo.  III.  K.  B. ;  and  see  2  Chit.  Rep.  218. 

(/)  1  Chit.  Rep.  13G,  (o)  ;  and  see  7  Price,  700. 

(m)  2  Chit.  Rep.  14.  (n)  7  Durnf.  k  Enst,  315. 

(a)  N.  M.  9  Geo.  II.  K.  B.  (6)  R.  T.  2  W.  k  M.  rey.  2  C.  P. 

(c)  Antr,  64.  (rf)  Ante,  164,  179,  491. 

(«)  Anff.  241,  2.  (  f)  R.  11.  11  Geo.  II.  rey.  1,  C.  P. 

Iff)  2  Wils.  371. 

(hh)  R.  n.  1  .1-  2  Geo.  IV.  Excheq.  9  Price,  83. 

(tij  R.  E.  2  Geo.  IV.  Excheq.  9  Price,  298. 


497  OF  MOTIONS  AXD  RULES,  ETC. 

against  the  shorifF  for  not  returning  the  writ,  or  bringing  in  the,  body, 
may  be  moved  for  the  last  day  of  term. (7c)  And  where  the  rule  to  return 
the  writ  expires  on  the  last  day  of  term,  the  sheriff  is  attachable  in  the 
King's  Bench,  at  the  rising  of  the  court  on  that  day,  if  no  return  be  made 
before ;  and  the  rule  for  the  attachment  is  regular,  though  he  make  his 
return  on  a  subsequent  day  in  vacation,  before  he  is  actually  served  with 
the  rule,  and  though,  immediately  after  such  service,  he  tender  the  sum 
levied,  deducting  his  poundage. (/)  And  the  court,  we  have  seen,(w?n)  will 
permit  insolvents  to  be  brought  into  court  on  the  last  day  of  term,  when 
the  notices  expire  too  late  for  the  last  appointed  day.  But  the  master's 
report  cannot  be  moved  for  on  that  day,  without  previous  leave 
[  *498  ]  of  the  court,  except  in  ^extraordinary  cases,  and  upon  personal 
service  of  the  notice  :(«)  And  a  motion  for  a  rule  to  answer  the 
matters  of  an  affidavit  cannot  be  made,(6)  or  discussed, (<?)  on  the  last  day 
of  term,  or  any  motion  which  would  operate  as  a  stay  of  proceedings,(cZ) 
unless  it  appear  to  the  court  that,  under  the  circumstances,  it  could  not 
have  been  made  earlier, (e)  So,  the  courts  will  not,  on  the  last  day  of 
term,  hear  a  motion  for  a  rule  nisi  for  an  attachment,(/)  or  to  set  aside 
an  award  ilg)  nor  can  counsel  be  heard  on  that  day,  to  show  cause  against 
the  latter  rule,  but  the  same  must  be  enlarged,  and  made  a  peremptory 
for  the  next  ensuing  term.(7i) 

The  last  day  of  term  is  said  not  to  be  a  day  for  side-bar  rules,  in  the 
King's  Bench ;  though  it  seems  to  be  otherwise  in  the  Common  Pleas : 
and,  in  the  King's  Bench,  if  the  party  was  entitled  to  such  a  rule  before, 
he  may  take  it  out  on  the  last  day  of  term,  dated  as  of  the  preceding 
day.(^■)  A pj'ohibition  is  not  in  general  grantable  the  last  day  of  term: 
but  a  rule  may  be  obtained  on  motion,  to  stay  proceedings  till  the  ensuing 
term  ;{kk)  and  in  one  instance  it  was  granted  on  motion  the  last  day  of 
term,  leave  having  been  obtained  the  day  before,  to  move  it  then.(/Z)  A 
rule  nisi  for  a  criminal  information  against  a  magistrate,  for  misconduct 
in  the  execution  of  his  office,  ought  in  general  to  be  moved  for  within  the 
fii'st  term  after  the  supposed  offence ;  and  it  may  be  granted  at  the  end 
of  a  term,  against  a  magistrate  for  mal-practices  during  the  term  '.{mm)  or, 
where  no  assizes  have  intervened,  it  may  be  moved  for  in  the  seco7id 
term  :{n)  though  it  cannot  be  moved  for  so  late  in  that  term,  as  to  pre- 
clude the  magistrate  from  the  opportunity  of  showing  cause  against  it  the 
same  term.(o) 

In  the  Common  Pleas,  we  have  seen,(j;)  that  upon  writs  of  distringas, 
returnable  the  last  day  of  term,  the  plaintiff  might  formerly  have  moved, 
at  the  rising  of  the  court,  to  increase  issues  on  the  alias  or  pluries  dis- 

(k)  1  Bur.  651.  5  Bur.  2686.  Ante,  480. 

(I)  11  East,  591 ;  and  see  1  Chit.  Rep.  249.     Ante,  308,  481. 

(mm)  Ante,  378. 

(a)  1  Blac.  Rep.  311.    Per  Cur.  T.  40  Geo.  III.  K.  B. 

(6)  4  Bur.  2502.     1  Chit.  Rep.  744.  (c)  1  Chit.  Rep.  744. 

(d)  Id.  ibid.    2  Price,  143  ;  but  see  id.  143,  4. 

(e)  Leader  v.  Harris,  M.  37  Geo.  III.  K.  B.     Cas.  Pr.  C.  P.  130. 
(/)  3  Smith  R.  118.     Ante,  A81. 

(ff)  Nettleton  v.  Crosby,  H.  38  Geo.  III.  K.  B. 

(h)  R.  M.  36  Geo.  III.  K.  B. ;  and  see  1  M'Clel.  &Y.  393,  where  it  was  said  hy  JTuUock,  B., 
that  no  questions  on  awards  are  heard,  in  any  court  of  Westminster  Hall,  on  the  last  day  of 
term. 

(i)  Ante,  484.  (kk)  Latch,  7.     2  Rol.  Rep.  456. 

(//)  3  Bur.  1922.  (m)  7  Durnf.  &  East,  80. 

(n)  13  East,  270.  (o)  Id.  322.  (p)  Ante,  111,  312. 


OF  MOTIONS  AND  RULES,  ETC.  498 

tringas,  to  be  issued  in  case  of  non-appearance,  on  the  following  day; 
or  for  a  sale  of  the  issues,  to  pay  the  costs  of  the  writs  ;  or,  -svlien  a  rule 
to  bring  in  the  body  expired  on  the  last  day  of  term,  for  an  attachment 
for  not  bringing  it  in,  to  be  issued  on  the  following  day,  provided  bail 
should  not  then  bo  perfected,  or  the  defendant  rendered  in  their  dis- 
charge. But  in  that  court,  no  motion  for  an  attachment  can  be  made 
on  the  last  day  of  term,  except  for  non-payment  of  costs  on  the  protho- 
notary's  allocatur,  or  against  the  sherifi',(Y)  for  not  returning  the  writ  or 
bringing  in  the  body ;  nor  can  a  motion  be  made  on  that  day, 
for  a  rule  nisi  to  change  the  venue,  *unless  the  declaration  [  "499  ] 
was  delivered  so  late  in  the  term,  that  the  defendant  had  not 
an  opportunity  of  making  it  earlier.(art)  So,  that  court  will  not  enter- 
tain a  motion,  on  the  last  day  of  term,  for  the  amendment  of  fines  or 
recoveries,  or  any  of  the  proceedings  therein, (6)  or  on  any  subject  relating 
thereto  ;(f)  nor  will  they  set  aside  judgment,  if  the  dcfemlant  could  have 
applied  sooner  ;((^)  nor  a  motion  in  arrest  of  judgment,  without  previous 
notice  :(g)  And  Mr.  Justice  Twisden  used  to  cite  the  year  book  oi  IJdw. 
IV.  and  say,  they  were  to  hear  no  law  the  last  day  of  term.(/)  In  tho 
Exchequer,  the  court  will  not,  on  the  last  day  of  term,  grant  a  rule  to 
show  cause,  why  interlocutory  judgment  should  not  be  set  aside,  on  pay- 
ment of  costs,  unless  it  be  clearly  shown,  by  affidavit,  that  the  plaintiflF 
has  lost  an  opportunity  of  proceeding  to  trial :((/)  And  that  court  will  not 
hear  an  argument  on  demurrer,  on  the  last  day  of  term. (A) 

When  a  rule  nisi  is  moved  for,  the  party  called  upon  may  either  show 
cause  against  it  in  the  first  instance,  or  on  a  subsequent  day.  In  the  former 
case,  the  counsel  who  applied  for  the  rule  has  a  right  to  reply  in  support  of 
it  :{i)  In  the  latter,  the  rule  to  show  cause  is  drawn  up  for  a  particular  day 
in  term,  appointed  by  the  clerk  of  the  rules  in  the  King's  Bench,  or  second- 
aries in  the  Common  Pleas,  accoi'ding  to  the  place  where  the  transaction 
appears  to  have  happened,  upon  the  face  of  the  affidavits  on  which  the  rule 
was  obtained,  and  so  as  to  allow  the  party  called  upon  sufficient  time  to 
answer  the  application  :  If  in  town,  the  rule  in  the  King's  Bench  is  usually 
drawn  up  for  the  fourth  day,  exclusive  of  the  day  of  obtaining  it ;  if  in  the 
country,  for  the  sixth  day  in  near,  or  for  the  tenth  day  in  distant  counties, 
unless  it  be  otherwise  ordered  by  the  court,(/i:)  In  the  Common  Pleas,  Avhcn 
the  motion  is  pretty  much  of  course,  and  the  affidavits  short,  the  rule  in 
toion  causes  is  generally  drawn  up  to  show  cause  on  the  next  day  but  ono 
after  the  motion ;  but  if  the  affidavits  are  long,  or  the  matter  arises  in  the 
country,  the  rule  is  commonly  drawn  up  to  show  cause  in  about  a  week: 
and,  previous  to  the  day  of  showing  cause,  the  rule  should  be  duly  served. 
The  service,  we  may  remember,  cannot  be  on  a  Sunday  :{l)  And,  in  the 
King's  Bench,  "no  rules,  orders,  or  notices,  in  any  cause  or  matter  de- 
pending in  that  court,  shall  be  served,  nor  any  proceedings  or  pleadings 

{q)  CftS.  Pr.  C.  p.  51.     Pr.  Reg.  lOf,  S.  C. 
\aa)  Barnes,  480,  486,  489.     Pr.  Reg.  426,  Y. 

\b)  5  Taunt.  856.  6  Taunt.  652.  2  Marsh.  328,  S.  C.  R.  H.  60  Geo.  III.  &  1  Geo.  IV.  C.  P. 
4  Moore,  320.     2  Brod.  &  Bing.  122.     2  Chit.  Rep.  379. 

(c)  4  Moore,  1 13.     1  Bro.l.  &  Bing.  468,  S.  C.  {d)  Cas.  Pr.  C.  P.  130. 

(e)  Id.  106.     Pr.  Reg.  238.     Barnes,  247,  S.  C.  (/)  2  Salk.  624. 

{g)  13  Price,  225. 

(A)  M'Clel.  493  ;  but  see  13  Price,  247. 

(i)  4  Taunt.  690.  {k)  2  Chit.  Rep.  372. 

\l)  Ante,  218,481. 


499  OF  MOTIONS  AND  RULES,  ETC. 

delivereil  or  served,  later  than  ten  o'clock  at  night ;  and  any  service  or 
delivery  thereof,  after  that  hour,  shall  be  null  and  void;"(m)  but  tlie  ser- 
vice of  the  copy  of  a  writ  of  latitat,  &c.  is  not  within  this  rule.(n) 
[  *500  ]  In  the  Common  Pleas,  it  is  a  rule  that  "  all  *declarations  and  plead- 
ings shall  be  delivered,  all  demands  thereof  made,  and  all  notices 
given,  before  7i{ne  o'clock  in  the  evening  :"(a)  which  rule  has  been  applied 
to  a  notice  of  motion  for  judgment  as  in  case  of  a  nonsuit  •,{bb)  and,  in  the 
latter  court,  the  delivery  of  a  notice  sealed  up  in  a  letter,  before  wme 
o'clock  at  night,  in  the  absence  of  the  attorney  to  whom  it  was  addressed, 
was  holden  to  be  no  service,  but  from  the  time  when  the  letter  was 
opened.(c(?) 

To  bring  a  party  into  contempt,  a  copy  of  the  rule  must  be  personally 
served,  and  the  original  at  the  same  time  shown  to  ')a\m.{dd)  And  the  court 
of  King's  Bench  will  not  grant  a  rule  to  dispense  with  personal  service  of 
the  master's  allocatur  for  costs,  with  a  view  to  an  attachment,  on  an  affidavit 
that  the  defendant  keeps  out  of  the  way,  to  avoid  being  served. (e)  In  other 
cases,  the  same  degree  of  strictness  is  not  required  in  the  service  of  the  rule ; 
but  it  is  sufficient  to  leave  a  copy  of  it  with  the  person  representing  the 
party,  at  his  dwelling  house  or  place  of  abode :(/)  And,  in  the  King's 
Bench,  it  does  not  seem  to  be  necessary  to  show  the  original  at  the  time  of 
service  :{g)  but,  in  the  Common  Pleas,  it  seems  that  in  order  to  make  a  per- 
fect service  of  a  rule,  the  original  rule  must  be  sworn  to  have  been  shown 
to  the  party,  at  the  time  of  serving  the  copy.(7i)  It  is  not  the  practice,  how- 
ever, to  serve  enlarged  rules;  because  both  parties  are  before  the  court :(^') 
And  where  the  party  appears,  it  cures  all  irregularity  in  the  service  of  the 
rule.(^)  In  the  Exchequer,  an  affidavit  of  the  service  of  a  rule,  by  which 
it  is  not  intended  to  bring  the  party  into  contempt,  need  not  state  that  the 
original  rule  was  shown  at  the  time  of  service.  3  Younge  &  J.  30.  And,  in 
that  court,  all  notices  must  be  given  and  received  in  the  names  of  the  clerks 
in  court.(?)  When  a  rule  is  obtained,  to  set  aside  proceedings  for  irregu- 
larity, and  to  stay  proceedings  in  the  mean  time,  the  proceedings  are  sus- 
pended for  all  purposes,  till  the  rule  is  discharged  :(wim)  Therefore,  where 
the  plaintiff  took  an  assignment  of  the  bail-bond,  pending  a  rule  to  show 
cause  why  it  should  not  be  given  up  to  be  cancelled,  on  the  defendant's 
filing  common  bail,  the  court  of  King's  Bench  set  aside  the  assignment,  as 
having  been  made  too  soon.  But  when  a  defendant  obtains  a  rule  which 
stays  the  plaintiff's  proceedings,  he  is  not,  we  have  seen,(w?i)  entitled,  after 
it  is  discharged,  to  the  same  time,  for  taking  the  next  step,  as  he  had  when 
he  obtained  the  rule ;  though  the  defendant  in  such  case  should  have  a 
reasonable  time  allowed  him,  for  the  purpose  of  taking  his  next  proceed- 
ing :  and  the  whole  of  the  day  on  which  the  rule  is  disposed  of,  has  been 

(m)  R.  M.  41  Geo.  III.  K.  B.     1  East,  132. 
(n)  2  Chit.  Rep.  357.     1  Dowl.  &  Ryl.  1*72.     Ante,  168. 
(a)  R.  E.  10  Geo.  II.  C.  P.  {bb)  2  Taunt.  48. 

{cc)  3  Taunt.  234.     Ante,  261. 

{dd)  3  Durnf.  &  East,  351.     7  Dowl.  &  Ryl.  612  ;  but  see  2  Price,  2.     5  Dowl.  &  Rjl.  614. 
(e)  1  Cliit.  Rep.  503  ;  and  see  1  Dowl.  &  Rjl.  529. 
(/)  2  Price,  4. 

{g)  Belairs  v.  Poultncy,  E.  57  Geo.  III.  K.  B.  1  Chit.  Rep.  466,  7,  (<x) ;  but  see  2  Str.  877, 
semb.  contra. 

(h)  Barnes,  403.     Pr.  Reg.  264,  S.  C.  (i)  1  Smith  R.  199. 

(k)  Noel  ^  others  v.  E^jre,  T.  44  Geo.  III.  K.  B. 

(/)  1  Price,  385  ;  aud  see  5  Price,  559,  n. 

[mm)  4  Durnf.  &  East,  176.     Ante,  301.  (nn)  Ante,  301. 


OF  MOTIONS  AXD  RULES,  ETC.  500 

deemed  such  a  reasonable  time.(o)     And  if  the  court  direct  proceedings  to 
be  set  aside  on  terms,  as  the  payment  of  costs,  «S:c.  the  terms  arc 
considered  as  a  condition  precedent ;  and  till  they  *are  performed,  [  *501  ] 
the  proceedings  stand,  and  the  plaintiff  may  pursue  them,  -with- 
out applying  to  the  court,  (a) 

On  the  day  appointed  for  that  purpose,  the  party  called  upon  by  the 
rule, (J)  or  his  counsel  may  show  cause  against  it,  either  upon  or  without  an 
affidavit,  as  circumstances  require :  And,  in  showing  cause  against  a  rule,  the 
party  or  his  counsel  must  be  prepared  with  allidavits  in  supjjort  of  his  whole 
case;  and  cannot,  after  showing  cause,  come  on  another  day  in  the  same 
term,  with  better  affidavits. (c)  It  is  also  necessary,  that  an  office  copy 
should  be  taken  of  the  rule,  before  cause  is  shown,  and  of  the  affidavit  upon 
■which  it  was  granted  ;(rZ)  otherwise  counsel  cannot  be  heard:  And,  in  tho 
King's  ]>ench,  when  a  special  time  is  limited  in  any  rule,  before  which  any 
affidavit  is  required  to  be  filed,  no  affidavit  filed  after  that  time  can  be  made 
use  of  in  court,  or  before  the  master,  unless  it  appear  to  the  satisfaction  of 
the  court,  that  the  filing  of  such  affidavit  within  the  time  limited,  was  pre- 
vented by  inevitable  accident. (tf)  In  such  case  a  motion  should  regularly 
be  made,  on  the  day  limited  by  the  rule,  that  the  affidavits  may  be  filed 
7iunc  pro  tu)ic.{f)  But  affidavits  wdiich  ought  to  have  been  filed  a  iveck 
before  the  term,  may,  under  particular  circumstances,  be  read,  with  leave 
of  the  court,  though  filed  only  three  days  before  the  day  of  showing 
cause.(^)  And  when  no  particular  time  is  prescribed  for  filing  the  affi- 
davits, they  may  be  sworn  and  filed  at  any  time  before  showing  cause, 
though  after  the  day  appointed  by  the  rule.(A)  Previous  to  showing 
cause,  it  is  usual  to  deliver  over  the  affidavit  to  the  counsel  for  the  rule, 
•who  has  a  right  to  make  any  objection  appearing  on  the  face  of  it ;  and 
if  a  doubt  arise,  upon  the  statement  of  the  facts  contained  in  the  affidavit, 
it  is  inspected  by  the  judges,  or  read  by  the  officer  of  the  court. 

If  cause  be  not  shown  on  the  day  appointed,  the  counsel  for  the  party 
obtaining  the  rule  may  move,  the  next  day,  to  make  it  absolute  ;(z) 
■which  is  done  as  a  matter  of  course,  if  no  cause  be  shown,  on  an  affidavit 
of  service. (^)  So,  in  the  Common  Pleas,  if  a  rule  be  drawn  up  for  a  cer- 
tain day,  the  plaintiff  has  till  the  last  moment  of  that  day  to  show  cause, 
80  that  it  cannot  be  made  absolute  till  the  next  day.(/)  And,  in  the  latter 
court,  it  seems  that  cause  cannot  be  shown  after  the  day  appointed  by  tho 
rule ;  but  the  party  called  upon  must  wait  until  the  other  party  move  to 
make  it  absolute,  unless  notice  of  showing  cause  on  a  different  day  bo 
previously  given. (m)  In  the  Exchequer,  a  rule  to  show  cause  cannot  bo 
made  absolute,  till  the  next  day  after  that  on  which  cause  is  to  be  shown, 
even  although  it  have  been  enlarged  :(w)  And,  in  that  court, 
it  is  said  to  be  *necessary  to  give  the  opposite  party  notice  of  [  *502  ] 
an  application  intended  to  be  made,  to  discharge  a  rule  nisi,  for 

(o)  5  Barn.  &  Cres.  V71  ;  and  see  4  Barn.  &  Gres.  970.     1  Powl.  k  Ryl.  458,  S.  C. 
(a)  5  Taunt.  1.  {l>)  4  Taunt.  669. 

(c)  1  Chit.  Rep.  142 ;  and  see  5  rrice,  384.     M'Clel.  582. 

(d)  N.  M.  9  Geo.  II.  K.  B. 

(e)  R.  M.  36  Geo.  III.  R.  B. 

(/)  1  Chit.  Rep.  27.  (i?)  /</.  iUJ. ;  and  see  8  Moore,  523. 

[h)  1  Chit.  Rep.  27.  (a),  136. 

(i)  3  Price,  198.     Append.  Chap.  XIX.  ^  16. 

{k)  Append.  Chap.  XLX.  §  15.  (/)  2  Taunt.  174. 

(m)  Pr.  Reg.  263,  4.  (;»)  9  Price,  388. 


502  OF  MOTIONS  A^'D  RULES,  ETC, 

payment  of  costs  for  not  proceeding  to  trial. (a)  But  the  matter  fre- 
quently stands  over,  by  consent  of  parties,  or  for  the  accommodation  of 
counsel,  till  a  subsequent  day  ;  when  the  counsel  on  either  side  may  bring 
it  on,  by  moving  to  make  the  rule  absolute,  or  discharge  it :  though  if  not 
brought  on  or  enlarged  during  the  same  term,  it  is  of  no  effect,  unless 
revived,  as  it  may  be,  in  any  future  term,  upon  being  served  anew,  and 
motion  made  to  revive  it :  This  is  sometimes  done,  to  save  the  expense 
of  new  affidavits,  and  obviate  the  objection  of  its  being  a  second  attempt 
after  the  first  Avas  abandoned.  And  if  a  rule  nisi  has  been  discharged,  in 
consequence  of  a  mistake  of  counsel,  in  stating  the  terms  of  the  affidavits 
on  which  it  was  founded,  the  case  may  be  reheard  in  a  subsequent  term.  (6) 
After  the  determination  of  the  court  of  the  King's  Bench,  upon  a  rule 
nisi  for  a  mandamus,  the  question  cannot  be  again  discussed,  as  a  special 
case,  until  a  return  be  made  to  the  writ.((?) 

When  the  counsel  for  the  party  obtaining  the  rule  is  not  ready  to  sup- 
port it,  he  may  move  to  enlarge  the  rule  till  a  future  day,  in  the  same  or 
the  next  term ;  which  is  pretty  much  of  course,  when  it  is  in  his  own 
delay ;  but  otherwise  the  courts  will  not  enlarge  the  rule  without  consent, 
or  some  evident  necessity:  and  they  will  never  enlarge  the  plaintiff's  rule, 
when  it  would  have  the  effect  of  continuing  the  defendant  in  custody.  In 
like  manner,  when  the  counsel  for  the  party  called  upon  by  the  rule  is 
not  prepared  to  show  cause  against  it,  he  may  apply  to  enlarge  the  rule 
till  a  future  day ;  which  is  a  matter  of  right,  if  the  rule  was  not  served  in 
time,  so  as  to  give  the  party  an  opportunity  of  answering  it  ',{d)  but  other- 
wise the  courts  may  impose  upon  him  what  terms  they  think  proper  :  and 
if  the  rule  be  enlarged  to  the  next  term,  they  commonly  require  him  to 
file  his  affidavits  a  certain  number  of  days  before  the  term,  so  as  to  give 
the  adverse  party  an  opportunity  of  inspecting  them ;  in  which  case, 
however,  the  party  showing  cause  need  not  confine  himself  to  the  original 
affidavits,  but  is  at  liberty  to  read  any  affidavits  made  since  the  term, 
provided  they  were  filed  in  time.(e)  In  cases  of  executions,  and  other 
matters  requiring  an  early  decision,  the  courts,  towards  the  end  of  the 
term,  will  sometimes  enlarge  the  rule  till  a  day  in  vacation,  when  it  is  to 
be  brought  on  before  a  judge  at  chambers.  But  rules  for  judgment  as  in 
case  of  a  nonsuit  in  country  causes,  should  be  applied  for  early  in  an 
issuable  term,  in  order  that  the  plaintiff"  may  have  sufficient  time  to  show 
cause  in  the  same  term ;  or  the  court  will  enlarge  the  rule  till  the  next 
term,  and  not  permit  the  parties  to  discuss  it  at  chambers  :(/)  And  the 
court  will  not,  at  the  close  of  the  term,  grant  a  rule  nisi,  to  show  cause  at 

chambers,  when  the  party  could  have  earlier.  (^)  In  the  Common 
[  *503  ]  Pleas,  the  court  will  enlarge  *no  rule  for  showing  cause,  unless 

notice  be  given  of  motion  to  enlarge  such  rule,  and  affidavit 
made  of  such  notice  '.[aa)  And  in  that  court,  if  a  rule  be  enlarged,  it  may 
be  made  absolute  at  any  time  on  the  last  day  to  which  it  is  enlarged. (65) 
In  the  Exchequer,  upon  an  enlarged  rule,  the  affidavits  must  be  filed 

{a)  11  Price,  512.  {b)  1  Chit.  Rep.  445. 

(c)  T  Dowl.  &  Ryl.  708, 

\d)  2  Chit.  Rep.  372. 

(e)  Wrirjhtson  v.  Mason,  E.  27  Geo.  III.  K.  B.  (/)  1  Cliit.  Rep.  232. 

{g)  2  Chit.  Rep.  266, 

{aa)  N.  M.  2  Geo.  11.  C.  P.;  and  see  Cas.  Pr.  C.  P.  67. 

(M)  2  Tauat.  174. 


OF  MOTIONS  AND  RULES,  ETC.  503 

before  showing  cause,  although  it  be   not  so  expresscLl  iu  the  rule  of 
enlargement. (c) 

On  showing  cause  against  the  rule,  the  courts  cither  make  it  absolute, 
or  discharge  it ;  and  that,  either  •with,  or  without  the  costs  of  the  applica- 
tion, or  such  costs  are  directed  to  abide  the  event  of  the  suit.  But,  in 
the  Common  Pleas,  costs  cannot  it  seems  be  given,  on  refusal  of  a  rule  to 
show  cause. ((?(/)  "When  the  proceedings  are  regular,  and  the  a)>plication  is 
made  to  the  favour  and  indulgence  of  the  courts,  the  rule  to  show  cause  is 
commoidy  made  absolute,  on  payment  of  costs  by  the  party  applying;  but 
when  the  proceedings  are  irregular,  it  is  in  general  made  absolute,  with  costs 
to  be  paid  by  the  opposite  party,(ct;)  unless  the  rule  be  opposed  in  the  first 
instance  '-{ff)  And  when  a  rule  for  setting  aside  the  proceedings  drawn  up 
Avith  costs,  (as  is  commonly  the  case,)  if  it  be  made  absolute  generally,  the 
l)arty  obtaining  it  is  entitled,  by  the  terms  of  the  rule,  to  the  jtayment  of 
costs,  which  the  master  or  prothonotaries  will  tax  ;  and  if  they  are  not  paid 
on  demand,  the  courts  on  motion  will  grant  an  attachment.  But  if  a  rule 
nisi  be  granted  for  setting  aside  proceedings  for  irregularity,  without  say- 
ing with  costs,  and  this  rule  be  afterwards  made  absolute,  no  cause  being 
shown,  it  must  be  made  absolute  in  the  terms  in  which  it  was  moved,  without 
adding  costs. (^^)  And  though  the  rule  be  drawn  up  with  costs,  yet  the 
courts  will  sometimes,  though  rarely,  make  it  absolute  without  costs,(/t)  in 
Avhich  case  each  party  pays  his  own  ;  or  they  will  direct  the  costs  to  abide 
the  event  of  the  suit,  it  which  case  the  party  ultimately  succeeding  is  entitled 
to  them :  And  whenever  a  rule  is  drawn  up  with  costs,  and  the  courts  do 
not  mean  the  party  should  have  them,  they  will  mention  it.  In  the  Ex- 
chequer, it  has  been  ruled,  that  if  a  party  have  good  ground  for  opposing 
a  motion,  he  may  be  entitled  to  the  costs  of  opposing  it,  notwithstanding 
the  motion  has  been  granted. (?) 

If,  upon  showing  cause,  it  appear  that  there  was  no  ground  or  founda- 
tion for  the  rule,  the  courts  will  discharge  it,  with  costs  to  be  paid  by  the 
party  applying:  and  it  is  a  general  rule,  iu  the  King's  Bench,  that  in  all 
cases  where  a  rule  is  obtained  to  show  cause,  why  proceedings  should  not 
be  set  aside  for  irregularity  with  costs,  and  such  rule  is  afterwards  dis- 
charged generally,  without  any  special  direction  upon  the  matter  of  costs, 
it  is  understood  to  be  discharged  with  costs,  and  the  latter  rule  must  be 
drawn  up  accordingly.(/i:)  But  where  an  afTidavit  answered  a 
rule  nini,  for  *setting  aside  proceedings  for  irregularity,  with  [  *o04  ] 
costs,  but  was  written  in  a  cramped  and  slovenly  hand,  the 
court,  on  that  ground,  refused  to  grant  the  costs  of  the  application. (a) 
And  if  there  was  any  ground  for  the  rule,  and  it  is  not  drawn  up  with 
costs,  the  court  Avill  in  general  discharge  it  without  costs  ;{h)  or  they  will 
sometimes  order  the  costs  to  abide  the  event  of  the  suit :  And  where 
nothing  is  said  about  costs  in  the  rule,  or  by  the  courts  on  making  it  abso- 
lute, or  discharging  it,  they  are  considered  as  costs  in  the  cause,  and  must 
be  paid  to  the  party  ultimately  succeeding,  if  the  rule  he  made  before 

(c)  1  Youngc  &  J.  326. 

(dd)  2  Blac.  Rep.  769  ;  and  see  1  Man.  k  Ryl.  142. 

\ee)  1  Chit.  Rep.  398,  9,  j«  nolU.  (/)  2  Chit.  Rep.  241,  401. 

{gg)  Per  Cur.  U.  37  Geo.  III.  K.  B.  ;  and  see  I  Chit.  Rep.  398,  (a). 

(A)  Stcbbing  v.  Hunt,  1  Chit.  Rep.  384,  5,  in  nolis.     Id.  397,  399.  (i)  M'Clel.  10. 

(k)  R.  M.  37  Geo.  III.  K.  B.     7  Durnf.  &  East,  82.     4  East,  313.     1  Chit.  Rep.  13G,  399. 
499. 

(a)  8  Dowl.  &  Rjl.  114.  {b)  1  Chit  Rep.  399,  in  nolis. 


504  OP  MOTIONS  AND  RULES,  ETC. 

judgment  ■,{c)  but  if  it  be  not  made  till  afterwards,  they  depend  entirely 
on  the  rule;  and  if  nothing  be  said  therein  concerning  them,  each  party 
Avill  have  to  pay  his  own  costs.  If  a  party  obtain  a  rule  to  show  cause, 
requiring  two  things  with  costs,  although  he  be  clearly  entitled  to  one,  yet 
if  he  fail  as  to  the  other,  he  shall  not  have  costs  ;  for  the  adverse  party 
was  under  the  necessity  of  coming  into  court  to  resist  the  latter. 

In  the  King's  Bench,  particular  days  are  appointed  for  certain  business; 
as  Tuesday  and  Friday/,  which  are  called  paper  days,  for  going  through 
the  paper  of  causes,  wherein  conciliums  have  been  moved  for,  on  the  plea 
%\diQ^dM(\.Wednesday  and  Saturdai/^  for  transacting  business  on  the  crown 
side.  All  motions  or  rules  in  matters  of  length  or  consequence,  are  ap- 
pointed for  certain  days,  and  called  on  first  :{d)  And  special  cases  from 
the  assizes  should  regularly  be  set  down  for  argument,  within  the  first 
four  days  of  the  following  term.(e)  But  no  cause  can  be  set  down  for 
argument  on  the  first  paper  day,  or  on  the  four  last  days  of  business  in 
term :  Yet,  upon  the  day  which  would  otherwise  be  the  last  paper  day, 
common  things  may  be  set  down,  unless  it  be  the  last  day  of  term.  Spe- 
cial causes  are  to  be  entered  for  argument  with  the  clerk  of  the  papers, 
at  least  four  days  exclusive  before  the  day  of  argument ;(/)  of  which 
notice  should  be  forthwith  given  to  the  attorney  or  agent  on  the  other 
side  :  and  all  such  causes  must  be  argued  in  the  order  they  are  entered, 
and  not  adjourned  to  any  future  day,  by  consent  or  otherwise  ;  unless  the 
court  shall  for  reasonable  cause,  verified  by  affidavit,  upon  application 
made  by  either  of  the  parties,  their  attorney  or  agent,  at  least  two  days 
before  the  day  of  argument,  otherwise  order.(^)  The  paper  books,  in 
causes  entered  with  the  clerk  of  the  papers  for  argument  on  Tuesday, 
must  be  delivered  to  the  chief  justice  and  the  rest  of  the  judges,  on  the 
Saturday  preceding ;  and  those  entered  for  argument  on  Friday,  must 
be  delivered  on  Tuesday  preceding.  (7i) 

In  the  Common  Pleas,  if  a  special  case  be  made  at  nisi  prius,  it  may 
be  set  down  for  argument,  in  the  court  book  or  paper  kept  by 
[  *505  ]  the  *secondaries,  within  the  first /oMr  day  of  the  term,  as  a  mat- 
ter of  course  ;  but  it  cannot  be  set  down  afterwards,  without  a 
special  application  to  the  court :  And  it  is  a  rule  in  that  court,  that  no 
cause  be  put  in  the  book  to  be  argued,  after  the  last  day  of  arguments, 
unless  the  court  be  thereupon  moved,  and  shall  order  it. (a)     Also,  by  a 
rule  of  the  same  court,(6)  "  all  special  arguments  on  demurrers,  and  other 
special  arguments,  are  to  be  heard  on  the  day  next  before  the  sitting  day 
at  nisi  prius  in  Middlesex,  and  the  day  next  after  the  sitting  day  at  nisi 
prius  in  London,  and  on  no  other  days :"  and  no  argument  is  allowed  on 
the  first  four,  or  last  four  days  of  the  term.(cc)     All  special  cases  for 
argument  must  in  this  court  be  set  down  with  the  secondaries,  four  days 
exclusive   before  the  day  of  argument ;  which  is  done  on  producing  the 

(c)  Id.  559.     10  Moore,  97.  (d)  Pref.  to  Bur.  V. 

[e)  Per  Lord  Kenyon,  in  Cutler  v.  Powell.,  H.  35  Geo.  III.  K.  B.  Lord  Mansfield  wished  to 
relax  this,  which  is  the  old  rule ;  but  on  consideration,  the  court  of  King's  Beach,  in  the 
above  case,  thought  it  right  to  adhere  to  it :  And  in  M.  38,  Geo.  III.  this  rule  not  having 
been  observed,  the  court  directed  it  to  be  peremptory  in  future. 

(/)  See  a  former  rule  of  E.  1658.  [g)  R.  M.  30  Geo.  II.  K.  B.      1  Bur.  52. 

(h)  R.  T.  40  Geo.  III.  K.  B.     1  East,  131.  (a)  R.  T.  12  Geo.  I.  C.  P. 

[fj)  II.  M.  47  Geo.  III.  C.  P.  By  a  former  rule,  they  were  to  be  heard  on  Mondays  and 
Tlmrsdnys  only,  R.  H.  42  Geo.  III.  C.  P.     3  Bos.  &  Pul.  110.  ' 

[cc]  R.  T.  12  Geo.  I.  (a),  C.  P. 


OF  MOTIOXS  AND  RULES,  ETC.  505 

case,  signed  by  a  Serjeant  on  each  side,  with  a  motion  paper  for  a  con- 
cilium ;  and  the  rule  is  drawn  up,  and  cause  sot  down  at  tlic  same  time. 
Demurrers  are  set  down  in  like  manner  on  producing  the  entry  on  the 
roll ;  and  such  as  are  not  intended  to  be  argued  may  be  set  down  of  course, 
for  any  day  except  the  first  four  and  last  four  days  of  term ;  but  if  there 
be  not  four  days  between  the  day  of  setting  them  down  and  the  day  of 
argument,  the  court  must  be  applied  to  for  leave,  which  is  always  given, 
if  it  be  a  demurrer  merely  for  delay,  and  not  intended  for  argument ;  and 
they  may  even  be  set  down  for  the  last  day  of  tcrm.(f/)  The  paper 
books  in  this  court  are  required  to  be  be  delivered  to  the  lord  chief  jus- 
tice, and  the  other  judges,  two  days  (exclusive  of  the  day  of  such  deli- 
very,) before  the  day  on  which  the  causes  shall  liave  been  set  down  for 
argument  :(<')  And,  in  both  courts,  the  exceptions  intended  to  be  insisted 
upon  in  argument,  should  be  marked  in  the  margin. (/)  In  the  Exchequer, 
the  court  formerly  never  sat  on  the  plea  side  on  3Iondai/8  and  Thurinlays ; 
because  on  those  days,  until  a  late  act  of  parliament,(//^)  for  enabling  tiio 
Lord  Chief  Baron  for  the  time  being  to  sit  alone  in  e(|uity,  the  whole  court 
always  sat  in  the  Exchequer  chamber,  bearing  causes  in  equity.(/</t)  Since 
that  time,  the  ihvcQ  jyuisnc  Barons  sit  regularly  on  those  days,  as  well  for 
the  dispatch  of  the  ordinary  business  on  the  plea  side  of  the  court  as  for 
liearing  motions  in  equity,  unconnected  with  causes  pending  before  the 
Lord  Chief  Baron. (/Ji)  But  motions  in  causes  proceeding  to  a  hearing  be- 
fore the  Lord  Chief  Baron,  can  only  be  made  before  him,  when  sitting 
alone. (/) 

In  the  King's  Bench,  all  rules  enlarged  till  the  next  term, (A;)  and  rules 
for  new  trials  which  stand  over  from  one  term  to  another, (/)  are  entered  in 
the  peremptory  paper,  and  fixed  for  certain  days,  called  peremp- 
tory days  ;  *and  must  be  heard  upon  the  respective  days  for  which  [  *506  ] 
they  are  made  peremptory,  unless  special  ground,  by  affidavit  or 
otherwise,  be  shown  to  the  court,  for  postponing  such  rules. (a)  And  for 
enforcing  this  practice,  it  is  ordered,  that  "  no  rules  in  causes  entered  in  the 
peremptory  paper  be  enlarged  during  the  term,  or  put  off  from  the 
appointed  day,  by  consent  of  counsel,  or  the  attorneys  concerned  therein, 
without  previous  application  to,  and  special  leave  of  the  court."(^>)  In  the 
Common  Pleas,  enlarged  rules  are  set  down  in  the  peremptory  or  remanet 
paper,  for  each  of  the  first  four  days  of  the  term,  and  called  on  after  the 
common  motions  are  disposed  of.  All  rules  for  new  trials,  which  stand 
over,  are  set  down  in  the  same  paper,  and  proceeded  in  at  the  pleasure  of 
the  court :  And  such  matters  as  have  been  argued,  and  in  which  the 
court  have  not  given  judgment,  are  likewise  set  down  in  the  peremptory 
paper. 

If  a  rule  be  drawn  up  wrong  by  mistake,  the  courts  will  order  it  to  be 
set  right ;  or  it  may  be  discharged,  on  terms  ;(c)  or  if  made  absolute  or  dis- 

(d)  Imp.  C.P.     7  Ed.  300,  303,  4;  and  see  Barnes,  1G5.     2  Chit.  Rep.  372. 

\e)  R.  M.  49  Geo.  III.  C.  P.     1  Taunt.  412. 

(/)  R.  E.  2  Jac.  II.  revived  by  R.  II.  38  Geo.  III.  K.  B. ;  and  see  R.  II.  48  Geo.  III.  C.  P. 
1  Taunt.  203. 

(gg)  r.7  Geo.  Ill  c.  60.  {hh)  9  Price,  15. 

(t)  /(/.  ilnd. ;  and  see  4  Price,  309. 

(A)  R.  M.  30  Geo.  II.  R.  II.  6  Geo.  III.  R.  H.  15  Geo.  III.  R.  M.  17  Geo.  III.  K.  B. 
Pref.  to  Bur.  V.     1  Bur.  9.     3  Bur.  1842. 

{I)  1  Smith,  R.  198.  {a)  R.  H.  36  Geo.  III.  K.  B. 

(6)  R.  E.  41  Geo.  III.  K.  B.     1  East,  496.  (c)  8  Moore,  87. 


505  OF  MOTIONS  AND  RULES,  ETC. 

charged  by  surprise,  or  in  consequence  of  a  mistake  of  counsel,  in  stating 
the  terms  of  tlie  affidavits  on  -wliicli  it  was  founded(tZ)  the  courts  will  open 
it.  But,  in  the  King's  Bench,  if  any  cause  shall  have  been  moved  in 
court,  in  the  presence  of  the  counsel  of  both  parties,  and  the  court  shall 
have  thereupon  made  a  rule  between  them,  the  same  shall  not  be  again 
moved  contrary  to  such  rule,  under  peril  of  an  attachment  :(e)  And  the 
court  of  Common  Pleas  will  not  open  the  rule  for  an  attachment,  on  the 
mere  affidavit  of  the  party,  that  he  has  not  been  served;  at  least,  unless 
he  show  some  mistake  in  the  service :(/)  nor  will  they  rescind  a  rule,  on 
the  ground  that,  at  the  time  of  discussion,  the  parties  omitted  to  present 
to  the  notice  of  the  court,  a  statute  which  might  have  affected  its  deci- 
sion.((/)  In  the  Exchequer,  where  a  rule  iiisi  for  a  new  trial  having  been 
peremptorily  fixed  for  a  day  in  the  third  term  inclusive  after  being 
granted,  and  not  having  been  then  supported,  was  discharged,  the  court 
refused  to  open  it  in  the  ensuing  terra,  on  tlie  suggestion  that  instructions 
had  been  prepared,  and  intended  to  be  delivered  to  counsel,  in  the  pre- 
ceding term:(A)  And  if  that  court  open  a  rule,  made  absolute  on  the 
usual  affidavit  of  service,  to  give  the  party  an  opportunity  of  showing 
cause,  they  will  not  hear  affidavits,  sworn  after  the  day  on  which  the  rule 
had  been  made  absolute. (u) 

In  hearing  motions,  the  course  formerly  observed  in  the  King's  Bench 
was,  to  begin  every  day  with  the  senior  counsel  within  the  bar,  and  then 
to  call  to  the  next  senior  in  order,  and  so  on,  as  long  as  it  was  convenient 
to  the  court  to  sit ;  and  to  proceed  again,  in  the  same  manner,  upon  the 
next  and  every  subsequent  day,  although  the  bar  had  not  been  half,  or 
perhaps  a  quarter  gone  through,  upon  any  one  of  the  former 
[  *507  ]  days ;  so  that  *the  juniors  were  very  often  obliged  to  attend  in 
vain,  without  being  able  to  bring  on  their  motions,  for  many  suc- 
cessive days.(rt)  This  practice  bearing  hard  upon  junior  counsel.  Lord 
3Iansjield  introduced  a  different  rule,  which  has  ever  since  been  adhered 
to,  of  going  quite  through  the  bar,  even  to  the  youngest  counsel,  before 
he  would  begin  again  with  the  seniors  ;  though  it  should  happen  to  take 
up  two  or  more  days  before  all  the  motions  which  were  ready  at  the  bar 
upon  the  first  day,  could  be  heard. (5)  The  same  course  is  observed  in 
the  Common  Pleas ;  where  they  begin  with  the  king's  senior  serjeant, 
and  go  regularly  through  the  bar,  before  they  begin  again.  In  the  Ex- 
chequer, the  court  will  not  allow  more  than  two  motions  to  be  made  suc- 
cessively by  the  same  counsel,  till  they  have  gone  through  the  rest  of  the 
bar.(c) 

When  a  matter  comes  before  the  court  on  a  rule  to  show  cause,  as  on  a 
motion  for  a  new  trial,(tZc^)  in  arrest  of  judgment,  or,  in  the  King's  Bench,  to 

{d)  1  Chit.  Rep.  445.     Ante,  502.  [e)  R.  H.  3  Jac.  I.  K.  B. ;  and  see  2  Chit.  Rep.  265, 

(/)  1  New  Rep.  C.  P.  256;  and  see  5  Taunt.  628.         {g)  1  Bing.  398  ;  8  Moore,  462,  S.  C. 

\h)  1  M'Clel.  &  Y.  508.  {ii)  5  Price,  384.     Ante,  501. 

(a)  1  Bur.  57.  {h)  Id.  58.  (c)  4  Price,  345. 

\dd)  Iv.  Hilary  term,  1824,  the  chief  justice  intimated  to  the  bar  of  the  court  of  King's  Bench, 
that  as  it  was  of  high  importance  to  the  public,  and  to  the  suitors  in  the  particular  causes 
in  -uhich  rules  nisi  for  new  trials  had  been  granted,  that  those  rules  should  be  disposed  of 
during  the  term,  or  so  soon  after  as  possible,  the  court  would  wish  to  hear  only  one  counsel 
on  each  side:  They  therefore  requested,  that  ih^  juniors  in  each  case,  would  not  address 
Ihem,  after  ihciv  scnivr  had  been  heard,  unless  they  fell  that  he  had  omitted  some  important 
fact,  or  some  material  argument,  which  ought  to  have  been  presented  to  the  attention  of  the 
court.  They  did  not,  however,  mean  to  lay  down  a  rigid  rule,  that  they  would  bear  only 
one  counsel  on  each  side,  which  might  be  productive  of  inconvenience;  but  they  trusted  to 


OF    MOTIONS  AND  RULES,  ETC.  507 

quash  an  order  of  sessions,  &c.  all  the  counsel  are  heard  on  each  side;  tho 
counsel  who  show  cause  first,  and  then  tho  counsel  on  the  other  side  :  If 
there  arc  several  counsel,  the  senior  begins.  When  a  matter  comes  before 
the  court  on  a  rule  for  a  conciliam,  as  on  a  special  verdict,  or  special  case, 
demurrer,  writ  of  error,  or,  in  the  Kinj^'s  Bench,  on  a  motion  to  quash  a 
conviction,  kc.  one  counsel  only  (commonly  the  Junior,)  is  hoard  on  each 
side  :  And  as  there  is  only  one  plaintiff  in  ejectment,  to  whom  the  court  can 
look,  if  the  parties  separately  interested  choose  to  join  in  the  same  ejectment, 
their  interest  must  be  treated  as  one  and  the  same,  as  if  there  were  but 
one  plaintiff.(t')  So,  where  a  case  is  sent  out  of  Chancery,  for  the  opinion 
of  the  court  of  Common  Pleas,  tliey  will  only  hear  one  counsel  for  each 
separate  interest;  thouf^h  the  parties  who  have  a  common  interest,  be  placed 
adversely  to  each  other  in  the  suit.(/)  On  a  special  verdict  or  special  case, 
the  counsel  for  the  plaintiff  begins  first,(^)  or,  on  a  demurrer,  writ  of  error, 
or  motion  to  quash  a  conviction,  the  counsel  for  the  party  objecting :  the 
counsel  for  the  other  party  is  then  heard  in  answer,  and  the  counsel 
who  began  first  replies.  When  the  defendant  is  ^brought  up  for  [  *508  ] 
judgment  in  the  King's  Bench,  after  trial  in  a  criminal  case,  the 
defendant's  affidavits  are  first  read,  and  then  the  prosecutor's  affidavits ;  after 
which,  the  defendant's  counsel  are  first  heard,  and  then  the  prosecutor's 
counsel.  W^hen  he  is  brought  up  on  a  judgment  by  default,  the  prosecutor's 
affidavits  are  first  read,  and  then  the  defendant's  affidavits  ;  after  which  the 
prosecutor's  counsel  arc  first  heard,  and  then  the  defendant's  counsel.  But 
affidavits  are  not  admissible  to  aggravate  punishment  upon  a  conviction  for 
felony,  even  though  the  record  be  removed  into  this  court  :(a)  And  when 
there  are  no  affidavits,  the  defendant's  counsel  always  begin. (6)  Upon  an 
appeal  to  the  sessions,  against  an  order  of  filiation,  the  respondents  are  to 
begin  by  supporting  their  order,  as  in  all  other  cases. (c)  But  on  an  appeal 
against  a  poor-rate,  on  the  ground  that  the  appellant  was  over-rated,  the 
practice  at  the  sessions  requiring  the  appellant  to  begin  by  proving  his 
case,  which  the  appellant  refusing  to  do,  the  appeal  was  dismissed;  the 
court  refused  a  mandamus  to  the  sessions,  to  rehear  the  appeal  on  this 
objection. (tZ)  In  the  King's  Bench,  when  counsel  has  had  his  brief  in  due 
time,  and  is  accidentally  or  inadvertently  absent  at  the  time  the  common 
paper  is  called  over,  the  court  will,  on  his  moving  for  that  purpose,  allow 
him  to  take  judgment  as  if  he  had  been  present.(<3)  But,  in  the  Exchequer, 
if  counsel  on  either  side  appear  to  argue  a  special  case,  on  the  day 
appointed  by  the  rule  for  a  concilium,  and  the  counsel  for  tho  other  party 
do  not  attend,  the  counsel  in  attendance  will  be  heard,  and  the  court  will 
give  judgment  in  the  absence  of  the  other  counsel ;  and  they  will  not,  on 
any  occasion,  permit  the  case  to  be  opened  again,  for  the  purpose  of 
giving  the  counsel  who  may  have  been  absent  an  opportunity  of  arguing 
it :  the  necessary  attendance  of  counsel  in  another  court,  not  being  con- 

the  discretion  of  tho  bar,  not  to  occupy  their  time,  by  going  severally  through  the  whole 
case,  where  it  was  not  absolutely  necessary  to  the  interests  of  their  client.  A  similar  regu- 
lation was  stated  to  have  been  made  before,  in  the  time  of  lord  Ellciiborou<jh,  when  there 
was  an  arrear  of  rules  for  new  trials  ;  which  regulation  had  for  some  time  been  rigidly  ob- 
served, but  it  was  understood  that  it  would  not  be  permanent. 

(e)  6  Dowl.  &  Ryl.  204,per  JJayU;/,J.  (/)  2  Marsh.  413. 

Iff)  Barnes,  155.  (a)  6  Barn.  &  Gres.  148.     9  Dowl.  k  Ryl.  174,  179,  S.  C. 

(6)  R.  .M.  29  Geo.  III.  K.  B.  (c)  12  East,  50. 

((f)  6  Maule  &  Sel.  57.  (e)  2  Chit.  Kep.  402,  (a). 

Vol.  I.— 32 


508  OF  PETITIONS,  ETC. 

sidered  to  be  a  sufficient  reason  for  their  being  absent  from  this  court,  on 
the  da  J  appointed  for  an  argument  here.(/) 

After  a  special  argument  on  a  concilium^  it  is  usual  for  the  courts  to  call 
upon  each  of  the  counsel  or  Serjeants  concerned,  to  make  a  motion ;  which 
is  called  moving  for  their  argument :  but  it  seems  that,  in  the  King's 
Bench,  it  is  not  the  practice  to  call  upon  the  counsel  to  move  for  their 
argument  as  a  matter  of  course,  though  it  is  said  to  be  otherwise  in  the 
Common  Pleas.(^)  And  where  it  was  moved,  in  the  latter  court,  for  leave 
to  justify  bail,  after  two  Serjeants  had  moved  for  their  arguments,  the 
court  would  not  receive  this  motion,  till  the  paper  was  gone  through.(7i) 
On  motions  for  judgment,  without  argument,  on  paper  days  in  the  King's 
Bench,  one  shilling  is  paid  for  each  motion,  by  the  counsel  making  it,  to 
the  box;  which  is  called  box  money,  or  high  bar  money,  and  paid  by  the 
secondary  on  the  plea  side,  into  the  hands  of  the  clerk  of  the  junior  judge, 
in  order  to  be  by  him  paid  over  to  the  judges  of  the  court  in  equal  shares, 
to  be  disposed  of  by  them  for  such  charitable  purposes,  as  they 
[  *509  ]  in  their  ""discretion  shall  think  proper.(aa)  On  the  last  day  of 
term,  two  shillings  are  paid  in  that  court  for  the  first  motion, 
and  one  shilling  for  every  motion  afterwards.  In  the  Common  Pleas, 
there  are  no  payments  of  this  nature :  but,  on  entering  satisfaction  on  the 
roll,  it  is  usual  for  the  plaintiff  to  pay  one  shilling  for  every  hundred 
pounds  recovered  to  the  secondary,  who  pays  it  over  to  the  junior  judge's 
clerk,  by  whom  it  is  distributed  among  the  prisoners  in  the  Fleet  Prison. 

A  petition  is  usually  exhibited,  in  order  to  obtain  some  favour  or  relief, 
proceeding  from  the  court  or  a  judge,  &c.,  without  calling  upon  the  other 
party  to  show  cause  against  it ;  as  for  fri^oners  to  have  day  rules  allowed 
them  by  the  court  in  term  time  ;(55)  or  to  be  relieved  against  the  extortion 
of  gaolers,(c)  &c.,  or  discharged  from  imprisonment  under  the  Lords' 
act;(cZ)  or  for  'pawpers  to  be  admitted  to  sue  in  forma  pauperis  ;{e)  or 
infants  to  sue  hy  prochein  amy^  or  defend  by  guardian,{ff)  &c.  In  the 
case  of  prisoners,  the  petition  is  exhibited  to  the  cou7't ;  in  the  other 
cases,  to  a  judge  at  chambers ;  or  it  may  be  exhibited  to  the  master  of  the 
rolls,  for  an  original  writ  to  be  issued,  after  a  writ  of  error  on  a  judgment 
by  default,(^^)  or  for  amending  an  original  vfrit;{hh)  to  the  lo7'ds  of  the 
treasury,  for  the  plaintiff  to  obtain  money  levied  on  a  capias  utlagatum  ;{i) 
to  the  attorney-general,  for  the  allowance  of  a  writ  of  error,  where  the 
king  is  concerned  ',{k)  or  to  the  house  of  lords,  for  the  plaintiff  in  error  to 
return  a  writ  of  certiorari  out  of  the  regular  course,(Z)  or  to  have  the 
cause  appointed  for  a  short  day.(Z) 

Analogous  to  the  proceedings  in  court,  by  motion  and  rule,  is  the  prac- 
tice by  summons  and  order  at  a  judge's  chambers,  of  which  something  has 
been  already  said  in  a  preceding  chapter.(wj)  This  practice  seems  to  have 
arisen,  partly  from  the  overflowing  of  the  business  of  the  courts  in  term- 
time,  and  partly  from  the  necessity  of  certain  proceedings  being  had  in 

(/)  9  Price,  53 ;  but  see  1  Younge  &  J.  511,  536.  [g)  1  Wils.  76. 

{h)  Pr.  Reg.  265.  {aa)  R.  T.  32,  33  Geo.  II.  K.  B.     2  Bur.  867. 

{hb)  Ante,  374.     Append.  Chap.  XV.  §  57.  (c)  Ante,  232. 

\d)  Ante,  375,  &c.     Append.  Chap.  XV.  g  63. 

(«)  Ante,  97.    Append.  Chap.  IV.  ^  8.         (/)  Ante,  99,  100.    Append.  Chap.  IV.  §  11,  12. 

{gg)  Ante,  108.     Append.  Chap.  V.  §  33. 

(hh)  Post,  Chap.  XLIV.     Append.  Chap.  V,  §  36. 

\i)  Ante,  138.     Append.  Chap.  VII.  I  26.  {k)  Po.it,  Chap.  XLIV. 

(l)  Id.  Append.  Chap.  XLIV.  g  132.  (rre)  Chap.  XVIII.  p.  469,  &c. 


OF  THE  PRACTICE  BY  SUMMONS  AND  ORDER.  509 

vacation,  when  the  courts  are  not  sittinp; :  And  although  extremely 
burthensome  to  the  judges,  yet  it  manifestly  tends  to  the  advantage  of 
the  suitor,  the  case  of  tlie  practitioner,  and  tlie  general  advancement  of 
justice,  by  preventing  the  expense,  trouble  and  delay,  ^vhich  would  ensue, 
if  an  application  to  the  courts  were  in  all  cases  necessary. 

It  was  formerly  a  rule,  that  "  no  attorney  or  other  person,  should  be 
summoned  to  attend  any  justice  of  the  King's  Bcncli,  nor  any  matters  be 
transacted  before  such  justice  at  his  chambers,  or  elsewhere  out  of  court, 
during  the  sitting  of  the  court  at  West7ni7ister.{7i)  But  this  rule  has  been 
recently  discharged  in  the  King's  Bench  :(o)  and  it  is  now  the  prac- 
tice in  *all  the,courts,((i)  for  one  of  the  judges  to  attend  daily  at  [  *510  ] 
chambers,  during  term,  from  half  past  three  until  fvc  o'clock  :  in 
consequence  of  which,  the  evening  attendance  of  the  judges  at  chambers,  in 
term-time,  is  discontinued.  Also,  by  a  late  act  of  parliament,(/>)  "the  judges 
of  the  courts  of  King's  Bench  and  Common  Pleas,  and  barons  of  the  Ex- 
chequer at  Wcstminsto'j  and  the  justices  of  Chester,  are  authorized,  during 
their  respective  circuits  for  taking  the  assizes,  to  grant  such  and  the  like 
summonses,  and  make  such  and  the  like  orders,  in  all  actions  and  prosecu- 
tions depending  in  any  of  his  majesty's  courts  of  record  a,tWesimi7ister, 
in  which  the  issue,  if  brought  to  trial,  would  be  to  be  tried  upon  such  their 
respective  circuits,  as  if  such  justices  of  the  courts  of  King's  Bench,  &c., 
were  respectively  judges  of  the  court  in  which  such  actions  or  prosecutions 
are  depending,  although  such  respective  justices  of  the  courts  of  King's 
Bench,  &c.,  may  not  be  judges  of  the  court  in  Avhich  such  actions  or  prose- 
cutions are  depending;  and  such  summonses  and  order  shall  be  of  the  same 
force  and  effect,  as  if  such  justices  of  the  courts  of  King's  Bench,  &c.  were 
respectively  judges  of  the  courts  in  which  such  actions  or  prosecutions  are 
depending :  And,  for  the  purposes  of  this  act,  the  counties  palatine  of  Lan- 
caster, Durham  and  Chester,  shall  be  taken  to  be  counties  on  the  circuits 
of  the  respective  justices  of  the  courts  of  King's  Bench, (f)  &c."  The 
judges  of  the  courts  of  Great  Sessions  in  Wales,  are  also  authorized,  by 
statute  5  Geo.  IV.  c.  106,  §  11,  12,  to  make  rules  and  orders,  in  all  cases 
at  law,  when  the  said  courts  shall  be  sitting  in  any  county  within  their 
jurisdiction ;  and  also  in  all  cases,  both  at  law  and  in  equity,  when  the 
said  courts  shall  not  be  sitting  in  Wales,  to  hear  motions  and  petitions, 
and  make  rules  and  orders  thereon,  in  vacation,  and  out  of  the  jurisdiction 
of  the  said  courts. 

The  order  of  a  judge  is  sometimes  absolute  in  the  first  instance ;  as  to 
hold  to  bail, ((7)  to  charge  a  person  in  custody  on  a  criminal  account  with 
a  civil  action,  or  to  docket  a  roll  after  the  lapse  of  a  year,  &c.  And  where 
a  rule  is  drawn  up  in  term  time,  as  a  matter  of  course,  on  a  motion  paper 
signed  by  counsel,  as  to  bring  money  into  court,  to  change  tlie  venue,  to 
plead  several  matters,  as  for  a  special  jury,  or  view,  kc.  a  judge's  order 
may  be  had  in  the  first  instance,  in  the  King's  Bench,  for  the  clerk  of  the 
rules  to  draw  it  up  in  vacation,  on  producing  a  motion  paper  so  signed. 
So,  in  the  Common  Pleas,  a  judge's  order  may  be  obtained  in  the  first 

(n)  R.  M.  11  Geo.  I.  K.  B.;  and  see  R.  T.  14  Car.  II.  rrj.  2,  K.  B.     R.  II.  17  Geo.  II.  C.  P. 
(o)  R.  M.  2  Geo.  IV.  K.  B.     5  Barn.  &  Aid.  217. 

(a)  5  Barn.  &  Aid.  217.     Notice,  M.  3  Geo.  IV.  C.  P.  &  Excbeq.     7  Moore,  4G0.     11  Price, 
422. 
(6)  1  Geo.  IV.  c.  55,  §  5 ;  and  see  1  Car.  &  P.  133,  n.  (o)  §  6. 

(<f)  Append.  Chap.  X.  §  87. 


510  OF  THE  PRACTICE  EY  SUMMONS  AND  ORDER. 

instance,  for  the  secondaries  to  draw  up  a  rule  in  vacation,  to  bring  money 
into  court,  or  for  a  special  jury,  on  producing  a  motion  paper  signed  by  a 
sergeant ;  for  in  these  cases,  a  sergeant's  hand  would  be  sufficient  in  term 
time:  but  in  the  other  cases,  of  changing  the  venue,  &c.  where  an  appli- 
cation must  be  made  to  the  court  in  term,  a  summons  must  first  be  served 
in  vacation,  for  the  secondaries  to  be  at  liberty  to  draw  up  the  rule.  An 
order,  however,  is  in  general  preceded  by  a  summons,  for  the  at- 
[  *511  ]  tendance  *of  the  attorney  or  agent  of  the  opposite  party,  before 
a  judge  at  chambers,  to  show  cause  against  it :  And  where  a 
judge  has  upon  hearing  a  party  on  summons,  refused  an  order,  an  appeal 
can  only  be  made  to  the  court. (a)  In  some  cases,  a  judge's  order  is  drawn 
up,  in  default  of  appearance,  on  the  first  summons ;  as  for  a  supersedeas 
to  discharge  the  defendant  out  of  custody  in  the  King's  Bench,  for  not 
declaring  against  him  in  due  time :  but  in  general,  there  must  be  three 
summonses,  and  an  affidavit  of  attendance  thereon,(5)  before  the  judge 
will  make  an  order  for  non-attendance. (cc)  And  in  vacation,  when  the 
court  is  not  sitting,  some  things  are  allowed  to  be  done  by  a  judge  at  cham- 
bers, which  in  term  time  must  be  moved  in  court;  as  to  enter  up  judg- 
ment on  a  warrant  of  attorney,  above  one  and  under  ten  years  old,  or  to 
refer  it  to  the  master,  or  prothonotary,  to  compute  principal  and  interest 
on  bills  of  exchange,  or  promissory  notes,  kQ.:[dd)  in  the  former  case,  the 
order  is  granted  in  the  first  instance;  but  in  the  latter,  it  is  preceded  by 
three  summonses.  A  judge  at  chambers  will  not  set  aside  an  execution,  or 
other  act  of  the  court;  but  where  the  justice  of  the  case  requires  it,  he 
will  stay  the  proceedings  thereon  in  vacation,  to  give  the  party  an  oppor- 
tunity of  applying  to  the  court  in  the  ensuing  term. 

A  judge's  order  for  a  stay  of  proceedings,  must  be  drawn  up  and  served 
forthAvith  ;  otherwise  it  will  be  considered  as  waived  by  the  party,  by  whom 
it  has  been  obtained.(e)  The  order  obtained  upon  a  summons  is,  however, 
subject  to  an  appeal,  and  the  validity  of  it  may  be  impeached  in  two  ways  ; 
either  by  moving  the  court  to  set  it  aside,(/)  or,  if  made  in  vacation,  by 
applying,  in  the  next  term,  to  set  aside  the  proceedings  that  have  been  had 
under  it.(^)  But  if  the  order  be  acquiesced  under,  it  is  as  valid  as  any 
act  of  the  court  :(7i)  And,  in  the  King's  Bench,  a  judge's  order  for  a 
prisoner's  discharge  under  the  Lord's  act,  made  out  of  term,  has  been  held 
to  be  final.(e)  Indeed,  if  it  become  necessary  to  enforce  a  judge's  order 
by  attachment,  or  other  act  of  the  court,  there  must  be  a  previous  motion 
to  make  it  a  rule  of  court. (y^) 

(a)  5  Taunt.  850;  and  see  1  Chit.  Rep.  124,  232,  246,  {a), 
{b)  Append.  Chap.  XVIII.  g  14  15.  [cc)  Ante,  369. 

{(Id)  Ante,  486. 

(e)  4  Barn.  &  Cres.  865.     7  Dowl.  &  Ryl.  422.  S.  C.  [f)  I  Chit.  Rep.  246. 

(^r)  4  Bur.  2569.  (h)  1  Taunt  47. 

({)  Doug.  68.  Webster  v.  Wilkinson,  H.  26  Geo.  III.  K.  B.  3  Moore,  64.  Jameson  v.  Eaper, 
id.  65,  (a).     Ante,  382. 

(k)  4  Bur.  2569.    Fer  Ld.  Eenyon,  in  Curtis  v.  Taylor,  E.  35  Geo.  III.  K.  B. 


OF  SETTING  ASIDE,  AND  STAYING  PROCEEDINGS.        *512 

♦CHAPTER    XX. 

Of  SETTING  ASIDE,  and   STAYING    rilOCEEDINGS. 

Having  stated,  in  tlio  preceding  chapters,  the  various  modes  of  com- 
mencimj  actions,  and  the  proceedings  therein  to  tlie  dechiration,  on  behalf 
0^  iho  ])laintiff,  with  the  time  allo^Yed  for  pleading  in  ordinary  cases,  and 
whatever  is  peculiar  to  the  proceedings  in  actions  by  or  against  attorneys^ 
and  against  prisoners  in  custody  of  the  sheriff,  kc.  or  of  the  marshal  or 
warden;  and  having  taken  a  view  of  the  means  of  removiny  actions  from 
inferior  courts,  and  of  motions  and  rules  in  general,  and  the  practice  by 
summons  and  order  at  a  judge's  chambers,  I  shall  next  proceed  to  show 
what  is  to  be  done  by  the  defendant,  when  an  action  is  brought  against 
him ;  and  in  so  doing  shall  consider  first,  in  what  case,  and  upon  what 
grounds,  he  may  move  the  courts  to  set  aside  or  stay  the  proceedings : 
secondly,  what  steps  arc  to  be  taken  by  him,  when  he  has  no  merit?  ;  and 
thirdly,  if  he  has,  in  what  manner  he  should  prepare  for  and  make  his  de- 
fence to  the  action,  which  will  lead  on  to  the  consideration  of  p/cas  and 
pleading,  &c.  Upon  a  review  of  which  it  will  appear,  that  the  defendant, 
according  to  the  circumstances  of  his  case,  either  applies  to  the  equitable 
jurisdiction  of  the  court  by  motion,  or  relies  on  his  legal  ground  of  defence, 
by  pleading  it. 

In  the  defence  of  an  action,  one  of  the  first  things  to  be  attended  to,  on 
the  part  of  the  defendant,  is  the  regularity  of  the  proceedings  ;  for  if  they 
are  irregular,  the  courts,  on  motion,(a)  will  set  them  aside. 

An  irregularity  may  be  defined  to  be,  the  want  of  adherence  to  some 
prescribed  rule  or  mode  of  proceeding ;  and  it  consists,  either  in  omitting  to 
do  something  that  is  necessary  for  the  due  and  orderly  conducting  of  a  suit, 
or  doing  it  in  an  unseasonable  time,  or  improper  manner.     Thus,  the  want 
of  notice  is  an  irregularity,  whether  it  be  to  process,  upon  a  declaration,  or 
of  trial  or  inquiry :  so,  if  the  notice  be  not  given  in  due  time,  or  a  proper 
manner.     In  general,  an  irregularity  is  either  in  mesne  process,  or  the  pro- 
ceedings thereon  before  judgment,  or  in  the  judgment  or  execution.     If 
there  be  any  irregularity  in  the  process,  or  notice  to  appear  thereto,  or  in 
the  delivery,  filing  or  notice  of  declaration,  or  notice  of  trial  or  inquiry, 
the  defendant,  we  have  seen,(^)  may  move  the  court,  on  a  proper 
affi,davit,{c)  to  set  aside  the  proceedings,  and,  if  in  custody,  for  [  *ol3  ] 
his  *discharge  on  filing  common   bail,  or  entering   a  common 
appearance ;  or,  if  he  has  given  bail  to  the  sheriff,  that  the  bail  bond  may 
be  delivered  up  to  be  cancelled.     A  judgment  by  default  is  irregular, 
when  the  defendant,  in  an  action  not  bailable,  has  not  been  served  with 
a  copy  of  process,  or  there  has  been  no  declaration  regularly  delivered 
or   filed,  and  notice  thereof  given  to  the   defendant  •,{aa)  or  when  it  is 
signed  before  the  defendant's  appearance,  or  without  entering  a  rule  to. 

(a)  For  notices  of  motion,  to  set  aside  proceedings  for  irregularity,  see  Append.  Chap. 
XX.  2  1,2,3,4. 

(b)  Ante,  488. 

(c)  Append.  Chap.  XX.  J  5.     And  for  the  rule  niti  thereon,  see  id.  §  G,  and  the  notice  to 
plaintiff,  not  to  nrnke  it  absolute,  id.  I  1. 

{aa)  4  Taunt.  818. 


513  0^  SETTING  ASIDE,  AND 

plead,  or  demanding  a  plea,  when  necessary ;  before  the  time  for  pleading 
is  expired ;  or  after  a  plea  has  been  regularly  delivered  or  filcd.(6Z')  And 
when  an  execution  is  irregular,  the  defendant  may  move  to  set  it  aside ; 
and  that  he  be  discharged  out  of  custody,  or  that  the  money  levied  may 
be  restored  to  him.(<?c) 

The  application  to  set  aside  proceedings  for  irregularity,  should  be  made 
as  early  as  possible,  or  as  it  is  commonly  said,  in  the  first  instance  ;((^)  and 
when  there  has  been  any  irregularity,  if  the  party  overlook  it,  and  take  sub- 
sequent steps  in  the  cause,  he  cannot  afterwards  revert  back  to  the  irregu- 
larity, and  object  to  it.(e)  If  there  be  any  defect  or  irregularity  therefore  in 
mesne  process,  or  the  notice  subscribed  thereto,  or  in  the  service  of  process, 
the  defendant  should  take  advantage  of  it  before  he  has  appeared :(/)  And 
if  the  irregularity  be  in  the  delivery,  filing  or  notice  of  declaration,  the  ap- 
plication should  be  made,  if  possible,  tico  days  at  least  before  the  time 
appointed  for  the  execution  of  the  writ  of  inquiry.(^)  Irregularity  in  the 
service  of  process,  however,  is  waived  by  the  defendant's  attorney  having 
written  to  the  plaintiff's  attorney,  after  the  process  was  served,  undertaking 
to  appear,  receive  a  declaration,  and  give  security  for  costs  ;(7i)  or  by  the 
defendant's  paying  the  debt  and  part  of  the  costs,(i)  or  admitting  the  debt 
subsequently  to  the  service  of  the  writ,  and  requesting  time  for  the  payment 
of  \t.{k)  So,  where  the  service  of  a  writ  is  irregular,  but  the  defendant,  on 
receiving  notice  of  declaration,  says,  "  it  is  all  right ;  I  will  call  and  settle 
the  debt  and  costs ;"  the  irregularity  is  waived ;  1  Man.  &  Ryl.  320.  And, 
by  taking  the  declaration  out  of  the  office,  or  obtaining  time  to  put  in  bail  to 
the  action,  the  defendant,  we  have  seen,(Z)  waives  all  objections  to  the  regu- 
larity of  the  process  ;  the  intent  of  which  is  only  to  bring  him  into  court. 
But  this  it  seems  is  only  a  waiver  of  irregularities  in  the  process,  and  not  in 
the  declaration. (w)   Yet,  where  the  plaintiff  declared  by  the  lye,  before  he 

had  declared  in  chief,  it  was  holden,  that  taking  the  declaration  by 
[  *514  ]  the  bye  out  of  the  office,  was  a  *waiver  of  the  irregularity.(rt)     So, 

where  the  declaration  was  delivered  at  the  same  time  as  a  bill  of 
particulars  which  was  insufficient,  and  another  order  was  afterwards  ob- 
tained for  better  particulars,  the  court  of  Common  Pleas  held,  that  as  the 
defendant's  attorney  had  not  returned  the  declaration,  with  the  insufficient 
particulars,  he  had  waived  the  irregularity  -.{b)  And  if  the  plaintiff  take  a 
plea  out  of  the  office,  and  keep  it,  he  waives  any  objection  to  the  plea,  on 
the  ground  of  its  having  been  pleaded  by  a  new  attorney,  without  an  order 
to  change  the  former  one.(c)   In  proceeding  against  prisoners,  an  irregula- 

ihb)  Id.  545.  {ec)  Ante,  489.     Append.  Chap.  XX.  ?  3,  4. 

(d)  3  Durnf.  &  East,  7.     1  East,  335,  8  Dowl.  &  Ryl.  450.     9  Price.  637. 

(e)  1  East,  77 ;  and  see  3  Durnf.  &  East,  10.  5  Durnf.  &  East,  254,  464.  1  East,  330. 
2  Smith  R.  391.  2  Chit.  Rep.  236,  7.  6  Barn.  &  Cres.  76.  9  Dowl.  &  Ryl.  124,  S.  C.  6 
Barn.  &  Cres.  77,  {b).  9  Dowl.  &  Ryl.  18,  K.  B.  1  H.  Blac.  251.  1  Bos.  &  Pul.  250,  344. 
1  Taunt.  59.  2  Taunt.  244.  4  Taunt.  545.  6  Taunt.  6.  1  Marsh.  403,  S.  C.  6  Taunt. 
185.     1  Moore,  299,  C.  P.     9  Price,  637.     11  Price,  122,  Excheq. 

(/)  Ante,  160,  61. 

[g)  2  Smith  R.  391.     2  Chit.  Rep.  237.     Cas.  Pr.  C.  P.  69,  145.     Pr.  Reg.  127,  242,  S.  C. 
Barnes,  255,  6.     2  New  Rep.  C.  P.  75  ;  and  see  N.  M.  2  Geo.  II.  C.  P.     6  Price,  15. 
(h)  1  Chit.  Rep.  129 ;  and  see  2  Chit.  Rep.  236.     1  Man.  &  Ryl.  320,  21,  (6). 
\i)  11  Price,  122. 

(k)  7  Moore,  461.     1  Ring.  132,  S.  C.  {I)  Ante,  160. 

(h»)  2  New  Rep.  0.  P.  83  ;  and  see  4  Durnf.  &  East,  349. 
(«)  3  East,  342.     A7ite,  424,  5,  {I). 

[b)  2  Moore,  90 ;  and  see  id.  655.     8  Taunt  592,  S.  C. 

(c)  2  New  Rep.  C.  P.  509. 


STAYING  PROCEEDINGS.  514 

rity,  we  have  seen,  may  be  waived  by  the  defendant's  pleading,((?)  letting 
judgment  go  by  default, (c)  or  suffering  the  plaintiff  to  charge  him  in  execu- 
tion.(/)  But  the  giving  of  a  bail  bond,(//)  or  paying  or  giving  security  for 
the  debt,(/<)  by  a  defendant  under  arrest,  will  not  operate  as  a  waiver  of  the 
irregularity  :  And  where  the  defendants  had  appeared  to  a  scire  facias^ 
after  a  rule  nisi  had  been  obtained  for  setting  aside  proceedings,  for  irregu- 
larity, the  court  held,  that  the  rule  having  been  obtained  tiie  last  day  of 
term,  which  was  no  stay  of  proceedings,  the  defendants  were  obliged  to 
appear,  and  therefore  it  was  no  waiver.(t)  The  defendant's  pleading, 
however,  to  the  scire  facias,  would  in  such  case  be  a  waiver  of  the  irrcgu- 
larity.(/(:) 

In  the  King's  Bench,  it  is  a  rule  to  refuse  motions  to  set  aside  process  for 
irregularity,  even  though  no  new  step  has  been  taken  in  the  cause,  unless 
the  defendant  make  his  application  in  a  reasonable  time.(^)  But,  in  tho 
Common  Pleas,  a  defendant  may  move  to  set  it  aside  at  any  time  before  a 
new  step  is  taken  in  the  cause. (w)  And  this  was  formerly  considered  as 
necessary  ;  it  being  holdcn,  that  a  defendant  who  complained  of  an  irregula- 
rity in  process,  must,  if  he  had  an  opportunity,  have  applied  to  set  it  aside, 
before  the  plaintiff  had  taken  any  further  step.(n)  But  where  the  plaintifif 
having  served  an  irregular  process,  the  defendant  gave  him  notice  of  the 
irregularity,  and  that  if  he  proceeded  thereon,  the  defendant  would  move  to 
set  aside  the  proceedings,  this  was  deemed  an  exception  to  the  ordinary 
rule.{o)  And  now,  according  to  later  decisions,  the  court  of  Common  Pleas 
will  not  bind  the  defendant  to  any  particular  time  for  applying  to  set  aside 
the  proceedings  ;  nor  refuse  the  application,  unless  the  party  who  has  served 
the  defective  process  take  some  step,  by  which  he  shows  that  he  means  to 
proceed  upon  it;(/))  in  which  case,  they  expect  the  application  to  be  made 
immediately  :{p)  Therefore,  where  a  defendant  has  been  *served 
with  notice  of  declaration,  and  interlocutory  judgment  signed,  [  *515  ] 
and  notice  given  of  executing  a  writ  of  inquiry,  he  is  too  late 
to  take  advantage  of  a  defect  in  the  process.(aa)  And  though  an  appear- 
ance entered  by  the  plaintiff,  according  to  the  statute,  is  not  of  itself  suffi- 
cient, in  the  Common  Pleas,  to  cure  a  mistake  in  the  service  of  process,(J) 
yet  if  notice  be  afterwards  given  to  the  defendant,  of  the  declaration 
being  filed  he  must  apply  to  the  court  before  judgment.((;)  In  the  Exche- 
quer, the  application  to  set  aside  proceedings  for  irregularity,  ought  to 
be  made  in  the  first  instance ;  and  where  the  party  cannot  satisfactorily 
account  for  not  applying  sooner  than  he  docs,  the  court  will  not  assist 

(d)  Ante,  357. 

(e)  Ante,  345.  (/)  Ante,  357. 
\g)  7  Durnf.  &  East,  375 ;  but  see  4  Moore,  317.     1  Brod.  &  Bing.  529,  S.  C. 

(A)  1  Chit.  Rep.  468.  (i)  6  East,  462 ;  and  see  13  East,  588. 

{k)  1  Dowl.  &  Ryl.  181. 

(/)  6  Taunt.  191,  2.  1  Marsh.  551,  S.  C.  per  CM.i,  Ch.  J.  Peargon  v.  Uodggon,  M.  55  Geo. 
III.  K.  B.  1  Chit.  Rep.  14,  (6).  6  Taunt.  6.  1  .Miirsh.  403,  S.  C.  1  Moore,  300.  6  Barn. 
&  Cres.  76.  9  Dowl.  &  Ryl.  124,  S.  C.  6  Barn.  &  Cres.  77  (i).  9  Dowl.  &  Ryl.  18 ;  but 
Bee  2  Chit.  Rep.  165. 

Im)  6  Taunt.  5.     1  Marsh.  403,  S.  C.     1  Chit.  Rep.  14,  (6). 

(n)  2  Taunt.  243.  (o)  5  Taunt.  330. 

\p)  6  Taunt.  191,  2.  1  Marsh.  551,  S.  C. ;  and  see  1  H.  Blac.  251.  5  Taunt.  664.  1 
Moore,  299.     2  Moore,  654.     8  Taunt.  591,  S.  C.     Forrest,  31. 

{aa)  6  Taunt.  191.     1  Marsh.  550,  S.  C. 

(6)  Barnes,  409.     1  Moore,  299.     Ante,  \(i\,  {d). 

(c)  Barnes,  242,  3  j  256,  2C9,  296.     Pr.  Reg.  32,  355.     Cas.  Vr.  C.  P.  92,  105,  145,  S.  C. 


515  OF  SETTING  ASIDE,  AND 

him  :{d)  and  it  is  said  to  be  a  rule,  that  all  motions  to  annul  proceedings, 
on  the  ground  of  irregularity,  should  be  made  the  same  term  with  the 
proceedings  complained  oL[e)  In  disposing  of  a  rule  7iisi,  for  setting 
aside  all  proceedings  subsequent  to  the  writ  of  guo  minus,  and  service 
thereof,  and  staying  all  further  proceedings,  on  payment  of  the  debt  and 
costs  of  the  writ  and  service,  that  court  would  not  give  an  opinion  on  the 
alleged  unreasonableness  of  an  attorney's  bill,  stated  as  the  sole  ground 
for  supporting  the  rule  ;  that  being  a  proper  subject  of  reference  to  the 
master :  nor  would  they  make  such  reference  a  part  of  the  order  for  dis- 
charging the  original  rule.(/) 

There  are  some  distinctions  deserving  notice,  between  a  mere  irregula- 
rity, and  a  complete  defect  in  the  proceedings :  The  former  may  be  waived 
by  the  adverse  party,  but  not  the  latter. (_g)  For  a  mere  irregularity  in  the 
copy,(/i)  or  service,(2)  of  process,  or  in  the  declaration, (^)  &c.  the  courts 
will  only  set  aside  the  proceedings  that  are  irregular,  leaving  the  plaintiflf 
at  liberty  to  continue  his  suit  from  the  last  regular  proceeding  ;(Z)  but  for 
a  complete  defect,  the  proceedings  are  stayed  in  toto.{m)  On  setting 
aside  proceedings  for  irregularity,  the  party  complained  of  is  in  general 
liable  to  the  payment  of  costs,(?i)  unless  the  rule  be  opposed  in  the  first 
instance  ;(o)  but  on  staying  them  as  defective,  the  costs  are  in  the  discre- 
tion of  the  court. 


Though  the  proceeding  are  regular,  yet  it  sometimes  happens  that  they 

are  defective,  as  where  the  cause  of  action  is  frivolous,  or  the  action 

[  *516  ]   *brought  or  conducted  upon  insufficient  grounds,  contrary  to  good 

faith,  or  without  proper  authority :  and  in  such  cases,  the  courts 

on  motion  will  order  the  proceedings  to  be  stayed,  with  or  without  costs, 

according  to  circumstances. 

When  the  debt  sued  for,  appears  on  the  face  of  the  declaration, (a)  or  is 
admitted  by  the  plaintiff,  or  his  attorney,(6J)  or  proved  by  the  affidavit  of 
the  defendant, (cc)  to  be  nnder  forty  shillings,  and  the  plaintiff  may  recover 
it  in  an  inferior  jurisdiction,  the  courts  on  motion  will  stay  the  proceed- 
ings ;  it  being  below  their  dignity  to  proceed  in  such  an  action.  Formerly, 
when  the  plaintiff  demanded  more,  the  court  of  King's  Bench,  would  not 
have  permitted  an  affidavit  to  be  read,  that  the  defendant  owed  him 
less  •,{dd)  or  that  the  defendant  had  applied  to  the  plaintiff  for  his  demand, 

(^)  11  Price,  125.  (e)  3  Price,  37. 

(/)  2  M'Clel.  &  Y.  105. 

(ff)  5  Duruf.  &  East,  254.  3  East,  155.  4  Barn.  &  Aid.  288.  1  Bos.  &  Pul.  383,  (a).  2 
Bos.  &  Pul.  110,  589.  1  Taunt.  59.  5  Taunt.  664.  2  Price,  9,  but  see  6  Barn.  &  Cres.  76. 
9Dowl.  &  Ryl.  124,  S.  G.     6  Barn.  &  Ores.  77,  (6).     9  Dovvl.  &  Rjl.  18. 

(A)  1  Bing.  65.     7  Moore,  359,  S.  C.  [i)  5  Tauut.  651,  664. 

(k)  4  East,  589.     2  New  Rep.  0.  P.  82.     5  Taunt.  649.     1  Marsh.  274. 

(I)  Ilolloway  T.  Whalcy,  T.  41  Geo.  III.  K.  B. :  and  see  2  Chit.  Rep.  238.  5  Barn.  &  Aid. 
893. 

(m)  1  Chit.  Rep.  400.     2  Chit.  Rep.  237,  239. 

(«)  Cas.  temp.  Hardw.  314.  (o)  2  Chit.  Rep.  241. 

{a)  3  Bur.  1592. 

{bb)  2  Blac.  Rep.  754.     2  New  Rep.  C.  P.  84. 

{cc)  4  Duruf.  &  East,  495.  5  Durnf.  &  East,  64.  White  v.  Griffiths,  T.  35  Geo.  III.  K.  B.  ; 
and  see  1  Man.  &  Ryl.  322,  3,  (a). 

{dd)  Say.  Rep.  219,  240.     3  Bur.  1592.     2  Chit.  Rep.  395. 


STAYING  PROCEEDINGS.  616 

•who  sent  him  a  bill  for  goods,  to  the  amount  of  11.  18s.  :{c)  but  the  prac- 
tice has  been  since  altered  as  above,  agreeably  to  the  usage  of  the  court 
of  Exchequer.  In  the  latter  court  however,  on  a  motion  to  set  aside  pro- 
ceedings as  infra  dignitatem^  on  an  affidavit  that  the  debt  sued  for  does 
not  amount  to  40«.,  the  court  will  not  inijuirc  into  the  amount,  if  an  affi- 
davit be  put  in,  on  showing  cause,  that  the  demand  exceeded  that  sum; 
but  will  at  once  discharge  the  rule  with  costs.(/)  And  it  should  be  ob- 
served, that  an  action  cannot  be  brought  in  the  county  court,  unless  the 
cause  of  action  arise,  and  the  defenclant  reside  within  tlio  county :(//) 
Therefore,  though  the  demand  be  for  less  than  forty  shilling,  if  the  cause 
of  action  arise  in  one  county,  and  the  defendant  reside  in  another,  the 
action  may  be  brought  in  a  superior  court. (//)  In  an  action  for  a  debt 
recoverable  in  a  court  of  requests,  where  the  plaintiff  might,  after  verdict, 
be  deprived  of  costs,  the  court  of  King's  Bench  will  stay  the  proceed- 
ings, on  payment  of  the  debt,  without  costs.  1  Man.  &  ]{yl.  321.  In 
trover^  the  Court  of  Common  Pleas  would  not  stay  proceedings,  on  an  affi- 
davit from  the  defendant,  that  the  cause  of  action  did  not  amount  to 
forty  shillings;  the  amount  of  the  value  of  the  articles  ought  to  be  reco- 
vered by  such  action,  being  mere  matter  of  calculation,  to  be  ascertained 
by  ajury.(7z)  And  where  a  defendant,  living  within  the  jurisdiction  of 
the  court  of  requests  for  Westminster,  was  sued  in  the  King's  Bench,  for 
a  debt  under  forty  shillings,  and  neglected  to  take  advantage  of  the  sta- 
tute 23  Geo.  II.  c.  27,  by  pleading  it  in  bar,  the  court  would  not,  after 
verdict  for  the  plaintift",  either  suffer  a  suggestion  to  be  entered  on  the 
record,  that  the  defendant  lived  within  the  jurisdiction,  or  stay  the  pro- 
ceedings.(e)  So,  where  a  cause  has  been  removed  from  an  inferior  court, 
this  court  will  grant  a  ijrocedendo,  if  the  debt  or  damages  appear  to  be 
under  forty  shillings  :(/c)  But  the  court  refused  to  quash  a  certiorari  upon 
this  ground,  in  an  action  for  an.  assault  brought  against  excise  officers, 
who  could  not  have  had  an  impartial  trial  in  the  inferior  court. (?) 

*By  the  statute  21  Jac.  I.  c.  4,  §  1,  "  all  off"enccs  against  any 
2'>enal  statute,  for  which  any  common  informer  may  lawfully  [  *ol7  ] 
ground  any  popular  action,  bill,  plaint,  suit  or  information,  before 
justices  of  assize,  justices  of  nisi  prius  or  gaol  delivery,  justices  of  oi/er 
and  terminer,  or  justices  of  peace  in  their  general  or  quarter  sessions,  shall 
be  commenced,  sued,  prosecuted,  tried,  recovered  and  determined,  byway 
of  action,  &c.  before  the  justices  of  assize,  &c.  or  before  the  justices  of  peace 
of  every  county,  city,  borough,  or  town  corporate,  and  liberty,  having 
power  to  inquire  of,  hear  and  determine  the  same,  wherein  such  offences 
shall  be  committed,  in  any  of  the  courts,  places  of  judicature,  or  liberties 
aforesaid  respectively  only,  at  the  choice  of  the  parties  which  shall  com- 
mence suit,  or  prosecute  for  the  same,  and  not  elsewhere :  with  an  exception 
of  certain  offences,  concerning  popish  recusancy,  or  for  maintenance, 
champerty,  or  buying  of  titles,  kc."{a)  This  statute  has  been  construed 
to  restrain  the  jui'isdiction  of  the  King's  Bench,  in  actions  of  debt  by 

(c)  Per  Cur.  T.  21  Geo.  III.  K.  B. 
(  f)  2  Price,  8  ;  and  sec  2  Cliit.  Rep.  305. 

Iff)  6  Durnf.  &  East,  175.     8  Durnf.  &  Kast,  235.     1  East,  353,  (a).     1  Dowl.  &  Ryl.  359. 
2  H.  Blac.  29.     1  Bos.  &  Pul.  75.     3  Bos.  ii  Pul.  617  ;  but  see  2  Chit.  Rep.  395,  6. 
(h)  8  Moore,  220.     1  Bing.  270,  S.  C. 
(»•)  3  Durnf.  &  East,  452,     1  East,  354,  (a). 

(k)  Brownl.  JJrcv.  Jud.  140.     2  Brownl.  82.     Moyle,  69.     Clift,  374. 
{I)  4  Durnf.  &  East,  499.    Ante,  399.  (a)  I  5. 


517  OF  SETTING  ASIDE,  AND 

common  informers,  in  cases  where  the  pen.alty  may  be  sued  for  by  action, 
bill,  plaint,  suit  or  information,  either  in  the  courts  at  Westminster^  or  at 
the  assizes  or  sessions  of  the  peace,  as  on  the  statute  5  Eliz.  c.  4 :  and 
they  cannot  in  such  cases  bring  debt  upon  the  statute,  in  the  King's 
Bench,  unless  the  cause  of  action  arise  in  Middlesex,  where  the  court 
sits ;  but  must  prosecute  by  information,  &c.,  before  justices  of  assize,  &c., 
as  the  statute  directs.(5)  So,  an  action  to  recover  a  penalty,  under  the 
statute  5  &  6  Edw.  VI.  c.  14,  must  be  brought  in  the  county  where  the 
fact  was  committed,  and  not  commenced  in  the  superior  courts  at  West- 
minster.(c)  But  the  statute  21  Jac.  I.  c.  4,  is  confined  to  such  statutes 
only  as  were  in  being  at  the  time  of  making  it,  and  does  not  extend  to 
any  offence  created  since  that  statute  ;  so  that  prosecutions  on  subsequent 
penal  statutes  are  not  restrained  thereby,  but  that  statute  is,  as  to  them, 
as  if  it  were  repealed  ^^ro  tanto.{d)  It  is  also  settled,  that  this  statute 
does  not  give  any  new  jurisdiction  to  the  justices  of  assize,  &c.,  where 
they  had  none  before  :(e)  and  therefore,  where  the  penalty  is  to  be  reco- 
vered by  action,  &c.,  or  information,  either  in  the  courts  of  record  at 
Westminster  only,  or  in  the  king's  courts,  ivherein  no  essoin^  j^:)ro^ec^zow, 
or  wager  of  laiv  shall  he  allowed,  (which  words  are  held  to  mean  the 
courts  Q>t  Westminster,)  the  statute  21  Jac.  I.  does  not  apply :(/)  and  a 
suit  prosecuted  at  the  assizes,  &c.,  to  recover  such  penalty  is  erroneous.(^) 
And,  for  the  same  reason,  the  statute  only  restrains  the  proceedings  on 
penal  statutes  in  the  superior  courts,  where  the  informer,  before  the  passing 
of  that  statute,  might  have  sued  in  the  inferior  as  well  as  the  superior 

courts,  by  action,  bill,  plaint,  suit,  or  information. (7i)  The  true 
[  *518  ]  rule  seems  to  be,  that  on  all  *penal  laws  antecedent  to  the  statute 

21  Jac.  I.  c.  4,  where  the  justices  of  assize  and  superior  courts 
QXWestminster\iQ.VQ  a  concurrent  jurisdiction,  both  as  to  the  subject  matter 
and  mode  of  proceeding, {aa)  the  suit  must  be  commenced  before  justices 
of  assize,  or  at  the  sessions,  and  not  before  the  justices  at  Westminster : 
For  though  the  statute  21  Jac.  I.  gives  no  new  jurisdiction  to  inferior 
justices,  yet  it  in  terms  takes  away  the  jurisdiction  of  the  courts  at  West- 
minster. But  in  suits  on  those  statutes  that  give  debt,  &c.,  and  mention 
not  justices  of  assize  or  of  the  peace,  or  where  the  inferior  court  has  not 
a  concurrent  jurisdiction,  both  as  to  the  subject  matter  and  mode  of 
proceeding,  they  must  be  brought  in  the  superior  courts,  otherwise  there 
would  be  a  defect  of  remedy.(W) 

By  the  same  statute,  §  4,  "  no  officer  or  minister  of  any  court  of  record, 
shall  receive,  file  or  enter  of  record,  any  information,  bill  or  plaint,  count 
or  declaration,  grounded  upon  the  said  penal  statutes,  or  any  of  them, 
which  are  appointed  to  be  heard  and  determined  in  their  proper  counties, 
until  the  informer  or  relator  hath  first  taken  a  corporal  oath,  before  some 
of  the  judges  of  that  court,  that  the  offence  or  offences  laid  in  such  infor- 
mation, &c.,  was  or  were  not  committed  in  any  other  county  than  where, 
by  the  said  information,  &c.,  the  same  is  or  are  supposed  to  have  been 

(6)  1  Salk.  373.  (c)  Willes,  634. 

(d)  1  Salk.  372,  3.     Sel.  Ni.  Pri.  6  Ed.  636,  &c. 

(e)  Cro.  Car.  112.     Carth.  465.     4  Durnf.  &  East,  116. 

(/)  Cro.  Car.  112.     W.  Jon.  193.     T.  Raym.  394.    3  Durnf.  &  East,  362. 
(^r)  Cro.  Car.  146.     2  Str.  1143. 

(A)  4  Durnf.  &  East,  109.  Eex  v.  Ferris,  H.  37  Geo.  III.  in  Scae.  1  Wms.  Saund.  6  Ed. 
312,  6,  in  notis. 

(aa)  4  Durnf.  &  East,  116.  (bb)  Willes,  635,  (a).  Id.  n.  1. 


STAYING  PROCEEDINGS.  518 

committed ;  and  that  he  believcth  in  his  conscience  the  offence  was  com- 
mitted within  a  year  before  the  information  or  suit,  within  the  same  county 
where  the  said  information  or  suit  was  commenced,  the  same  oath  to  be 
there  entered  of  record  :"(f)  And  upon  this  chxuse  of  the  statute,  the 
proceedin<;s  were  stayed  on  motion,  in  a  penal  action  on  the  25  Edw.  III. 
St.  4,  c.  'J,  where  the  application  was  made  in  an  early  stage  of  the  cause ; 
because  no  affidavit  had  been  filed,  that  the  offence  was  committed  within 
the  county  where  the  action  was  brought,  or  within  a  year  before  the 
bringing  of  it,  according  to  the  21  Jac.  I.  c.  4.((Z)  But  in  a  subsequent 
case,  where  the  application  was  not  made  till  after  verdict,  the  court  would 
not  stay  the  proceedings  on  a  similar  ground,  in  a  penal  action  on  the  21 
lien.  YIII.  c.  13,  §  20,  for  non-residence. (f) 

In  an  action  for  hrihcry,  on  the  2  Geo.  11.  c.  24,  the  courts  will  stay  the 
proceedings,  even  after  verdict,  upon  the  clause  of  discovery ;(/)  or  if 
there  has  been  any  Avilful  delay  in  prosecuting  the  action. (//)  But  until 
the  defendant  appears  to  the  writ,  the  question  as  to  the  wilfulness  of  the 
delay  does  not  arise  :  Therefore,  where  the  writ  was  returnable  on  the 
first  return  of  Trinity  term  1821,  and  the  plaintiff  did  not  declare  till  the 
1st  of  Jioie,  1822,  and  no  appearance  had  been  entered  for  the  defendant; 
the  court  held,  that  the  proceedings  could  not  be  stayed  under  the  above 
8tatute.(/i)  The  proceedings  have  been  stayed  in  an  action  on 
the  18  Geo.  II.  *c.  34,  §  1,  for  keeping  a  gaming  house  ;  because,  [  *ol9  ] 
by  a  previous  statute,(a)  the  penalty  is  payable  on  conviction, 
before  a  justice  of  the  peace.  And  they  might  also,  it  seems,  have  been 
stayed,  in  an  action  on  the  general  turnpike  act,  13  Geo.  III.  c.  84,  §19,(^>) 
for  using  a  greater  number  of  horses  than  is  thereby  allowed  for  drawing 
wagons,  &c.,  on  the  ground  of  its  being  necessary  by  reason  of  deep  snow 
or  ice ;  but,  in  order  to  stay  the  proceedings  on  that  ground,  an  applica- 
tion must  be  made  to  the  court  above,  in  which  the  action  is  brought,  and 
the  defence  is  not  available  at  nisi  prius.[cc)  In  an  action  for  non-resi- 
dence^ on  the  statute  43  Geo.  III.  c.  84,  §  12,  the  proceedings  were  stayed 
after  declaration,  in  the  Common  Pleas,  on  the  statute  54  Geo.  III. 
c.  0  -.[dd)  But  the  court  would  not  stay  the  proceedings,  on  a  writ 
suggested  to  be  the  commencement  of  an  action  for  non-residence,  before 
the  delivery  of  the  declaration,  without  some  other  evidence  of  the  nature 
of  the  action  -.{ee)  and  they  refused  to  extend  the  relief  of  the  statute,  to  a 
case  where  the  defendant  had  obtained  a  rule  to  compound,  before  it  had 
passcd.(/) 


I 


(f)  I  5.  {d)  2  Diirnf.  &  East,  274. 

\c)  3  Dunif.  &  East,  3G2  ;  find  see  2  Str.  1081.     1  H.  Blac.  546.     3  Maule  &  Sel.  429. 

(/)  4  Bur.  2287.  1  Hlac.  Rep.  GC5,  S.  C.  ;  but  see  3  Wils.  35.  2  Wms.  Suund.  5  Ed. 
148,  b,  c,  where  the  party  was  put  to  his  audita  querela. 

{g)  3  Durnf.  &  East,  5  ;  but  see  the  case  of  Irwin,  qui  tarn  v.  Sir  William  Manners,  E.  44 
Geo.  III.  K.  B. 

{h)  1  Dowl.  &  Ryl.  512.  {a)  12  Geo.  II.  c.  28,  §  1. 

(i)  This  statute  has  been  since  repealed,  by  stat.  3  Geo.  IV.  c.  126  |  and  see  slat.  4  Geo. 
IV.  c.  95,  to  explain  and  amend  the  latter  act. 

{ec)  1 1  East,  484. 

{dd)  5  Taunt.  305.  This  statute  was  continued  by  the  54  Geo.  III.  c.  44.  And,  by  tho 
statute  54  Geo.  III.  c.  54,  g  4,  the  court,  or  a  judge,  is  autliori/.ed  to  stay  the  proceedings 
in  such  an  action,  upon  certain  conditions :  And  for  determinations  on  this  statute,  see  6 
Taunt.  629.  1  Mar.sh.  368.  5  Taunt.  807.  1  Marsh.  372,  8.  G.  5  Taunt.  843.  1  Marsh.  387, 
S.  C.  G  Taunt.  198.  1  Marsh.  547,  S.  C.  See  also  the  statute  67  Geo.  III.  c.  99,  I  5,  &c., 
for  enforcing  the  residence  of  spiritual  persons  on  their  benefices. 

{ee)  5  Tauut.  304.  (/)  Id.  306. 


5]9  OF  SETTING  ASIDE,  AND 

Actions  or  prosecutions  for  the  recovery  of  penalties  on  the  revenue  laws, 
must,  by  several  acts  of  parliament,  be  commenced  and  carried  on  in  the 
name  of  the  attorney  general,  or  other  officer  of  the  revenue.  Thus,  by 
the  2G  Geo.  III.  c.  77,  §  13,  "if  an  action  be  commenced  or  prosecuted, 
for  tlie  recovery  of  any  penalty  or  forfeitute,  by  virtue  of  any  act  relating 
to  the  customs  or  excise,  unless  the  same  be  commenced  and  prosecuted  in 
the  name  of  the  attorney  general,  or  some  officer  of  the  said  revenues,  the 
same,  and  all  proceedings  therein,  are  declared  to  be  null  and  void ;  and 
the  court  shall  not  permit  or  suffer  any  proceedings  to  be  had  there- 
upon.'X^')  By  the  36  Geo.  III.  c.  104,  §  38,  "it  shall  not  be  lawful  for 
any  person  or  persons  to  commence  or  enter,  or  cause  or  procure  to  be 
commenced  or  entered,  or  filed  or  prosecuted,  any  action,  suit,  bill,  plaint, 
or  information,  for  the  recovery  of  any  penalty  or  penalties,  inflicted  by 
any  of  the  laws  touching  or  concerning  lotteries,  or  by  that  act,  unless  the 
same  be  commenced,  entered,  filed  and  prosecuted,  in  the  name  of  his 
majesty's  attorney  general,  in  the  court  of  Exchequer  atWestminster,  if 
the  offence  shall  be  committed  in  England;  or,  in  the  name  of  his 
majesty's  advocate  general  in  the  court  of  Exchequer  in  Scot- 
ia *520  ]  land,  if  the  offence  be  there  committed :  *And  if  any  action, 
&c.,  shall  be  commenced  or  entered  in  any  other  person's  name 
or  names,  the  same,  and  all  proceedings  thereupon  had,  are  declared 
to  be  null  and  void ;  and  the  court  where  such  proceedings  shall  be  so 
commenced,  shall  caused  the  same  to  be  stayed."  And  there  is  a  similar 
clause  in  the  statute  44  Geo.  III.  c.  98,  §  10,  with  respect  to  actions,  &c., 
for  the  recovery  of  penalties  incurred  by  virtue  of  that  or  any  other  act  or 
acts  of  parliament,  relating  to  his  majesty's  stamp  duties,  or  any  other 
duties  under  the  management  of  the  commissioners  of  the  duties  on  stamped 
vellum,  parchment  and  paper,  (a) 

By  the  Bank  acts,(5)  the  courts  were  authorized  to  stay  proceedings, 
in  actions  brought  against  the  governor  and  company  of  the  Bank  of 
England,  during  the  continuance  of  the  restriction  thereby  imposed  on 
payments  by  the  said  governor  and  company  in  cash,  to  compel  payment 
of  any  note  of  the  said  governor  and  company  expressed  to  be  payable  on 
demand ;  or  of  any  note  of  the  said  governor  and  company,  made  payable 
otherwise  than  on  demand,  or  of  any  other  debt,  which  the  said  governor 
and  company  should  be  willing  to  pay  in  their  notes  expressed  to  be  pay- 
able on  demand ;  until  the  expiration  of  the  time  limited  for  the  continuance 
of  such  restriction. 

By  the  annuity  act,  17  Geo.  III.  c.  26,  §  1,  it  was  enacted,  that  "  a 
memorial  of  every  deed,  bond,  instrument,  or  other  assurance,  whereby 
any  annuity  or  rent  charge  should  be  granted  for  one  or  more  life  or  lives, 
or  for  any  term  of  years,  or  greater  estate,  determinable  on  one  or  more 
life  or  lives,  should  within  tiventy  days  of  the  execution  of  such  deed,  &c., 
be  inrolled  in  the  high  court  of  Chancery ;  and  should  contain  the  day  of 
the  month,  and  the  year,  when  the  deed,  &c.,  bore  date,  and  the  names  of 
all  the  parties,  and  for  whom  any  of  them  were  trustees,  and  of  all  the 

{g)  And  see  6  Geo.  IV.  c.  108,  \  100  accord.:  and,  by  ?  101,  of  that  statute,  the  attorney 
general  may  enter  a  7ioli prosequi,  on  informations  exhibited  for  penalties. 

(a)  And  see  the  statute  35  Geo.  III.  c.  55,  ?  16. 

[b)  37  Geo.  III.  c.  45,  I  2.  37  Geo.  III.  c.  91,  ?  1.  38  Geo.  III.  c.  1,  §  1.  43  Geo.  III. 
c.  18.  59  Geo.  III.  c.  23.  But  by  stat.  59  Geo.  III.  c.  49,  §  1,  the  restrictions  on  payments 
in  cash,  under  these  several  acts,  finally  ceased  and  determined,  on  the  first  day  of  May, 
1823. 


STAYING  PROCEEDINGS.  620 

"Mtnesses ;  and  should  set  forth  the  annual  sum  or  sums  to  be  paid,  and 
the  name  of  the  person  or  persons  for  whose  life  or  lives  the  annuity  was 
granted,  and  the  consideration  or  considerations  for  granting  the  same  ; 
otherwise  every  such  deed,  &c.,  should  be  null  and  void,  to  all  intents  and 
purposes."  By  a  subsequent  clause,(c)  it  was  further  enacted,  that  "  in 
every  deed,  instrument,  or  other  assurance,  wlicrcby  any  annuity  or  rent 
charge  should  be  granted,  or  attempted  to  be  granted,  the  couHideration 
really  and  bond  fide y  (which  shouM  be  in  money  only,)  and  also  the  name 
or  names  of  the  persons  by  whom,  and  on  whose  behalf,  the  said  considera- 
tion, or  any  part  thereof,  should  be  advanced,  should  be  fully  and  truly 
set  forth  and  described  in  words  at  length  ;  and  in  case  the  same  should 
not  be  fully  and  truly  set  forth  and  described,  every  such  deed,  kc,  should 
be  null  and  void,  to  all  intents  and  purposes." 

♦And,  by  the  fourth  section  of  the  act,  "if  any  part  of  the 
consideration  should  be  returned  to  the  person  advancing  the  [  *o21  ] 
same ;  or,  in  case  the  consideration,  or  any  part  of  it,  was  paid 
in  notes,  if  any  of  the  notes,  with  the  privity  and  consent  of  the  person 
advancing  tlie  same,  should  not  be  paid  when  due,  or  shouM  be  cancelled 
or  destroyed,  without  being  first  paid  ;  or  if  the  consideration,  or  any  part 
of  it,  was  paid  in  goods  ;  or  if  any  part  of  the  consideration  was  retained^ 
on  pretence  of  answering  the  future  payments  of  the  annuity,  or  any  other 
pretence ;  in  all  and  every  of  the  aforesaid  cases,  it  should  and  might  be 
lawful  for  the  person  by  whom  the  annuity  or  rent  charge  was  made  pay- 
able, to  apply  to  the  court  in  which  any  action  was  brought  for  payment 
of  the  annuity,  or  judgment  entered,  by  motion,  to  stay  proceedings  on 
the  judgment,  or  action;  and  if  it  should  appear  to  the  court,  that  such 
practices  as  aforesaid,  or  any  of  them  had  been  used,  it  should  and  might 
be  lawful  for  the  court  to  order  the  deed,  bond,  instrument  or  other 
assurance,  to  be  cancelled,  and  the  judgment,  if  any  had  been  entered,  to 
be  vacated." 

By  this  latter  clause  the  courts  had,  in  certain  cases,  an  express  juris- 
diction given  them,  by  motion,  to  stay  proceedings  in  an  action  brought 
for  payment  of  the  annuity,  or  on  a  judgment  entered  ;  and  to  order  the 
deed,  &c.,  to  be  cancelled,  and  the  judgment  to  be  vacated.  In  other 
cases,  not  specially  provided  for  by  the  above  clause,  where  a  warrant  of 
attorney  has  been  given  to  confess  a  judgment,  or  judgment  has  been 
entered  up  in  the  King's  Bench,  for  securing  the  payment  of  an  annuity, 
the  court,  in  virtue  of  their  general  jurisdiction,  will  enter  into  the 
validity  of  the  warrant  of  attorney,  or  judgment,  upon  motion  ;  and  if 
the  provisions  of  the  act  have  not  been  complied  with,  will  vacate  the 
warrant  of  attorney,  or  set  aside  the  judgment. (a)  And  judgment  wag 
set  aside  for  want  of  a  memorial,  though  it  had  been  omitted  at  the 
request  of  the  grantor.(/*)  But  where  an  action  was  brought  by  executors^ 
on  a  bond  given  by  the  defendant  to  their  testator,  for  securing  an 
annuity,  and,  upon  a  plea  of  nan  eat  factum,  they  obtained  a  verdict  and 

(c)  §  3. 

(a)  4  Durnf.  &  East,  G04.  1  11.  RIac.  C59.  4  Iko.  Ch.  Cas.  310.  2  Yes.  jun.  133,  S.  C. 
6  Durnf.  &  East,  737.  1  Bos.  &  Pul.  451.  3  Taunt.  540.  10  .Moore,  172.  2  Bing.  475, 
S.  C.  But  where  a  warrant  of  attorney  was  given  to  enter  up  judgment  in  the  Common 
Pleas,  upon  which  judgment  was  entered  up  by  mistalve  in  the  King's  Bench,  it  seems  that 
the  latter  court,  though  they  will  set  aside  the  judgment,  will  not  order  the  warrant  of 
attorney  to  be  vacated.     G  East,  241,  (<7). 

(6)  2  Chit.  Rep.  34. 


521 


OF  SETTING  ASIDE,  AND 


iudTment,  and  levied  execution  thereon,  the  court  held  this  not  to  be  a 
case  where  they  could  give  relief,  upon  a  summary  application  under  the 
annuity  act,  for  a  defect  in  the  memorial  ;(cc)  for  the  act  only  meant  to 
refer  to  such  judgments  on  warrants  of  attorney,  as  were  intended  to  be 
a  part  of  the  security  for  the  annuity,  and  not  to  extend  to  cases  where  a 
judgment  is  obtained  in  the  ordinary  course   of  law,  on  any  instrument 

given  for  securing  the  same.(t?)    And  the  court  of  Common  Pleas 
[  *522  ]  set  aside  a  judgment  and  warrant  of  attorney,  *given  to  secure  an 

annuity,  for  a  defect  in  the  memorial,  without  costs,  because  it  was 
the  case  of  an  executor.(a) 

Upon  the  fourth  section  of  the  act,  it  has  been  holden,  that  the  appli- 
cation to  the  court  should  be  made  by  the  person  by  whom  the  annuity  is 
■payable  ;(6)  but  the  court  in  one  instance  set  aside  a  judgment  entered  on 
the  annuity  bond,  and  execution  sued  out  thereon,  for  a  defect  in  the 
memorial,  upon  the  application  of  a  judgment  creditor  of  the  grantor,  with 
a  view  of  letting  in  a  subsequent  judgment  of  his  own.((?)  In  a  later  case 
however,  where  the  grantor  of  an  annuity  had  assigned  a  lease  for  secur- 
ing the  payment  of  it,  and  afterwards  sold  his  interest  in  the  lease  to  a 
fair  purchaser,  it  was  holden  that  the  latter  was  not  entitled,  under  that 
section,  to  apply  to  the  court,  to  have  the  security  delivered  up  to  be  can- 
celled, because  the  memorial  required  by  the  act  was  not  duly  register- 
ed. (cicZ)  And  where  the  attorney  for  the  grantor  of  an  annuity,  at  the 
time  of  the  payment  of  the  purchase  money,  took  and  retained  an  unrea- 
sonable part  thereof  for  the  expenses  of  the  deed,  the  court  on  that  ground 
would  not  set  aside  the  annuity. (e)  By  the  above  section,  the  courts  are 
expressly  authorized  to  order  the  deed,  &c.  to  be  cancelled,  as  well  as  to 
set  aside  the  judgment,  or  stay  the  proceedings :  But  where  the  applica- 
tion is  made  to  the  general  jurisdiction  of  the  court,  it  seems  that  they  will 
only  vacate  the  warrant  of  attorney,  or  set  aside  the  judgment  or  execu- 
tion ;  and  not  make  any  order  respecting  the  deeds,  &c.  which  are  declared 
by  the  act  to  be  null  and  void,  to  all  intents  and  purposes. (/)  And  in 
general,  the  fourth  section  of  the  act  is  not  imperative  on  the  court ;  but 
it  is  in  their  discretion,  either  to  vacate  the  securities  given  for  an  annuity, 
in  case  of  a  violation  of  that  clause  of  the  act,  or  to  do  so  on  certain  terms, 
or  to  refuse  to  do  so,  according  to  the  circumstances  of  each  particular 
case.(^) 

By  the  statute  53  Geo.  III.  c.  141,  §  1,  the  former  act  was  repealed, 
save  and  except  so  far  as  regarded  any  annuities  or  rent  charges  which 
had  been  previously  granted :  And  it  is  enacted  thereby,  that  "  within 
thirty  days  after  the  execution  of  every  deed,  bond,  instrument,  or  other 
assurance  whereby  any  annuity  or  rent  charge  shall,  from  and  after  the 
passing  of  that  act,  be  granted  for  one  or  more  life  or  lives,  or  for  any  term 
of  years,  or  greater  estate,  determinable  on  one  or  more  life  or  lives,  a  me- 
morial of  the  date  of  every  such  deed,  bond,  instrument,  or  other  assurance, 
of  the  names  of  all  the  parties,  and  of  all  the  witnesses  thereto,  and  of  the 
person  or  persons  for  whose  life  or  lives  such  annuity  or  rent  charge  shall  be 

(cc)  1  Durnf.  &  East;  495. 

(d)  Per  Ld.  Kenyan,  7  Durnf.  &  East,  496.  (fl)  1  Boa.  &  Pul.  335. 

(i)  7  Moore,  63.     3  Brod.  &  Bing.  255,  S.  C.  (c)  5  Durnf.  &  East,  9. 

{(Id)  6  Durnf.  &  East,  403  ;  but  see  2  East,  563.  (e)  1  Taunt.  596. 

(/)  2  Yes./u/i.  138.     6  Durnf.  &  East,  404,  739.  7  Durnf.  &  East,  253.     3  East,  500,     1 

Marsh.  483.     10  Moore,  172.     2  Bing.  475,  S.  C.  ;  but  see  I  Bos.  &  Pul.  66,  482. 
{g)  6  Barn,  k  Aid.  61.     2  Dowl.  &  Rjl.  150,  S.  C. 


STATING  PROCEEDINGS.  522 

granted,  and  of  the  person  or  persons  by  "whom  the  same  is  to  be 
beneficially  received,  the  pecuniary  consideration  or  *considera-  [  *523  ] 
tions  for  granting  the  same,  and  the  annual  sum  or  sums  to  be 
paid,  shall  be  inrolled  in  the  high  court  of  Chancery,  in  the  form  or  to 
the  effect  therein  mentioned,  -with  such  alterations  therein,  as  the  nature 
and  circumstances  of  any  particular  case  may  reasonably  re(iuire :  other- 
wise every  such  deed,  bond,  instrument,  or  other  assurance,  shall  be  null 
and  void,  to  all  intents  and  purposes. "(a)  And  that  "  in  every  deed,  bontl, 
instrument,  or  other  assurance,  whereby  any  annuity  or  rent  charge  shall, 
from  and  after  the  passing  of  that  act,  be  granted,  or  attempted  to  be 
granted,  for  one  or  more  life  or  lives,  or  for  any  term  of  years,  or  greater 
estate,  determinable  on  one  or  more  life  or  lives,  where  the  person  or  per- 
sons, to  whom  such  annuity  shall  be  granted,  or  secured  to  be  paid,  shall 
not  be  entitled  thereto  beneficially,  the  name  or  names  of  the  person  or 
persons  who  is  or  are  intended  to  take  the  annuity  beneficially,  shall  be 
described  in  such  or  the  like  manner,  as  is  therein  before  recjuired,  in  the 
inrolment;  otherwise  every  such  deed,  instrument,  or  other  assurance, 
shall  be  null  and  void."(^) 

And  "if  any  part  of  the  consideration  for  the  purchase  of  any  such  an- 
nuity or  rent  charge,  shall  be  returned  to  the  person  advancing  the  same ; 
or  in  case  such  consideration,  or  any  part  of  it,  shall  be  paid  in  notcs^  if 
any  of  the  notes,  with  the  privity  and  consent  of  the  person  advancing  the 
same,  shall  not  be  paid  when  due,  or  shall  be  cancelled  or  destroyed,  with- 
out being  first  paid ;  or  if  such  consideration  is  expressed  to  be  paid  in 
money,  but  the  same,  or  any  part  of  it,  shall  be  paid  in  goods  ;  or  if  the 
consideration,  or  any  part  of  it,  shall  be  retained,  on  pretence  of  answer- 
ing the  future  payments  of  the  annuity  or  rent  charge,  or  on  any  other 
pretence ;  in  all  and  every  the  aforesaid  cases,  it  shall  be  lawful  for  the 
person  by  whom  the  annuity  or  rent  charge  is  made  payable,  or  whose 
property  is  liable  to  be  charged  or  affected  thereby,  to  apply  to  the  court, 
in  which  any  action  shall  be  brought  for  payment  of  the  annuity  or  rent 
charge,  or  judgment  entered,  by  motion,  to  stay  proceedings  on  the  action 
or  judgment;  and  if  it  shall  appear  to  the  court  that  such  practices  as 
aforesaid,  or  any  of  them,  have  been  used,  it  shall  and  may  be  lawful  for 
the  court  to  order  every  deed,  bond,  instrument,  or  other  assurance  where- 
by the  annuity  or  rent  charge  is  secured,  to  be  cancelled,  and  the  judg- 
ment, if  any  has  been  entered,  to  be  vacated. "(c)  This  act  does  not  extend 
to  Scotland  or  Ireland ;[d)  nor  to  any  annuity  or  rent  charge  given  by 
will,  or  by  marriage  settlement,  or  for  the  advancement  of  a  child  ;  nor 
to  any  annuity  or  rent  charge  secured  upon  freehold,  or  copyhold  or  cus- 
tomary lands,  in  Great  Britain  or  Ireland,  or  in  any  of  his  majesty's  pos- 
sessions beyond  seas,  of  equal  or  greater  annual  value  than  the  said  annuity, 
over  and  above  any  other  annuity  and  the  interest  of  any  principal  sum 
charged  or  secured  thereon,  of  which  the  grantee  had  notice  at  the  time  of 
the  grant,  whereof  the  grantor  is  seised  in  fee  simple,  or  fee  tail  in  posses- 
sion, or  the  fee  simple  whereof  in  possession  the  grantor  is  enabled 
to  charge  at  the  time  of  the  *grant;  or  secured  by  the  actual  trans-  [  *524  ] 
fer  of  stock,  in  any  of  the  public  funds,  the  dividends  whereof  are 
of  equal  or  greater  annual  value  than  the  said  annuity  ;  nor  to  any  voluntary 
annuity  or  rent  charge,  granted  without  regard  to  pecuniary  consideration, 

(a)  2  2.  (6)2  4.  {c)2  6.  ((f)  2  10- 


524  OF  SETTING  ASIDE,  AND 

or  money's  worth  ;  nor  to  any  annuity  or  rent  charge  granted  hy  any  body 
corporate,  or  under  any  authority  or  trust  created  by  act  of  parliament." 

A  mere  sureti/,  who  charges  with  the  payment  of  an  annuity  his  estate 
in  fee  simple,  of  which  he  was  seized  in  possession  at  the  time  of  granting 
it,  and  which  was  of  greater  annual  value  than  the  annuity,  is  considered  as 
a  grantor,  within  the  meaning  of  the  annuity  acts  ;(aa)  and  therefore,  in 
such  case,  no  memorial  is  required.(66)  Where,  on  a  fair  and  ho7idjide  sale 
of  an  interest  in  land,  the  consideration,  in  part  or  in  the  whole,  is  an  an- 
nuity to  be  paid  to  the  vendor,  such  consideration  is  not  2^,  pecuniary  con- 
sideration, or  money's  worth,  Avithin  the  meaning  of  the  statute  58  Geo. 
III.  c.  141.  Therefore,  where  the  plaintiff  had  assigned  an  interest  in 
coal  mines  to  the  defendant,  in  consideration  of  an  annuity  for  her  life, 
and  for  the  payment  of  which  a  bond  was  conditioned  ;  the  court  of  Com- 
mon Pleas  held,  that  such  bond  did  not  require  inrolment.(e)  A  memo- 
rial of  an  annuity  deed,  inrolled  within  thirty  days  after  execution  of  the 
deed  by  the  grantee,  is  good,  though  inrolled  before  execution  by  the 
grantor, ((^)  And  a  memorial,  when  necessary,  need  not  state  that  the 
annuity  is  redeemable  ;(e)  nor  the  name  of  the  party,  to  whom  the  war- 
rant of  attorney  for  securing  it  was  given  ;(e)  nor  for  what  penal  sum  it 
authorizes  a  confession  of  judgment. (/) 

It  is  sufficient  to  state  in  the  memorial,  that  the  annuity  was  granted 
for  the  lives  of  A.  B.  &c.  (naming  them,)  without  stating  their  description, 
by  residence  or  otherwise,  or  adding  that  the  annuity  was  granted  for 
their  joint  lives,  or  the  life  of  the  survivor,  or  for  a  term  of  years  deter- 
minable on  those  lives. (/)  And  where  an  annuity  deed  contained  a  cove- 
nant by  the  grantor,  that  he  would  not  at  any  time  during  the  continu- 
ance of  the  annuity,  go  upon  the  seas,  or  to  parts  beyond  them,  without  first 
giving  the  grantee  seyewdays  notice  in  writing  of  such  his  intention,  in  order 
to  enable  him  to  pay  such  additional  premiums  of  insurance  as  might  be 
incurred  on  account  thereof,  which  premiums  the  grantor  covenanted  to 
pay  to  the  grantee ;  the  court  of  Common  Pleas  held,  that  it  was  not 
necessary  to  state  such  covenants  in  the  memorial,  under  the  statute. (^) 
So,  where  the  grantor  of  an  annuity  assigned  a  policy  of  insurance  on  his 
own  life  to  the  grantee,  whereby  the  latter  was  enabled  to  insure  the  life 
of  the  former  at  a  less  premium  than  he  otherwise  could  have  done,  the 
court  held,  that  such  assignment  was  no  part  of  the  considera- 
[  *525  ]  tion,  and  need  not  therefore  have  *been  set  out  in  the  memo- 
rial.(a)  So,  where  an  annuity  was  granted  by  an  indenture, 
which  also  contained  a  release  of  a  former  annuity ;  the  court  held,  that  it 
was  sufficient  to  describe  the  annuity  deed  in  the  memorial,  as  a  grant  of 
an  annuity.(6) 

When  part  of  the  consideration  for  an  annuity  had  been  deposited  in  the 
hands  of  the  grantee's  attorney,  till  certain  houses,  out  of  which  the 

{aa)  17  Geo.  III.  c.  26,  §  8.     53  Geo.  III.  c.  141,  ^  10.       (W)  5  Barn.  &  Aid.  444. 

(c)  5  Moore,  479.  2  Brod.  &  Bing.  702,  S.  C.  ;  and  see  5  Moore,  629,  on  stat.  17  Geo.  III. 
c.  26,  and  2  Barn.  &  Ores.  875.  4  Dowl.  &  Ryl.  549,  S.  C.  4  Bing.  214,  on  stat.  53  Geo.  III. 
c.  141. 

{d)  3  Bing.  215.  6  Barn.  &  Cres.  49.  9  Dowl.  &  Ryl.  113,  S.  C.  in  Error. 

(e)  3  Barn.  &  Aid.  206.  (/)  4  Barn.  &  Aid.  281. 

ig)  5  Moore,  63. 

[a]  2  Barn.  &  Cres.  232.  3  Dowl.  &  Ryl.  263,  S.  C. ;  and  see  2  Barn.  &  Gres.  251.  3  Dowl. 
&  Ryl.  485,  S.  C.  6  Barn.  &  Cres.  689. 

(6)  6  Barn.  &  Cres.  366. 


STAYmO  PROCEEDINGS.  525 

annuity  Avas  granted,  should  be  completed,  but  it  appeared  that  the  money 
deposited  had  all  been  paid  over  to  the  j^rantor,  in  a  short  time  after  the 
date  of  the  deeds,  and  there  was  no  fraud  in  the  transaction,  the  court  re- 
fused to  set  aside  the  annuity,  on  the  ground  that  the  power  given  to  them 
by  the  above  act  was  discretionary,  and  that  this  was  not  the  case  of  a 
fraudulent  retainer  contemplated  by  the  act.(<.-)  ]iut  where,  upon  the  grant 
of  an  annuity,  the  agent  of  the  grantee,  on  paying  ihe  consideration 
money,  retained^  or  caused  to  be  returned  to  him,  a  considerable  sum  for 
the  expense  of  deeds,  investigating  title,  journeys,  &c.,  (two  witnesses, 
brought  from  a  considerable  distance  for  the  purpose  of  attesting  the  exe- 
cution of  the  annuity  deed,  having  first  retired,)  the  Court  of  Common 
Pleas  hejd  this  to  be  an  illegal  retainer,  for  which  the  grantee  was  respon- 
sible ;  and  on  that  ground  set  aside  the  annuity,  ten  years  after  ii  had  been 
granted  and  acted  on,  though  tiic  grantee  alleged  tliat  he  had  given  no 
authority  for,  and  was  ignorant  of,  such  retaincr.((Z)  And  where  an  an- 
nuity being  in  arrear,  and  the  rents  of  an  estate  on  which  it  was  secured 
being  unpaid,  the  trustee  of  the  estate,  who  had  negotiated  the  annuity 
between  the  grantor  and  grantee,  advanced  a  sum  to  the  latter,  in  antici- 
pation of  the  coming  rents,  and  received  from  him,  on  such  advance,  tho 
commission  he  usually  received  on  annuity  payments,  the  court  of  Com- 
mon Pleas  set  aside  an  execution,  which,  the  rents  proving  insullicient, 
■was  afterwards  issued  for  this  sum,  in  the  name  of  the  grantee,  against 
one  who,  as  surety  for  the  payment  of  the  annuity,  had  given  a  warrant 
of  attorney,  to  confess  judgment  ;(t')  and  also  another  execution,  which, 
under  similar  circumstances,  the  grantee  afterwards  issued  for  this  sum, 
against  the  grantor. (/) 

It  having  been  decided  by  the  court  of  the  King's  Bench,  that  the  me- 
morial of  an  annuity  must  contain  the  description  and  place  of  residence 
of  the  witnesses  to  the  annuity  deed,((/)  it  w^as,  in  consequence  of  that  de- 
cision, enacted  and  declared,  by  the  statute  3  Geo.  IV.  c.  92,(/i)  that  "by 
the  said  act  of  the  fifty-third  year  of  the  reign  of  his  late  majesty,  no  further 
or  other  description  of  the  subscribing  witness  or  witnesses  to  any  deed, 
bond,  instrument,  or  other  assurance,  whereby  any  annuity  or  rent  charge 
was  or  might  be  granted,  was  required  in  the  memorial  thei-eof, 
besides  *the  names  of  all  such  Avitnesses;  and  that  so  the  said  act  [  *520  ] 
should  be  deemed,  construed  and  taken."  And,  in  a  case  arising 
after  the  passing  of  3  Geo.  IV.  c.  02,  where  the  Avitnosscs  to  the  deeds 
were  an  attorney's  clerks,  the  court  of  Common  Pleas  held,  that  they  Avere 
sufficiently  described  in  the  memorial,  as  clerks  to  their  employer,  stating 
his  place  of  residence.(a)  It  having  been  determined,  hoAvever,  by  the 
court  of  King's  Bench,  that  the  memorial  of  an  annuity  must  contain  the 
christian  names  of  the  subscribing  witnesses  to  the  securities;  the  initials 
of  their  christian  names  not  being  deemed  sufficient  •,{I>)  it  Avas  enacted  and 

(r)  4  Barn.  &  Aid.  281. 

{d}  1  BinfT.  234.  8  Moore,  100,  S.  C. ;  and  see  6  Moore,  491.  8  Moore,  302.  1  Bing. 
287,  S.  C.  8  Moore,  320,  n.  9  Moore,  703.  2  Bing.  370,  S.  C.  3  Bing.  177.  4  Bing.  26. 
6  Barn.  &  Cres.  165. 

(c)  I  Bing.  171.  7  Moore,  579,  S.  C. ;  and  see  8  Moore,  224.  1  Bing.  274,  S.  C.  8  Moore, 
324.     1  Bing.  316,  S.  C.     6  Barn.  &  Cres.  165. 

(/)   1  Bing.  190.     7  Moore,  621,  S.  C. 

Iff)  5  Barn,  k  Aid.  444,  717.     1  Dowl.  &  Ryl.  374,  S.  C.  (h)  I  1. 

(a)   1  Bing.  77.     7  Moore,  382,  S.  C. ;  and  see  1  Bing.  292. 

(6)  2  Barn.  &  Cres.  1.  3  Dowl.  &  Ryl.  185,  S.  C. ;  and  see  6  Dowl.  &  Rvl.  292.  5  Barn. 
&  Cres.  258.     7  Dowl.  &  Ryl.  773,  S.  C. 

Vol.  l— 33 


52G  OP  SETTING  ASIDE,  AND 

declared,  by  the  statute  7  Geo.  IV.  c.  75,  that  "  by  the  said  act  of  53  Geo. 
III.  c.  141,  no  further  or  other  name  or  names  of  the  subscribing  witness 
or  witnesses  to  any  deed,  bond,  instrument,  or  other  assurance,  whereby 
any  annuity  or  rent  charge  is  or  may  be  granted,  is  or  are  required  in  the 
memorial  thereof,  besides  the  names  of  all  such  Avitnesses,  as  they  shall 
appear  signed  to  their  attestations  respectively,  of  the  execution  of  such 
deed,  kc. ;  and  so  the  said  act  shall  be  deemed,  construed  and  taken :" 
And  if  the  witnesses  to  the  deed  are  accurately  described  in  the  memorial, 
it  is  sufficient,  though  they  did  not  see  the  parties  execute. (c) 

Doubts  having  also  arisen,  whether  under  the  said  act  of  the  fifty-third 
year  of  the  reign  of  his  late  majesty,  the  omission  to  enrol  a  memorial  of 
any  one  of  the  assurances  for  securing  an  annuity  or  rent  charge,  did  not 
vitiate  the  whole  transaction,  notwithstanding  the  enrolment  of  a  memorial 
of  another  deed,  bond,  instrument  or  other  assurance,  granting  the  same,(cZ^ 
is  was  further  enacted  and  declared,  by  the  statute  3  Geo.  IV.  c.  92, (e) 
that  "  every  deed,  bond,  instrument,  or  other  assurance,  granting  any  an- 
nuity or  rent  charge,  and  of  which  a  memorial  shall  have  been,  or  shall  be 
duly  enrolled,  pursuant  to  the  said  act,  notwithstanding  the  omission  to 
enrol  any  other  deed,  bond,  instrument,  or  assurance,  for  securing  such 
annuity  or  rent  charge,  shall  be  valid  and  effectual,  according  to  the  in- 
tent meaning  and  true  effect  thereof,  notwithstanding  a  memorial  of  any 
other  deed,  bond,  instrument,  or  assurance,  for  securing  the  same  annuity, 
shall  not  have  been  duly  enrolled,  pursuant  to  the  said  act:  Provided  al- 
ways, that  nothing  therein  contained,  shall  extend  to  give  any  other  force 
or  validity,  to  any  deed,  bond,  instrument,  or  other  assurance,  of  which  a 
memorial  shall  have  been  duly  enrolled  as  aforesaid,  than  such  deed,  bond, 
instrument,  or  other  assurance,  would  have  had,  if  any  deed,  bond,  instru- 
ment, or  other  assurance,  for  securing  the  same  annuity,  of  which  a  memo- 
rial shall  not  have  been  duly  enrolled,  had  never  been  executed." 
[  *527  ]|  *The  laches  of  the  party  applying,  under  the  above  acts,  does 
not,  it  seems,  furnish  of  itself  an  answer  to  the  application. (a) 
But  where  it  appeared  that  he  had  acquiesced  in  the  payment  of  the  an- 
nuity, and  had  lain  by  till  the  persons  acquainted  with  the  original  trans- 
action were  dead,  the  court  refused  to  interfere,  and  relieve  him  in  a 
summary  way.(5)  So,  where  an  ejectment  was  brought  to  recover  posses- 
sion of  lands  extended  under  an  elegit,  upon  a  judgment  confessed,  which 
had  been  entered  up  on  a  warrant  of  attorney  given  for  securing  an  an- 
nuity, it  was  holden  to  be  too  late  for  the  grantor  to  object  to  the  con- 
sideration of  the  annuity,  upon  a  summary  application  for  staying  the  pro- 
ceedings, after  verdict  in  such  ejectment ;  because  he  had  an  opportunity 
of  making  his  defence  to  the  action.(c(?)  And  it  seems  that  an  annuity  paid 
without  objection  for  more  than  six  years,  shall  be  protected,  by  analogy 

(c)  3  Bing.  215.     6  Barn.  &  Cres.  49.     9  Dowl.  &  Ryl.  113,  S.  C.  in  error. 

{d}  4  Bro.  Ch.  Cas.  310.  2  Ves.  jun.  154,  S.  C.  6  Durnf.  &  East,  471.  8  Durnf.  &  East, 
183.  1  Bos.  &  Pul.  451.  2  East,  563.  3  East,  500.  6  East,  243  ;  but  see  4  Durnf.  &  East 
694.  6  Taunt.  124.  1  Marsh.  478,  S.  C,  by  which  it  seems,  that  the  courts  would  only 
have  set  aside  the  deeds  whicli  were  defective,  or  not  properly  memorialized. 

(e)  §  2. 

[a)  Grant  v.  Folei/,  T.  23  Geo.  III.  K.  B. ;  and  see  1  Bos.  &  Pul.  451.  8  Taunt.  435.  4 
Moore,  402.     2  Brod.  &  Bing.  19,  S.  C. 

(6)  5  Durnf.  &  East,  139  5"  and  see  8  Durnf.  &  East,  323.  2  East,  85,  565.  2  Chit.  Rep. 
32,  3.     4  Dowl.  &  Ryl.  344.     7  Taunt.  596. 

(cc)  1  Durnf.  &  East,  540;  and  see  id.  495.     Ante,  521. 


STAYING  PROCEEDINGS.  527 

to  the  statute  of  limitations,  against  any  objection  dehors  the  memorial, 
for  a  siijjposeJ  defect  of  consideration,  without  strong  reasons  to  the  con- 
trary.(t/)  But  where  the  objection  to  the  annuity  was,  that  some  of  the 
deeds  were  not  witnessed  by  all  the  persons  mentioned  in  the  memorial, 
the  court  on  application  set  aside  tbe  warrant  (»f  attorney,  tli(>u<.'h  at  the 
distance  of  near  tuunfi/  years,  and  after  tbe  [)rincipal  parlies  and  witnesses 
to  the  transaction  were  dead ;  tbe  merits  of  such  objection  not  depending 
on  any  testimony  lost  by  the  delay. (c)  And  a  sco-e  facias  to  revive  a 
judgment  entered  up  by  warrant  of  attorney,  given  to  secure  the  payment 
of  an  annuity,  and  n  fieri  facias  issued  thereon,  have  been  holden,  in  the 
Excbeciuer,  not  to  be  such  proceedings,  as  to  call  upon  the  grantor  of  the 
annuity  to  avail  himself  of  an  objection  to  tbe  memorial. (/) 

If  a  question,  respecting  the  validity  of  an  annuity,  has  been  decided  by 
a  court  of  competent  jurisdiction,  the  court  of  Kings  Bench  will  not  suffer 
it  to  be  agitated  again,  if  the  point  has  been  directly  determined;  but  that 
is  not  the  case,  where  the  question  has  only  incidentally  occurred,  and  has 
not  been  positively  decided. (</)  In  a  modern  case  however,  where,  upon  a 
previous  application  to  set  aside  an  annuity,  for  non-compliance  witli  the 
rc([uisitcs  of  the  act,  the  rule  was  discharged  upon  discussion  of  the  merits, 
the  court  of  King's  Bench  would  not  entertain  a  similar  application  be- 
tween the  same  parties,  on  the  same  state  of  facts,  though  grounded  upon 
a  new  objection  to  the  annuity,  which  was  not  before  urged  or  considcred.(/<) 
And  "where  a  rule  to  show  cause  is  obtained  in  this  court,  for  the  purpose 
of  setting  aside  an  annuity  or  annuities,  the  several  objections  thereto,  in- 
tended to  be  insisted  upon  by  tlic  counsel,  at  the  time  of  making  the  rule 
absolute,  must  be  stated  in  the  rule  nisi:"[i)  which  practice  has  also  been 
adopted  in  the  court  of  Common  Pleas. 

*In  an  action  of  trespass,  the  proceedings  were  stayed,  in  tlie  [  *.528  ] 
court  of  King's  Bench,  on  the  ground  that  the  plaintiff  had  be- 
fore brought  an  action  of  replevi)i,  and  recovered  damages  for  the  same 
cause  of  action. (a)  But,  in  a  qui  tarn  action  for  insuring  lottery  tickets, 
contrary  to  the  16  Geo.  III.  c.  34,  the  court  of  King's  Bench  would  not 
stay  the  proceedings,  upon  an  affidavit  of  the  defendant,  that  a  former 
action  had  been  brought  against  him  in  the  Common  Pleas,  for  the  same 
offence,  in  which  he  had  had  leave  to  compound;  but  said  he  must  plead 
such  matter  specially. (^>)  And  the  court  would  not  stay  the  proceedings, 
in  an  action  against  a  sheriff's  officer,  on  the  32  Geo.  II.  c.  2S,  §  12, 
though  a  similar  action  had  been  commenced  against  the  sheriff,  for  the 
same  offence. (c)  Yet,  where  actions  had  been  brought  against  both,  and 
a  verdict  obtained  in  each,  the  court  stayed  the  proceedin<Ts,  on  payment 
of  one  penalty,  and  the  costs  in  both  actions.((?c/)  So,  where  A.  and  B. 
having  recovered  in  separate  actions  for  libels,  against  different  parties 
engaged  in  the  management  and  pul)lication  of  the  same  newspaper,  com- 
menced fresh  actions  against  the  same  parties,  each  suing  that  party  against 

(d)  2  East,  85. 

(f)  Id.  5G3;  and  sec  8  Taunt.  435.     4  Moore,  402.     2  Bred,  k  Bing.  19,  S.  C. 

(/)  Forrest,  125. 

Iff)  6  Durnf.  k  East,  471  ;  and  see  8  Dtirnf.  &  East,  328.     2  E.ast,  85,  5C5. 

(A)   7  DurnC.  &  East,  455  :  and  see  id.  495,  540.  1  East,  537.    2  East,  5G5,  G.    13  East,  590. 

(i)  R.  T.  42  Geo.  III.  K.  B.     2  East,  5G9. 

(a)  Lamb  v.  XuU,  T.  29  Geo.  III.  K.  B. ;  and  see  1  Bing.  307. 

(6)  Cowp.  744.  (c)  2  Durnf.  &  East,  512. 

(dd)  Id.  712. 


528  OF  SETTING  ASIDE,  AND 

whom  tlic  otlicr  had  recovered,  the  court  would  not  interfere  in  a  summary 
way,  to  set  aside  the  latter  proceedings. (e)  And  where  the  plaintifi"  brought 
replevin  for  goods  levied  under  a  warrant  of  distress,  for  an  assessment 
made  by  a  special  sessions  under  the  highway  act,  13  Geo.  III.  c.  78,  §  47, 
on  tlie  ground  of  the  premises  for  which  he  was  assessed,  being  situated 
without  the  township  which  was  liable  to  repair  the  road,  the  court  of 
Common  Pleas  refused  to  set  aside  the  proceedings. (/)  And  they  would 
not  stay  proceedings  in  an  action,  on  the  ground  of  a  bill  depending  in 
Chancery  for  the  same  cause ;(^)  nor  in  order  to  abide  the  event  of  a  de- 
cision in  the  mayor's  court,  as  to  the  existence  of  the  debt,  on  a  foreign 
attachment. (/i)  So,  in  a  late  case,  the  court  of  King's  Bench  refused  to 
stay  execution  after  verdict  and  judgment,  which  was  affirmed  on  error, 
until  the  trial  of  an  indictment  for  perjury  against  two  of  the  plaintiff's 
witnesses  in  the  action ;  and  because  this  seemed  to  be  a  new  and  danger- 
ous experiment,  the  court  ordered  the  rule  to  be  discharged  with  costs. (^) 

And  where  a  true  bill  of  indictment  for  perjury  was  found,  and 
[  *529  ]  the  judge  at  the  assizes  having  refused  to  try  it,  on  *account  of 

nianife3t  imperfections  in  the  record,  a  new  bill  was  preferred, 
whereupon  the  defendant  was  found  guilty,  but  a  new  trial  Avas  granted ; 
and  then  the  prosecutor,  instead  of  taking  down  the  old  record  again,  pre- 
ferred a  new  indictment  for  the  same  offence,  and  removed  it  into  the 
King's  Bench  by  certiorari;  the  court  refused  to  stay  the  proceedings 
upon  that  indictment,  until  the  prosecutor  paid  the  costs  of  the  former 
proceedings. («) 

In  an  action  brought  against  the  sheriff,  for  money  levied  under  di,  fieri 
facias,  without  any  previous  demand,  the  court  of  King's  Bench  stayed 
the  proceedings,  upon  payment  of  the  sum  levied,  without  costs. (6)  But 
the  court  of  Common  Pleas  would  not  stay  the  proceedings,  in  an  action 
for  the  escape  of  a  certificated  bankrupt,  taken  in  execution,  and  released 
by  the  sheriff  upon  production  of  his  certificate  :[c)  nor,  in  an  action  on  a 
replevin  bond,  because  the  action  was  commenced  before  breach ;  for  it 
might  have  been  pleaded :((?)  So,  where  a  plaintiff  deposited  a  negotiable 
instrument,  on  which  he  was  suing,  in  the  hands  of  a  third  person,  at  the 
same  time  giving  him  notice  of  the  action ;  the  court  held,  that  he  did  not 
thereby  part  with  his  right  of  action  ;  and  though  the  depositary  sued  on 
the  same  instrument,  they  would  not,  at  the  instance  of  the  defendant, 
stay  the  proceedings  in  the  first  action. (ee)  And  that  court  refused  to  stay 
the  proceedings  in  an  action  brought  by  the  provisional  assignee  of  the 

(«)  2  Bos.  &  Pul.  69. 

{/)  2  New  Rep.  g.  P.  399;  and  see  6  Durnf.  &  East,  522.  8  Taunt.  521.  2  Moore,  574, 
S.  C,  accord.  Where  an  act  of  parliament  orders  a  distress  and  sale  of  goods,  as  for  a 
penalty,  after  conviction,  on  the  game  laws,  1  Str.  567.  8  Mod.  208,  9,  S.  C.  2  Str.  1184; 
or  on  the  highway  act,  1  Barnardist.  K.  B.  110;  Willes,  G68  ;  or  for  a  fine  imposed  on  an 
officer,  by  commissioners  of  land  tax,  Bunb.  14  ;  or  for  the  wages  of  labourers,  on  the  statute 
20  Geo.  II.  c.  19,  I  1 ;  3  Moore,  294,  this  is  in  the  nature  of  an  execution  ;  and  the  conviction 
being  conclusive,  a  replevin  will  not  lie :  But  the  court  in  these  cases  will  not  stay  the  pro- 
ceedings ;  though,  in  some  of  them,  they  granted  an  attachment  for  contempt  against  the 
officer  for  granting,  and  the  party  for  obtaining  the  replevm :  and  see  Gilb.  Rep.  121,  2.  Bac. 
Abr.  tit.  Eeplevin,  C.  Bradshaw's  case,  Willes,  672,  (6).  2  Blac.  Rep.  1330.  3  Maule  &  Sel. 
625.     2  Dowl.  &  Ryl.  13. 

(g)  2  Bos.  &  Pul.  137;  and  see  9  Price,  391. 

{h)  6  Taunt.  74.  (?)  4  Maule  &  Sel.  140, 

(a)  5  Barn.  &  Cres.  761.     8  Dowl.  &  Ryl.  500,  S.  C. 

h)  3  Barn.  &  Aid.  696.  (c)  4  Taunt.  631. 

(d)  5  Taunt.  776.  (ee)  1  Taunt.  109. 


STAYING  PROCEEDINGS.  529 

insolvent  debtors'  court,  on  an  objection  tliat  it  was  not  proved,  at  the 
trial  of  the  cause,  that  the  assi^^nee  had  the  authority  of  the  latter  court 
to  proceed,  pursuant  to  tlie  statute  1  Geo.  IV.  c.  Ill),  §  ll.(/) 

When  an  action  is  broui^ht  pending  a  reference,  which  it  has  been  agreed 
shall  operate  as  a  stay  of  proceedings,(</)  or  otherwise  contrary  to  good 
faith,  the  courts  will  nut  sufter  the  plaintiff  to  proceed  in  it:  And  they  will 
stay  the  jjroceedings,  when  the  action  is  brought  by  an  attorney,  without 
proper  authority;  for  otherwise  the  defendant  niigbt  Ije  twice  charged. (A) 
So,  where  an  action  was  brouglit  against  an  agent  fur  prize  money,  the 
court  of  King's  Bench  set  aside  the  proceedings,  Avith  costs  to  be  paid  by 
the  attorney;  because  the  letter  of  attorney  from  the  plaintiff,  to  receive 
the  prize  money,  Avas  not  duly  attested,  pursuant  to  the  20  Geo.  II.  c.  24, 
§  t3.(i)  And,  in  the  Common  Pleas,  Avliere  claims  were  made  on  a  prize 
agent,  by  several  persons,  for  prize  money  due  to  a  sailor,  he  was  per- 
mitted, as  a  public  officer,  to  pay  the  money  into  court,  fur  the  benefit  of 
the  claimant  who  should  prove  his  ai^^hority  to  receive  it. (A:)  But  where 
a  feme  covert  living  apart  from  her  husband,  under  a  sentence  of  separa- 
tion, with  alimony  allowed  pendente  lite  in  the  ecclesiastical 
court,  brought  trespass  in  her  ^husband's  name,  for  breaking  and  [  *530  ] 
entering  her  house,  and  takinjj  her  goods,  the  court  of  Kin^f's 
Bench  refused,  on  the  application  of  the  defendants,  to  set  aside  the  pro- 
ceedings ;  though  supported  by  an  afhdavit  of  the  husband,  that  tlie  action 
was  brought  without  his  authority. (a) 

On  showing  cause  against  a  rule  for  staying  proceedings,  in  an  action 
on  a  promissory  note,  in  the  King's  Bench,  on  an  affidavit  that  the  note 
was  obtained  without  consideration,  it  being  objected  that  the  court  would 
not  interfere  in  this  matter,  which  was  proper  for  the  trial  of  the  cause ; 
the  court  said,  it  was  often  done  on  such  applications,  if  the  other  side  did 
not  contradict  the  assertion  of  the  defendant ;  but  when  there  were  con- 
tradictory affidavits,  the  court  would  not  interfere  in  this  summary  way, 
but  put  the  defendant  to  insist  on  it  as  a  defence  at  the  trial. (i)  And 
where  an  action  had  been  settled,  by  payment  of  the  debt,  and  giving  a 
note  of  hand  for  the  costs,  amounting  to  \l.  Ws.  ^d.  which  note  not  being 
paid  on  demand,  the  plaintiff's  attorney  signed  judgment,  the  court  set  it 
aside;  saying,  that  by  taking  the  debt,  and  note  for  the  costs,  the  amount 
was  liquidated,  and  judgment  could  not  be  signed  in  an  action  that  was  so 
settled;  ami  that  an  action  might  certainly  have  been  brought  on  the  note 
in  the  county  court,  and  the  value  recovered,  at  much  less  expense  than 
by  signing  judgment  in  the  court  above. (c)  But  where  there  was  an  under- 
taking to  pay  the  costs  of  an  action  in  a  limited  time,  and  they  were  not 
so  paid,  it  was  holdcn  that  the  plaintiflf  might  proceed  in  the  action  for 
nominal  damages.(c?) 


There  are  other  grounds  for  staying  the  proceedings ;  not  absolutely, 

(/•)  3  Ring.  370.  {g)  Post,  Ch^p.  XXXVI.:  but  see  2  Moore,  30. 

(h)   1  Diiriif.  &  Ea.'t,  62.     1  Chit.  Rep.  104;  but  see  id.  VXi,  (/>).   Ante,  93. 
\i)   O'Unra  V.  Innrs,  .M.  27  Geo.  III.  K.  R. ;  and  see  the  statutes  26  Geo.  III.  c.  63,  §  1,  2. 
32  Geo.  III.  c.  34,  §  1,  2.     55  Geo.  III.  c.  60.     1  Ros.  &  Pul.  161.     Miin   Ex.  Pr.  407. 
(k)   1  Taunt.  16G.  (a)  9  East,  471 ;  and  see  2  Chit.  Rep.  392. 

\h)   Tnnv^r  v.  Tiujlor,  E.  23  Geo.  III.  K.  R. 
\c)   Brown,  Executor,  \.  Midilleton,  E.  22  (ieo.  III.  K.  B. 
id)  Butcher  v.  Holland,  II.  25  Geo.  III.  K.  B. 


530  f  P  SETTING  ASIDE,  AND 

but  for  a  time,  or  until  somctliing  be  clone  for  the  benefit  of  the  defendant: 
These  arc,  pending  a  writ  of  error ;  until  security  be  given  for  the  pay- 
ment of  costs ;  or  until  the  costs  are  paid,  of  a  former  action  for  the  same 
cause. 

A  writ  of  error  regularly  sued  out  is  a  supersedeas  of  execution,  in  the 
King's  Bench,  from  the  time  of  its  allowance  ;(e)  or,  in  the  Common  Pleas, 
from  the  delivery  of  it  to  the  clerk  of  the  errors :(/)  provided  bail,  when 
requisite,  be  put  in  thereon  in  due  time.(^)  But  this  does  not  prevent  the 
plaintifi"  from  proceeding  by  scire  facias,  or  action  of  debt  on  the  judg- 
ment, against  the  principal ;  nor,  after  the  return  of  non  est  inventus  to  a 
capias  ad  satisfaciendum,  by  scire  facias,  or  action  of  debt  on  the  recog- 
nizance, against  the  bail.  In  such  cases,  however,  if  the  writ  of  error  be 
not  evidently  brought  for  the  mere  purpose  of  delay,  the  courts  will  stay 
the  proceedings  upon  terms,  pending  the  writ  of  error. (7^)  But  this  is  not 
a  matter  of  course :(?')  and  if  it  be  apparent  to  the  court,  that  the  writ  of 
error  is  brought  merely  for  delay,  they  will  not  stay  the  proceed- 
[  *531  ]  ings.(A:)  *How  that  is  to  be  made  out,  depends  upon  the  circum- 
stances of  each  particular  case.  In  general,  the  court  will  not 
stay  the  proceedings,  where  the  defendant  or  his  attorney  has  declared, 
that  the  writ  of  error  was  brought  only  for  delay,  or  used  expressions 
tantamount  to  such  a  declaration :(«)  But  the  declaration  of  an  attorney's 
clerk, (S)  or  of  one  of  several  defendants, (c)  or  the  belief  oi  the  plaintiff,  or 
his  diXtomej ,{dd)  that  it  is  brought  for  delay,  is  not  sufficient ;  nor  that 
the  defendant  had  acknowledged  the  debt  to  be  due,  before  and  since  the 
commencement  of  the  action  ',{ee)  nor  that  he  had  said  to  the  plaintiff,  that 
when  he  could  put  off  the  matter  no  longer,  he  would  go  to  gaol  ',{ff)  nor 
that  his  attorney  had  declared,  that  the  debt  would  be  settled,  and  that 
time  was  all  the  defendant  wanted. (^^)  The  court  of  King's  Bench,  in  one 
C3ise,{hh)  ordered  the  proceedings  to  be  stayed,  pending  a  wi'it  of  error,  on 
a  judgment  of  nonsuit;  although  there  was  no  declaration  of  the  defend- 
ant, or  his  attorney,  that  it  was  brought  for  delay :  and  there  was  a  similar 
decision  in  the  Common  Pleas. (lY)  But  it  is  now  settled,  in  both  courts, 
that  the  proceedings  cannot  be  stayed,  pending  a  writ  of  error  on  such 
fudgment,  unless  some  real  error  be  pointed  out.(M)  And  where  the  de- 
fendants, on  a  judgment  recovered  in  the  Common  Pleas,  first  brought  a 

(e)  1  Salk.  321.     1  Bur.  340.  (/)  Barnes,  205,  209. 

Iff)  2  Str.  V81.     1  Durnf.  &  East.  279  ;  aiid'see  2  Chit.  Rep.  106. 

(A)  1  Str.  419.     1  Wils.  120.     3  Bur.  1389.     Cowp.  T2.     3  Durnf.  &  East,  78. 

(i)  2  Durnf.  &  East.  78, 

(k)  Carter  y.  Roberts,  M.  28  Geo.  III.  K.  B.  Per  Buller,  J.  4  Durnf.  &  East,  436,  n,  (c). 
1  Smith,  R.  335,  accord.     Cowp.  72,  semb.  contra. 

(a)  3  Durnf.  &  East,  79.  5  Durnf  k  East,  714.  2  H.  Blac.  30.  2  Bos.  &  Pul.  329. 
Forrest,  26,  7.  2  Chit.  Rep.  191.  2  Maule  &  Sel.  474,  476.  1  Barn.  &  Cres.  287.  6  Dowl. 
&  Ryl.  509.     3  Bing.  169. 

(6)  Per  Cur.  M.  45  Geo.  III.  K.  B.     2  Smith,  R.  60,  S.  C.     2  Chit.  Rep.  193. 

{c)  9  Moore,  503.     2  Bing.  304,  S.  C. 

{d)  3  Durnf.  &  East,  78.  Cleyhorn  v.  Ireland,  E.  28  Geo.  III.  K.  B.  2  Price,  299.  3 
Dowl.  &  Ryl.  233,  4. 

{ee)  6  Moore,  45. 

(/)  Per  Cur.  M.  41  Geo.  III.  K.  B.;  and  see  2  Chit.  Rep.  191.  7  Taunt.  537.  1  Moore, 
253,  S.  C.     9  Price,  606. 

{gg)  1  New  Rep.  C.  P.  307  ;  and  see  9  Price.  606.  {hh)  5  Durnf.  k  East,  669. 

{ii)  Bishop  V.  Fry,  T.  2  Geo.  IV.  C.  P. 

(M)  4  Durnf.  &  East,  436.  2  Dowl.  &  Rvl.  208,  K.  B.  1  H.  Blac.  432.  9  Moore,  609.  2 
Bing.  626,  S.  C.  C.  P. 


STAYING  PROCEEDINGS.  531 

writ  of  error  in  tlic  King's  Bench,  and  tlion  bronglit  another  returnable  in 
rjirliiiiiient,  after  which  they  nonprossed  the  first  writ  of  error,  and  then 
obtained  a  rule  to  nhow  cause,  why  the  procccdinfrs  in  an  action  upon  the 
jud<i;niont  brouglit  in  the  King's  Ik-nch  should  not  be  stayed,  pending  the 
secoTul  writ  of  error,  the  latter  court  ilischarged  the  rule  witii  costs  ;  as  it 
plainly  appeared,  from  the  defendant's  own  conduct,  tiiat  there  was  no 
foundation  for  a  writ  of  error,  and  that  it  could  only  be  brought  for  vexa- 
tious purposes.{/) 

In  order  to  stay  the  proceedings  in  an  action  of  debt  on  judgment,  pend- 
ing a  writ  of  error,  it  is  necessary,  if  the  action  be  bailable,  that  the  de- 
fendant should  be  first  in  court,  by  putting  in  and  jierfccting  bail.(/«) 
And  where  an  action  is  brought  upon  a  judgment  of  the  Common  IMeas, 
the  court  of  King's  Bench  will  not  stay  the  procceilings,  pending  a  writ  of 
error,  without  the  defendant's  giving  judgment  in  the  second  ac- 
tion,{«)  and  *undertaking  not  to  bring  a  writ  of  error  upon  that  [  *r>32  ] 
judgment.(fl)  But  if  the  action  be  brouglit  uiX)n  a  judgment  of 
the  King's  Bench,  these  terms  make  no  part  of  the  rule ;  because  in 
general,  actions  on  judgments  are  vexatious,  and  the  plaintifi'  might  have 
his  execution  on  the  first  judgment  :{b)  And  where  the  proceedings  were 
stayed  without  imposing  these  terms,  and  the  plaintiff  died  before  judg- 
ment affirmed,  the  court  would  not  afterwards  permit  judgment  to  be  entered 
nuncpro  tunc.ic) 

If  the  defendant  bring  a  writ  of  error,  after  which  the  plaintiff  bring 
an  action  on  the  judgment  and  recover,  he  cannot  sue  out  execution  on 
the  second  judgment,  in  the  King's  Bench,  till  the  writ  of  error  be  deter- 
mined.(tZ)  But  where,  several  years  having  elapsed  after  judgment  ob- 
tained, the  plaintifi' brouglit  an  action  upon  the  judgment,  and  after  judg- 
ment signed  in  that  action,  the  defendant  sued  out  a  writ  of  error  upon 
the  first  judgment ;  the  court  of  King's  Bench  held,  that  the  plaintiff 
might  notwithstanding  take  out  execution  on  the  second  judgment  :(e)  And 
80,  in  the  Common  Pleas,  the  plaintiff  may  take  out  execution  on  the 
second  judgment,  notwithstanding  the  writ  of  error,  unless  the  defendant 
move  to  stay  the  proceedings. (/) 

On  a  scire  facias,  or  action  of  dcht  on  recognizance  against  bail,  when 
a  writ  of  error  is  allowed  on  the  judgment  in  the  original  action,  bc^fore 
the  expiration  of  the  time  allowed  for  the  bail  to  surrender  their  principal, 
the  court  of  King's  Bench,  without  regard  to  the  time  when  the  applica- 
tion is  made,  will  stay  the  proceedings,  until  the  writ  of  error  be  ileter- 
mined;(^)  the  bail  undertaking  io  pay  the  condemnation  money,  or  sur- 
render the  defendant  into  the  custody  of  the  marshal,  within  four  days 
next  after  the  determination  of  the  writ  of  error,  in  case  the  same  shall  be 

{I)  2  Durnf.  &  East,  T8 ;  but  sec  C  Durnf.  &  East,  400. 

(»()  5  Diirnf.  &  East,  9.     G  Dunif.  k  East,  4r)5.     5  Burn.  &  Aid.  903. 

(n)  Per  Buller,  J.  T.  21  Geo.  HI.  K.  B.  1  Durnf.  &  East,  038 ;  and  sec  Cas.  Pr.  C.  P.  112. 
Pr.  Reg.  82,  S.  C. 

(a)  Cowp.  72.     Swann  v.  Boiil/on,  H.  35  Geo.  III.  K.  B. ;  and  see  2  Blac.  Rep.  780,  C.  P. 

{b)  Per  Buller,  J.  T.  21  Geo.  HI.  K.  B.  1  Durnf.  &  East,  038  ;  and  see  Cas.  Pr.  C.  P.  112. 
Pr.  Rep.  82,  S.  C. 

(c)   1  Durnf.  &  East,  037. 

((/)  3  Durnf.  &  Ea.at,  643.     4  Bur.  2454,  S.  P.;  but  see  1  Str.  526,  srmb.  centra. 

ic)  3  Barn.  &  Aid.  275  ;  and  see  1  Sir.  520,  accord. 

\j)  Barnes,  202.  Cas.  Pr.  C.  P.  129,  S.  C.  Willcs,  183.  Cas.  Pr.  C.  P.  159,  S.  G.  Willes, 
184.     Barnes,  203,  S.  C. 

(jf)  1  Str.  419. 


532  OF  SETTING  ASIDE,  AND 

determined  in  favour  of  the  defendant  in  error -.{Ji)  And  so,  in  tlie  Common 
Pleas,  where  the  application  is  made  by  the  bail,  within  the  time  allowed 
for  surrendering  their  principal,  the  court  w^ill  stay  the  proceedings  against 
them,  pending  the  writ  of  error,  without  their  giving  judgment  in  the  scire 
facias,  or  action  of  debt  on  the  recognizance  ;  which  would  preclude  them 
from  surrendering  the  defendant.(^)  But  if  the  bail  in  that  court  do  not 
apply  to  stay  the  proceedings  pending  error,  till  their  time  to  surrender  is 
out,  the  court  will  not  give  them  any  time  for  that  purpose,  but  on\j  four 
days  to  pay  the  money  in,  after  the  judgment  is  affirmed  :{k)  And  in  such 
case,  they  must  undertake  to  pay  not  only  the  condemnation 
[  *533  ]  money,  but  also  the  costs  of  the  action  against  themselves,  *the 
costs  of  the  application,  and,  where  there  is  no  bail  in  error,  the 
costs  of  the  proceedings  in  error. (a)  In  the  Exchequer,  when  a  writ  of 
error  is  allowed  in  the  original  action,  and  the  bail  apply  within  the  time 
allowed  them  for  surrendering  their  principal,  the  court  will  give  them  the 
same  time  to  surrender  him  after  judgment  affirmed,  or  writ  of  error  non- 
prossed, as  they  would  have  had  at  the  time  of  the  allowance  of  the  writ 
of  error  :(6)  And  where  the  application  is  not  made  by  the  bail,  until  after 
the  expiration  of  the  time  allow"ed  for  surrendering  the  principal,  the  court 
will  stay  proceedings  against  them,  until  the  writ  of  error  brought  in  the 
original  action  is  determined. (c)  But  bail,  in  that  court,  are  not  allowed 
four  days  to  surrender  their  principal,  after  the  determination  of  a  writ  of 
error,  where  the  plaintijBf  has  proceeded  by  subpoena,  and  the  writ  of  error 
was  brought  after  the  return  of  the  capias  ad  satisfaciendum.{d) 

Where  error  was  not  brought  till  it  was  too  late  for  the  bail  to  sur- 
render, the  court  of  King's  Bench  in  one  case  would  not  stay  the  proceed- 
ings.(e)  But,  in  a  subsequent  case,(/)  the  proceedings  were  stayed;  the 
bail  undertaking  to  pay  the  condemnation  money,  and  the  costs  on  the 
scire  facias,  in  four  days  after  affirmance ;  and  in  this  case,  there  being 
no  bail  on  the  writ  of  error,  the  court  made  the  bail  also  undertake  to  pay 
the  costs  on  the  writ  of  error,  in  case  the  judgment  was  affirmed;  and 
said,  it  was  a  favour  they  were  asking,  and  they  Avould  make  them  submit 
to  equitable  terms.  By  the  affirmance  of  the  judgment  in  these  cases,  is 
meant  the  final  affirmance  of  it ;  and  therefore  where  the  judgment  on  a 
writ  of  error  was  affirmed  in  the  Exchequer  Chamber,  and  afterwards  an- 
other writ  of  error  was  brought, 'returnable  in  Parliament,  the  proceedings 
against  the  bail  were  further  stayed,  till  the  determination  of  the  second 
writ  of  error. ((/) 

The  plaintiff  got  judgment  on  the  scii^e  facias  against  bail,  pending 
error  by  the  principal,  and  took  them  in  execution;  and,  on  their  moving 
to  be  discharged,  the  court  of  King's  Bench  said:  "Though  you  might 
have  applied,  and  had  the  proceedings  stayed,  yet  we  will  not  set  them 
aside :  If  an  action  of  debt  had  been  brought  upon  the  judgment,  we  should 
have  granted  an  imparlance,  if  it  had  been  asked:  but  we  never  set  aside 
the  judgment,  w'hen  it  is  once  signed ;  because  we  take  it  you,  by  your 

(A)  1  Bur.  340.     11  East,  316;  but  see  2  Str.  781,  872,  1270.     3  East,  546,  semb.  cmtra. 

{i)  Barnes,  6G,  68.     Cas.  Pr.  C.  P.  112.     Pr.  Reg.  82,  S.  C. 

(/.•)  1  New  Rep.  C.  P.  67.  11  East,  319  ;  and  see  Barnes,  86. 

(«)  1  New  Rep.  C.  P.  67.  {h)  2  Price,  296. 

(c)  Forrest,  2^.  [d)  Wightw.  79.     Ante^  284. 

(c)  1  Str.  443.  (/•)  2  Str.  877. 

{g)  5  Bur.  2819. 


STAYING  PROCEEDINGS.  533 

not  applying  in  time,  liave  submitted  to  meet  the  plaintiff.     Quod  fieri  non 
debet,  factum  vaJet.'\h) 

In  eject )nent,{i)  or  actions  quitam^ik)  when  the  lessor  of  tlie  plaintiff,  or 
the  plaintifl'  himself",  is  unknown  to  the  (k-fciidant,  tlu'  latter  may  call  for 
an  account  of  liis  residence  or  place  of  abode,  from  the  opposite  attorney; 
and  if  he  refuse  to  give  it,  or  give  in  a  fictitious  account,  of  a  person  "vvho 
cannot  be  found,  the  courts  ■will  stay  the  proceedings,  until  secu- 
rity be  *given  for  the  payment  of  costs. («)  So,  in  a  joint  action  [  *534  ] 
by  three  plaintiffs  for  a  libel,  the  defendant  may  call  on  the  at- 
torney of  one  of  them,  for  an  account  of  the  places  of  residence  and  occu- 
pations of  the  other  two.(/')  So,  in  an  action  of  trenpaHH  and  aasault,  the 
court  compelled  the  plaintiff  to  disclose  to  the  defendants  his  proper  addi- 
tion and  place  of  residence ;  his  identity  being  material  to  their  defence 
on  the  trial,  and  the  proceedings  were  staj'ed  until  the  disclosure  was 
made.(6')  And,  Avhere  the  defendant  in  assu))ij>f<it  having  pleaded  in  abate- 
ment, that  four  others  were  jointly  liable  with  himself,  the  jilaintiff  applied 
to  the  defendant's  attorney  to  give  the  places  of  residence  and  additions  of 
those  persons,  Avhich  he  refused,  unless  the  action  were  discontinued ;  the 
court  of  King's  Bench,  under  these  circumstances,  made  a  rule  absolute 
for  the  defendant  to  deliver  such  particulars,  or  in  default  thereof  for  set- 
ting aside  the  plea.(f?)  But,  except  in  the  above  instances,  the  defendant 
is  not  allowed  to  call  on  the  plaintiff's  attorney,  for  an  account  of  the  re- 
sidence or  place  of  abode  of  his  client  :(e)  And  after  verdict  in  a  penal 
action,  the  court  of  Common  Pleas  would  not  compel  an  attorney  to  dis- 
cover it.(/) 

It  was  not  formerly  usual  to  require  security  for  costs,  where  the  plain- 
tiff resided  abroad, (7)  except  in  ejeetynenf ,(Jih)  or  actions  f^?'?'  tam:(ii)  For  it 
was  considered,  that  such  a  proceeding  might  have  affected  trade,  by  ex- 
cluding foreigners  from  our  courts ;  and  would  be  a  means  of  clogging  the 
course  of  justice.  But  now,  although  a  plaintiff  is  not  compellable  to  give 
security  for  costs,  merely  as  a  foreigner,  if  he  reside  in  this  country  ;{kk) 
yet,  whether  he  be  a  foreigner  or  native,  if  he  reside  abroad,  out  of  the 
reach  of  the  process  of  the  court,  the  proceedings  may  in  general  be 
stayed,  on  a  proper  affidavit,{l)  till  his  return,  or  security  be  given  for  the 
payment  of  costs  :(77t)  And  upon  this  ground  proceedings  have  been  stayed, 

(A)  1  Str.  52G.  Barnes,  202,  accord;  but  see  4  Bur.  2454.  3  Durnf.  &  East,  643,  semb. 
contra. 

(t)  2  Str.  681.     Ad.  Eject.  2  Ed.  315. 

(k)  2  Str.  697,  705.     Barnes,  126. 

(a)  Ad.  Eject.  2  Ed.  315.  (b)  6  Moore,  110. 

(c)  5  Barn.  &  Aid.  540.     1  Dowl.  k  Ryl.  174,  S.  C. 

(d)  4  Baru.  &  Aid.  93 ;  and  see  1  Younge  &  J.  257. 

(e)  2  Str.  705;  but  sec  1  Str.  402. 

(/)  1  H.  Blac.  534;  and  see  Barnes,  126. 

Iff)  2  Str.  1206.  1  Wils.  266.  Say.  Costs,  155.  2  Bur.  1026.  4  Bur.  2105.  Cowp.  24, 
158,  322.  1  II.  Blac.  106.  And  see  2  Anstr.  359,  by  which  it  ?cems  that,  in  the  Exchequer, 
a  phiintiff  re.sldinc;  abroad  is  not  compellable  to  give  security  for  costs. 

{/ih)  2  Bur.  1177.     Say.  Costs,  531,  S.  C. 

(ii)   1  Str.  697.    2  Str.  1206.    1  Wils.  266. 

{kk)  1  Ken.  469.  Say.  Costs,  155,  C,  S.  C.  1  II.  Blac.  106.  6  Taunt.  20.  1  Marsh.  421, 
S.  C.     3  Moore.  78.     8  Taunt.  737,  S.  C. 

(I)  Append.  Chap.  XX.  §  9. 

(wj)  Elan  V.  Ree.s,  H.  24  Geo.  III.  K.  B.  Lando  v.  Corbftt  Sr  ot/icm.  M.  26  Geo.  III.  K.  B. 
1  Durnf.  &  East,  267,  362,  491.  2  U.  Blac.  118.  2  Anstr.  359.  1  Taunt.  64.  2  Chit.  Rep. 
162,  (o). 


534  OF  SETTING  ASIDE,  AND 

wlicrc  tlic  plaintiff  has  been  resident  in  Scotland, [71)  or  Ircland.{6)  So,  if 
the  plaintiff,  being  a  foreigner  by  birth,  and  having  no  house  of  trade  or 
permanent  residence  in  this  country,  has  expressed  his  determination  of 
going  abroad,  to  reside  there  permanently,  the  court  will  compel  him  to 

give  security  for  costs. (p)  And  where  the  plaintiff,  after  issue 
[  *535  ]  joined,  has  *been  convicted  of  felony,  and  received  sentence  of 

transportation,  the  court  of  King's  Bench  will  compel  him,  or  his 
attorney,  to  give  security  for  costs,  retrospective  as  well  as  prospective. (a) 
In  an  action  by  executors,  the  plaintiffs,  residing  abroad,  may  be  compelled 
to  give  security  for  costs  :(i)  And,  by  a  late  act  of  parliament,(c)  it  may 
be  required  in  an  action  for  non-residence.  A  defendant  in  replevin,  re- 
siding out  of  the  jurisdiction  of  the  court,  is  compellable  to  give  security  for 
costs.(c?)  And  where  a  plaintiff  in  error  resides  abroad,  he  may  be  com- 
pelled to  give  such  security :  and  in  default  thereof,  the  defendant  in  error 
will  be  permitted  to  proceed  on  his  judgment,  notwithstanding  the  Avrit  of 
error. (e)  The  rule  requiring  such  security,  however,  has  been  relaxed  by 
the  court  of  Common  Pleas,  in  favour  of  foreign  seamen,  serving  on  board 
English  ships ;(/)  or  being  in  the  habit  of  navigating  them  to  and  from 
the  ports  of  this  country  :(^)  And  where  the  plaintiff  was  a  prisoner  in 
France,{li)  or  an  English  officer  serving  in  South  America,{i)  that  court 
refused  to  grant  a  rule,  compelling  him  to  give  security  for  costs.  The 
reason  for  obliging  a  plaintiff  to  give  such  security,  is  not  mutual :  There- 
fore, where  a  defendant  moves  that  the  plaintiff,  residing  abroad,  should 
give  security  for  costs,  the  court  will  not  make  the  rule  mutual,  on  the 
ground  that  the  defendant  is  also  resident  abroad. (A)  If  the  plaintiff  be  a 
native  of  England,  and  go  abroad  for  a  mere  temporary  purpose,  the  court 
will  not  compel  him  to  give  security  for  costs.  (Z)  And  if  one  of  several 
plaintiffs  reside  in  this  country,  the  courts  will  not  require  security  to  be 
given  for  costs,  though  the  other  plaintiff  be  a  foreigner,  residing  abroad  ;(m) 
even  though  the  first-mentioned  plaintiff  be  a  bankrupt,  in  execution  for 
deht.(nn)  In  the  Exchequer,  plaintiffs,  being  resident  in  a  foreign  country, 
out  of  the  jurisdiction,  may  be  restrained  from  proceeding,  until  they  give 
security  for  costs.  (00) 

The  above  are  the  principal,  and  were  formerly  considered  as  the  only 
grounds  upon  which  the  proceedings  can  be  stayed,  for  want  of  security 
for  costs  :  It  being  holden,  that  they  shall  not  be  stayed,  even  in  eject- 
ment,{pp)  or  a  qui  tarn  action, ((^^)  merely  on  account  of  the  poverty  of  the 
plaintiff,  or  his  lessor;  or  because  the  plaintiff  is  protected  as  a  foreign 

{n)  M'Lean  v.  Austin,  M.  36  Geo.  III.  K.  B.  Sherify.  Farguharson,  M.  37  Geo.  III.  K.  B. 
S.  P.     6  Taunt.  3*79.     2  Marsh.  80,  S.  C;  but  see  2  Bur.  1026. 

(0)  1  Durnf.  &  East,  362.  Stillv.3PIver,  M.  36  Geo.  III.  K.  B.  2  Chit.  Rep.  151,  4 
Moore,  356.     5  Barn.  &  Aid.  265.     1  M'Clel.  &  Y.  213. 

(p)  5  Barn.  &  Aid.  908.     1  Dowl.  &  Ryl.  560,  S.  C.  (a)  1  Barn.  &  Aid.  159. 

(b)  3  Moore,  602.     1  Brod.  &  Bing.  277,  S.  C.  (c)  57  Geo.  III.  c.  99,  §  45. 

(d)  4  Moore,  280.     1  Brod.  &  Bing.  505,  S.  C.  (e)  5  Barn.  &  Aid.  265. 

(f)  2  H.  Blac.  383.     1  Bos.  &  Pul.  96. 

(ff)  2  Taunt.  253  ;  and  see  3  Moore,  33.  8  Taunt.  711,  S.  C.  (h)   1  Taunt.  18. 

(i)  3  Moore,  77.     8  Taunt.  736,  S.  C.  (h)  6  Taunt.  379.     2  Marsh.  80,  S.  C. 

(1)  2  Chit.  Rep.  152  ;  and  see  7  Moore,  613. 
(m)  1  East,  431.     7  Taunt.  307. 

(nn)  1  East,  431.     1  Marsh.  478,  n.  (oo)   13  Price,  603  ;  and  see  id.  489. 

(pp)  Cas.  Pr.  C.  P.  15;  and  see  2  Str.  1121.  Goodlitle  v.  3Iayo,  H.  29  Geo.  III.  K.  B. 
Ante,  98,  9, 

(yy)  Cowp.  24.     Barnes,  126.     2  H.  Blac.  27. 


STAYING  PROCEEDINGS.  535 

ambappador/r)  or  liis  servant ;(«)  or,  in  ejectment,  -wlicre  the  lesf?or  of  the 
plaintiil'  is  known,  of  full  age,  and  resident  in  this  country. (f) 
The  court  *of  Kinj^'s  IV-nch  will  not  stay  proceedings  on  a  quo  [  *53G  ] 
warranto  information,  until  the  f)rosecutor  give  security  for  costs, 
on  the  ground  that  the  relator  is  in  insolvent  circumstances,  -where  it  ap- 
pears that  he  is  a  corporator,  and  no  fraud  is  suggested. (a)  And  the  court 
of  Common  Pleas  refused  to  require  the  plaintiff  to  give  security  for  costs, 
although  it  was  sworn  that  he  was  insolvent,  and  that  the  action  was 
brought  in  his  name,  for  the  benefit  of  J.  S.  who  was  alone  beneficially 
interested  in  the  result. (/')  So,  Avhere  an  insolvent  de])tor,  having  assigned 
liis  property  under  the  insolvent  acts,  brought  an  action  to  recover  a  debt 
incurred  before  the  assignment,  the  assignees  having  refused  to  sue,  that 
court  would  neither  set  aside  the  proceedings  in  such  action,  nor  require 
the  insolvent  to  give  security  for  costs. (c)  But  where  the  plaintiff  had 
been  discharged  under  the  insolvent  act,  after  issue  joined  and  before  no- 
tice of  trial  given,  the  court  of  King's  Bench  stayed  the  proceedings,  until 
the  assignee,  or  some  creditor  of  the  plaintiff,  should  give  security  for 
costs.(cZ)  And  where,  in  trespass  against  parish  officers  for  distraining  for 
poors'  rates,  it  appeared  that  the  plaintiff  had  refused  to  pay  the  rates  by 
the  desire  of  his '  landlord,  who  was  also  attorney  in  the  cause,  the  court 
stayed  the  proceedings,  until  he  gave  security  for  the  costs. ((^)  An  infant 
plaintiff  cannot  be  compelled  to  give  security  for  costs,  on  the  ground  of 
the  insolvency  of  his  prochein  ami ;{f)  nor  an  uncertificated  bankrupty 
suing  for  his  own  benefit,  as  for  the  produce  of  his  earnings  since  the  bank- 
ruptcy ;{c/)  though  it  is  otherwise,  where  the  action  is  brought  or  proceeded 
in  by  a  bankrupt,  whether  certificated  or  uncertificated,  for  the  benefit  of 
his  assignees :(//)  And  where  the  plaintiff  having  become  bankrupt  before 
plea  pleaded,  the  defendant  obtained  an  order  for  giving  security  for  costs, 
and  afterwards  pleaded  bankruptcy,  the  court  of  King's  Bench  held  that 
the  plea  could  not  be  set  aside ;  but  that  the  order  for  giving  security  for 
costs  should  be  rescinded,  the  plaintiff  paying  the  costs  of  that  application, 
and  the  defendant's  rule  discharged. (i)  So,  where  a  commission  of  bank- 
rupt issued  against  the  plaintiff,  who  was  gone  with  his  family  to  Kew 
York,  upon  the  petition  of  the  defendant,  who  was  the  onl}^  creditor,  and 
chose  himself  sole  assignee ;  and  the  plaintiff  brought  an  action  against 
the  defendant,  to  try  the  commission ;  the  court  of  Common  Pleas  refused 
to  stay  the  proceedings,  till  he  should  give  security  for  costs ;  for  in  this 
case,  the  defendant  having  possessed  himself  of  all  the  plaintiff's  property 
as  assignee,  had  thereby  rendered  it  impossible  for  the  latter  to  give  any 

(r)  5  Manle  &  Sel.  503. 

(.s)  nririfx  qui  tarn  v.  Solomon,  T.  25  Geo.  III.  K.  B. ;  but  see  2  P.  "Wms.  4,"i2.  1  Eq.  Cas. 
Abr.  350.  pi.  4. 

(t)  1  Ournf.  k  East,  491;  and  see  2  II.  Blac.  383.  1  Bos.  k  Pul.  OG.  2  Bos.  k  Piil.  23G, 
437.     All.  Eject.  2  Ed.  315,  16. 

(a)  2  Maule  &  Sel.  346  ;  and  see  2  Chit.  Rep.  3G0,  (a).  (b)   T  Moore,  344. 

(c)  6  Taunt.  123.     1  .Marsh.  477,  S.  C. 

(rf)  2  Barn,  k  Cres.  579.     4  Dowl.  &  Ryl.  81,  S.  C. 

(e)  5  Barn,  k  Cres.  208. 

(/•)  1  yUxrsh.  4.     2  Dowl.  k  Rvl.  423;  and  .see  2  Chit.  Rep.  359.     Ante,  102. 

(ff)  Cohni  V.  licU,  T.  44  Goo.  "ill.  K.  B. ;  and  see  7  Durnf.  k  East,  297.  1  East,  431.  2 
Taunt.  61.     7  Moore.  345. 

{/,)  7  Durnf.  &:  East,  20G.  Sanders  v.  riir.ir,  H.  35  Geo.  III.  K.  B.  Cohen  v.  Bell,  T.  44 
Geo.  III.  K.  B.  3  Maule  &  Sel.  283.  RoberUona  V.  Arnold,  H.  58  Geo.  III.  K.  B.  2  CUit. 
Rep.  150.  / 

(i)  1  Obit.  Rep.  215. 


536  OF  SETTING  ASIDE,  AND 

]ilcclgc  or  counter  security  to  those  ayIio  miglit  become  bound  for 
[  *5o7  ]  liiui.(/t)     *And  that  court  would  not  compel  such  security,  in  an 

action  brought  by  assignees,  on  the  ground  that  one  of  the  plain- 
tiffs was  a  bankrupt,  and  the  other  a  prisoner  in  Newgate.{ci) 

The  motion  for  a  rule  to  compel  security  for  costs,  should  in  all  cases 
be  made  as  soon  as  the  defendant  can  reasonably  do  it,  after  knowledge  of 
the  fact  of  the  plaintiff's  residence  abroad  ;{b)  and  a  rule  has  been  granted, 
in  the  King's  Bench,  after  plea  pleaded :(6')  but  where  it  might  have  been 
made  earlier,  it  comes  too  late  after  issue  joined,  and  notice  of  trial 
given. ((7)  In  the  Common  Pleas,  on  moving  for  a  rule  nisi,  to  compel  the 
plaintiff  to  give  security  for  costs,  the  defendant  must  state  in  what  stage 
the  proceedings  are ;  and  the  court  will  not  grant  the  rule  7iisi,  in  a  cause 
in  which  interlocutory  judgment  has  been  signed,  until  the  judgment  has 
been  set  aside. (e)  But  in  that  court  it  does  not  seem  to  be  necessary  that 
the  motion  should  be  made  before  issue  joined ;(/)  though,  after  a  defend- 
ant has  undertaken  to  accept  short  notice  of  trial,  he  cannot  compel  a 
plaintiff,  resident  abroad,  to  give  security  for  costs.(^)  In  the  Exchequer, 
the  application  ought  to  be  made  in  the  earliest  stage  of  the  proceedings ; 
and  the  court  will  not  grant  it  in  any  case,  after  issue  joined. (A)  The  de- 
fendant, if  sued  alone,  must  put  in  bail  previous  to  the  application  :(^)  But 
if  a  foreigner  sue  two  defendants,  and  only  one  of  them  put  in  bail,  that 
one  may  require  the  plaintiff  to  give  security  for  costs,  without  putting  in 
bail  for  the  other  defendant. (^)  It  was  formerly  the  practice,  in  the  King's 
Bench,  to  compel  the  plaintiff  to  give  security  for  costs,  without  requiring 
a  previous  application  to  be  made  to  him,  or  his  attorney  :(/)  but  it  was  after- 
wards determined,  that  where  the  plaintiff  resided  in  this  country,  the  court 
would  not  grant  a  rule  requiring  him  to  give  such  security,  on  the  ground 
of  bankruptcy,  &c.  unless  application  had  been  made  to  him  for  that  pur- 
pose, (m)  A  distinction  however  was  made,  between  compelling  security 
for  costs,  and  ordering  a  stay  of  proceedings ;  it  having  been  determined, 
that  where  the  plaintiff  resided  abroad,  the  court  would  compel  security 
for  costs,  without  a  previous  application  to  his  attorney ;  but  they  would 
not  order  a  stay  of  proceedings,  unless  such  application  had  been  made.(?i) 
And  at  length  it  was  decided,  agreeably  to  the  original  practice,  and  seems 
to  be  now  settled,  that  the  court  will  grant  a  rule  for  the  plaintiff  to 
give   security  for   costs,   though   an   application  has  not  been  made   to 

(k)  2  New  Rep.  C.  P.  352, 

(a)  2  Taunt.  61. 

(b)  2  Chit.  Rep.  151,  («). 

(c)  Id.  151 ;  and  for  the  form  of  the  rule  nisi  in  K.  B.  see  Append.  Chap.  XX.  |  10. 

(d)  5  East,  338.    v.  Cazenovc,  T.  44  Geo.  III.  K.  B.    2  Chit.  Rep.  359.    Du  Belloix 

V.  Lord  Wnterpark,  E.  2  Geo.  IV.    1  Dowl.  &  Ryl.  348,  (a).    5  Barn.  &  Aid.  702.    1  Dowl.  & 
EyI.  348,  S.  0.  accord.     6  Durnf.  &  East,  597,  contra. 

(e)  1  Marsh.  376. 
if)   J'!-  4,  5. 

(</)  3  Taunt.  272;  and  see  Steel  v.  Lacy,  id.  273,  (a).  I  Brod.  &  Bing.  218, per  Dallas,  Ch. 
J.     7  Moore,  361.     1  Bing.  67,  S.  C. 

(h)  5  Price,  610  ;  and  see  1  M'Clel.  &  Y.  213. 

(i)  4  Diirnf.  &  East,  697.     2  Chit.  Rep.  152. 

(k)  6  Durnf.  &  East,  496. 

(l)  Per  Baylcy,  3.     1  Barn.  &  Aid.  332. 

(wi)  3  Maule  &  Sel.  283 ;  and  see  2  Smith,  R.  661. 

(»}  I  Earn,  &  Aid.  331 ;  and  see  2  Chit.  Rep.  151. 


STAYING  PROCEEDINGS.  537 

hiin,  if  it  appear  upon  the  *affi(lavits,  that  the  ease  is  such  as  to  [  *538  ] 
require  the  security  to  be  given. (f/) 

In  a  second  ejectment,  the  courts  will  stay  the  proceedings,  until  the 
costs  are  paid  of  a  prior  one,  for  the  trial  of  the  same  title  ;(/>)  and  also  the 
costs  of  an  action,  if  any  has  been  brought,  for  the  mesne  profits. (<;•)  In 
other  actions,  it  was  not  formerly  usual  to  stay  the  proceedings  in  a  second 
action,  until  the  costs  were  paid  of  a  prior  one  for  the  same  cause  ;(»/)  and 
partieularly  if  the  merits  did  not  come  in  question  on  the  former  trial. (c) 
And  there  is  said  to  be  no  general  rule,  by  whieh  a  plaintitV  is  compelled 
to  j)ay  the  costs  of  a  first  action,  before  he  is  suffered  to  proceed  with  the 
second:  If  that  were  the  case,  it  might  in  many  instances  work  inju.stice; 
for  the  plaintiff  might  have  no  other  means  of  paying  the  costs,  than  by 
proceeding  for  the  recovery  of  his  dcbt.(/)  And  therefore,  where  a  plain- 
tiff having  declared  in  af<i<u))ipf(it,  against  trustees  of  a  turnpike  road 
generdUjj,  went  to  trial,  and  withdrew  his  record,  and  after  suffi-riuf  him- 
self to  be  nonprossed,  sued  the  same  trustees  a  second  time  A//  name,  for 
the  same  cause  of  action;  the  court  refused  to  stay  the  proceedings  in  the 
second  action,  until  the  costs  of  the  first  were  paid. ((7)  So  where  a  plain- 
tiff, being  nonsuited,  was  taken  in  execution  by  the  defendant  for  the  costs, 
and  whilst  in  execution,  brought  another  action  for  the  same  cause :  the 
court  refused  to  stay  further  proceedings  in  the  second  actirm,  until  the 
costs  of  the  first  were  paid. (A)  And  it  seems,  that  where  proceedings  have 
been  set  aside  for  irregularity,  the  plaintiff  is  not  bound  to  pay  the  costs 
of  them,  before  he  commences  a  fresh  action. (e)  But  in  actions  of  tort,  for 
a  malicious  arrest  or  prosecution,  or  for  a  trespass,  &c.  the  court  will  compel 
the  plaintiff  to  pay  the  costs  of  a  first  action,  before  he  is  allowed  to  pro- 
ceed in  a  second  for  the  same  cause :(/f)  And  in  actions  for  the  recovery 
of  a  debt,  though  they  will  not  in  general  stay  the  proceedings  in  a  second 
action,  until  the  costs  of  a  former  one  are  paid,  yet  of  late  years  this  has 
been  done  in  several  instances,  on  the  ground  of  vexation ;(/) 
and  *that,  Avhether  the  former  action  was  in  the  same  or  a  dif-  [  *539  ] 
ferent  court.(art)     In  the  King's  Bench,  this  practice  was  not  for- 

(a)  2  Chit.  Rep.  l.'iO.  And  for  the  form  of  the  notice  of  motion,  and  ajjldavit  to  sta_v  pro- 
ceedings, till  security  be  given  for  costs,  see  Append.  Chap.  XX.  g  8,  9.  And  for  tiie  rule 
in  K.  B.  for  stij'ing  proceedings  in  ejectment,  till  such  security  be  given,  see  Append.  Chup. 
XLVI.  I  89. 

{h)  1  Salk.  255,  258,  9.  1  Str.  548,  554.  8  Mod.  225,  S.  C.  2  Str.  1152,  120G.  ^S'miVA 
ex  dim.  Jordan  v.  Roe,  M.  22  Geo.  III.  K.  B.  1  Durnf.  &  East,  492.  1  Chit.  Hep.  195,  K.  B. 
Pr.  Reg.  174.  Barnes,  133.  2  Blac.  Rep.  904.  Say.  Costs,  239,  S.  C.  2  Blac.  Rep.  1158, 
1180,  C.  P. 

(c)  4  East,  585.  But  they  will  not  extend  the  rule,  so  as  to  include  the  damar/cs  in  the 
action  for  the  mesne  profits,  however  vexatious  the  proceedings  of  the  lessor  of  the  plaintiff 
may  have  been.     15  East,  233. 

(d)  2  Str.  1206.  Cov/p.  322.  Say.  Costs,  251,  S.  C.  1  Durnf.  &  East,  491,  2,  K.  B. 
Barnes,  125,  C.  P.;  but  see  1  Vent.  100. 

(c)   1  Ld.  Raym.  697.     2  Blac.  Rep.  809.     1  IT.  Blac.  10. 

(/)  7Vr  Bat/leif,  J.  3  Dowl.  &  Ryl.  54.     8  Dowl.  &  Ryl.  43. 

Iff)  3  Dowl.  &  Rvl.  53. 

("/()  8  Dowl.  k  Ryl.  42. 

(t)  2  riiit.  Rep.  146. 

(k)  2  Durnf.  k  Ea.-^t,  511.     8  Taunt.  407.     2  Moore,  460,  S.  C.     3  Dowl.  &  Rvl.  54. 

(7)  Bondv.  Goorh,  K.  23  Ceo.  III.  K.  B.  Sav.  Costs,  245,247.  2  Blac.  Rep.  741.  3  Wils. 
149,  S.  C.  C.  P. ;  but  see  1  H.  Blac.  10.     2  Sniith,  R.  423. 

{aa)  Nevitt  v.  Lade,  E.  24  Geo.  III.  K.  B.  1  Taunt.  565.  8  Taunt.  407.  2  Moore,  460. 
S.  C. 


I 


539  OF  SETTING  ASIDE,  AND  STAYING  PROCEEDINGS. 

merly  confined  to  cases  where  a  trial  was  had  in  the  former  action ;  but 
applied  equally  where  the  cause  was  put  an  end  to  by  a  judgment  of  non- 
ros,{a)  or  as  in  a  case  of  nonsuit.(6)  And,  where  an  action  was  brought 
y  husband  and  wife,  the  court  stayed  the  proceedings,  until  the  payment 
of  costs  in  a  former  action,  at  the  suit  of  the  husband  only ;  it  being  for  the 
same  demand. (c)  In  the  Common  Pleas,  the  court,  it  is  said,  never  inter- 
feres, unless  the  merits  of  the  case  have  been  tried  in  the  former  action.((Z) 
But  where  the  plaintiff  discontinued  an  action  stayed  in  the  King's  Bench 
by  a  consolidation  rule,  and  commenced  an  action  against  the  same  de- 
fendant for  the  same  cause  in  the  Common  Pleas,  that  court  stayed 
the  proceedings,  until  after  the  trial  of  the  cause  mentioned  in  the 
rule.(e)[l] 

(a)  Nevitt  v.  Lade,  E.  24  Geo.  III.  K.  B.     1  Taunt.  565.     8  Taunt.  407.     2  Moore,  460, 
S  C 
' (b)  Per  Cur.  M.  41  Geo.  III.  K.  B.     Ad.  Eject.  2  Ed.  318. 
(cy  Lampley  and  ivife  v.  Sands,  H.  25  Geo.  III.  K.  B. 
\d)  3  Bos.  &  Pul.  23,  {a)  ;  and  see  2  Blac.  Rep.  809.     1  H.  Blac.  10. 
(e)   1  Taunt.  565. 

[1]  It  may  here  be  proper  to  notice,  as  connected  with  the  subject  of  staying  proceed- 
ings, the  provisions  of  the  statute  1  &  2  W.  IV.  c.  58,  to  enable  courts  of  law  to  give  relief 
against  adverse  claims,  made  upon  persons  having  no  interest  in  the  subject  of  such  claims. 
These  provisions  are  of  two  kinds  ;  first,  such  as  relate  to  the  property  in  money  or  goods, 
where  claims  are  made  by  different  parties,  one  of  whom  has  brought  an  action  against  the 
person  in  possession  of  them,  and  the  defendant  does  not  claim  any  interest  therein ;  and 
secondly,  for  the  relief  of  sheriffs  and  other  officers,  in  execution  of  process  against  goods 
and  chattels. 

Before  the  making  of  the  above  statute,  it  often  happened,  that  a  person  sued  at  law  for 
the  recovery  of  money  or  goods,  wherein  he  had  no  interest,  and  which  were  also  claimed 
of  him  by  some  third  party,  had  no  means  of  relieving  himself  from  such  adverse  claims, 
but  by  a  suit  in  equity  against  the  plaintiff  and  such  third  party,  usually  called  a  bill  of 
Interpleader,  which  was  attended  with  expense  and  delay ;  for  remedy  whereof,  it  is  enacted 
by  the  above  statute,  that  "  upon  application  made  by  or  on  the  behalf  of  any  defendant, 
sued  in  any  of  his  majesty's  courts  of  law  at  Westminster,  or  in  the  court  of  Common  Pleas 
of  the  county  palatine  of  Lancaster,  or  the  court  of  pleas  in  the  county  palatine  oi  Durham, 
in  any  action  of  assumpsit,  debt,  detinue,  or  trover,  such  application  being  made  after  decla- 
ration and  before  plea,  by  affidavit  or  otherwise,  showing  that  such  defendant  does  not  claim 
any  interest  in  the  subject-matter  of  the  suit,  but  that  the  right  thereto  is  claimed,  or  sup- 
posed to  belong  to  some  third  party,  who  has  sued,  or  is  expected  to  sue  for  the  same,  and 
that  such  defendant  does  not  in  any  manner  collude  with  such  third  party,  but  is  ready  to 
bring  into  court,  or  to  pay  or  dispose  of  the  subject-matter  of  the  action,  in  such  manner 
as  the  court,  or  any  judge  thereof,  may  order  or  direct;  it  shall  be  lawful  for  the  court,  or 
any  judge  thereof,  to  make  rules,  and  orders,  calling  upon  such  third  party  to  appear,  and 
to  state  the  nature  and  particulars  of  his  claim,  and  maintain  or  relinquish  his  claim ;  and 
upon  such  rule  or  order,  to  hear  the  allegations  as  well  of  such  third  party  as  of  the  plain- 
tiff, and  in  the  mean  time  to  stay  the  proceedings  in  such  action  ;  and  finally,  to  order  such 
third  party  to  make  himself  defendant  in  the  same,  or  some  other  action,  or  to  proceed  to 
trial  on  one  or  more,  feigned  issue  or  issues ;  and  also  to  direct  which  of  the  parties  shall  be 
plaintiff  or  defendant  on  such  trial;  or,  with  the  consent  of  the  plaintiff  and  such  third 
party,  their  counsel  or  attorneys,  to  dispose  of  the  merits  of  their  claims,  and  determine  the 
same,  in  a  summary  manner;  and  to  make  such  other  rules  and  orders  therein,  as  to  costs 
and  all  other  matters,  as  may  appear  to  be  just  and  reasonable :  Stat.  1  &  2  W.  IV.  c.  58, 
§  1 ;  and  that  the  judgment  in  any  such  action  or  issue  as  may  be  directed  by  the  court  or 
judge,  and  the  decision  of  the  court  or  judge  in  a  summary  manner,  shall  be  final  and  con- 
clusive against  the  parties,  and  all  persons  claiming  hj,  from,  or  under  them."     Id.  §  2. 

"  That  if  such  third  party  shall  not  appear,  upon  such  rule  or  order,  to  maintain  or  relin- 
quish his  claim,  being  duly  served  therewith,  or  shall  neglect  or  refuse  to  comply  with  any 
rule  or  order  to  be  made  after  appearance,  it  shall  be  lawful  for  the  court  or  judge  to  declare 
such  third  party,  and  all  persons  claiming  by,  from,  or  under  him,  to  be  for  ever  barred  from 
prosecuting  his  claim  against  the  original  defendant,  his  executors  or  administrators ;  saving, 


OF  PAYING  DEBT  AND  COSTS,  ETC.  *540 


♦CIIAPTER    XXI. 
Of  Compromising,  and  Compounding  the  Action. [a] 
When  the  proceedings  are  regular,  and  cannot  be  stayed,  on  any  of  the 


nevertheless,  the  right  or  clftini  of  such  third  party  ftgainst  tiie  phiintifT;  ftiid  tliereiipon  to 
make  such  order,  between  such  defendant  and  the  phiintiff,  as  to  costs  and  other  nuUters, 
a3  may  appear  just  and  reasonable."     Id.  \  3. 

"  Provided  always,  that  no  order  shall  be  made  in  pnrsuance  of  that  act,  by  a  single 
judge  of  the  court  of  pleas  of  the  said  county  palatine  of  Durham,  who  shall  not  also  be  a 
judge  of  one  of  the  said  courts  at  Westinimtcr :  and  that  every  order  to  be  made  in  pursu- 
ance of  that  act,  by  a  single  judge  not  sitting  in  oi)cn  court,  shall  be  liable  to  be  rescinded 
or  altered  by  the  court,  in  like  manner  as  other  orders  made  by  a  single  judge."  Id.  §  4. 
"Provided,  also,  that  if,  upon  application  to  a  judge  in  the  first  instance,  or  in  any  later 


[a]  The  compromise  of  doubtful  claims  is  a  good  consideration  to  uphold  a  contract,  and 
courts  will  not  investigate  the  merits  or  demerits  of  the  ditl'erent  claims,  for  the  purpose  of 
setting  aside  such  compromise.  Fisher  v.  May,  2  Bibb,  449.  Taylor  v.  Patrick,  1  Bibb,  1G8, 
S.  P.  Union  Bank  v.  Geary,  5  Pet.  114.  But  a  compromise  obtained  from  a  party  ignorant 
of  his  rights,  will  be  set  aside  by  a  court  of  chancery.  Anderson  v.  Bacon,  1  Marsh.  51.  Or 
founded  on  misinformation  and  delusion.  Mosby  v.  Leeds,  3  Call,  439.  Or  if  it  be  obtained 
from  a  plaintiff,  through  the  misrepresentation  of  a  witness,  and  by  the  inliuence  of  his  tes- 
timony and  the  persuasion  of  arbitrators  to  whom  the  matter  in  di.-put(!  had  iieen  suljiuittcd, 
if  the  defendant  knew  of  slich  misrepresentation,  and  unduly  availed  himself  of  such  influ- 
ence,    lloge  v.  Iloye,  1  Watts,  163. 

A  party  who  has  agreed  by  way  of  compromise,  to  abide  the  action  of  the  legislature  on 
his  rights,  cannot,  in  avoidance  of  his  agreement,  avail  himself  of  the  unconstitutionality  of 
an  act  that  destroys  his  claim.  ^Valker  v.  Lipton,  3  Dana,  5.  Where  two  parties  claim  title 
to  land,  and  they  compromise  by  one  party's  conveying  the  land  with  warranty,  and  the 
other  party  pacing  him  a  sum  of  money  for  such  conveyance,  the  adjustment  is  binding  if 
there  be  no  fraud  or  imposition  in  obtaining  it.  Moore  v.  Fitzivatcr,  2  Rand.  442.  A  pro- 
missory note,  given  to  compromise  a  contingent  liability,  cannot  be  avoided  by  showing  that 
the  maker  was  not  in  fact  or  in  law  liable,  llolcomb  v.  Stimpxon,  8  Verm.  141.  If  j)arties 
compromise  after  an  action  of  ejectment  is  brought,  and  the  defendant  buys  the  idaintiff's 
title  and  mortgages  the  premises  to  secure  the  purchase  money,  and  judgment  is  obtained 
on  the  mortgage,  and  the  premises  are  sold,  and  an  action  of  ejectment  is  brought  to  recover 
possession,  the  defendant  cannot  in  this  action,  defend  his  possession  by  the  same  evidence 
which  he  might  have  given  in  the  first  action.  The  compromise  concludes  him.  BennetCx. 
I'aine,  5  Watts,  259.  Paine  v.  Bennett,  2  Watts,  427.  If  a  vendor  of  land  covenants  that  if 
any  part  of  it  is  lost,  he  will  convey,  of  another  tract,  two  acres  for  one,  and  a  paramount 
title  appears,  of  whichj  the  vendor  has  notice,  and  he  sells  the  laud  out  of  which  indem- 
nity was  to  be  made  for  a  price  per  acre  equal  to  that  which  he  received  for  the  tract  first 
sold,  he  may  be  held  accountable  to  the  first  vendee  for  the  proceeds  of  twice  as  many  acres 
as  he  lost,  though  the  amount  be  double  the  sum  which  such  vendee  paid  for  it ;  and  the 
vendor's  bond  given  for  a  compromise  on  this  principle  cannot  be  relieved  against.  Butler  v. 
Triplett,  1  Dana,  154. 

Propositions  made  by  either  party,  on  a  treaty  for  compromising  their  diffionltics,  if  in- 
effectual, are  not  to  be  used  in  evidence  in  a  future  action  in  court.  Baird  v.  Rice,  1  Call, 
18.  Williams  v.  Price,  5  M\inf.  507.  Spcncc  v.  Spcnce,  4  Watts,  1(38.  Miller  v.  Halsri/,  2 
Green,  49.  A  fortiori,  an  unaccepted  ofl'er  of  compromise  cannot  be  set  up  in  bar  of  an 
action  on  the  disputed  claim,  2  Green,  49.  Nor  is  an  unexecuted  agreement  of  compromise 
evidence,  on  trial  between  the  i)arties.  Sjieiice  v.  Spmce,  4  Watts,  10.").  Where  a  suit  has 
been  compromised,  and  a  doubtful  question  settled,  it  will  not  be  opened  unless  there  has 
been  fraud  or  imposition,  especially  where  the  agreement  of  compromise  indicates  an  inten- 
tion to  end  the  matter  iu  dispute.      ]yorralVs  Accounts,  5  Watts  &  Serg.  HI.     A.  and  B. 


540  OF  PAYING  DEBT  AND  COSTS,  ETC. 

grounds  stated  in  tlic  preceding  chapter,  the  defendant  in  general,  if  lie 

stn"-e  of  the  proceedings,  he  sliall  think  the  matter  more  fit  for  the  decision  of  the  conrt,  it 
shall  be  lawful  for  him  to  refer  the  matter  to  the  court ;  and  thereupon  the  court  shall  and 
may  hear  and  dispose  of  the  same,  in  the  same  manner  as  if  the  proceeding  had  originally 
commenced  by  rule  of  court,  instead  of  the  order  of  a  judge."     Id.  g  5. 

This  statute  is  confined  to  actions  of  assumpsit,  debt,  detinue,  and  trover:  and  therefore, 
where  the  declaration  contained  a  count  in  case,  as  well  as  in  trover,  the  court  would  not 
interfere:  Laicre.nce  v.  Mattheu-s,  5  Dowl.  Rep.  149.  12  Leg.  Obs.  230,  S.  C.  And  the  court 
cannot  give  relief  to  stakeholders,  who  are  only  threatened  with  proceedings  :  an  action 
must  be  brought,  and  the  plaintiff  declare,  before  the  court  can  interfere.  I'arker  v.  Lin- 
nett,  2  Dowl.  Rep.  502.  8  Leg.  Obs.  398,  S.  C,  per  Patteson,  J.  So,  where  a  defendant  ob- 
tained a  rule  under  the  interpleader  act,  upon  a  suggestion  that  a  third  party  claimed  the 
amount  in  his  hands  for  which  he  was  sued,  and  it  afterwards  appeared  tliat  the  defendant 
had  no  just  expectation  that  he  should  be  sued  by  the  third  party,  the  court  discharged  the 
rule,  with  costs.  Harrison  v.  Payne,  2  Hodges,  107.  It  has  also  been  decided,  that  a  party 
who,  by  his  own  act,  is  placed  in  a  situation  to  be  sued,  cannot  call  on  the  court  to  substi- 
tute another  defendant  in  his  stead:  Belcher  v.  Smith,  9  Bing.  82.  2  Moore  &  S.  184,  S.  C. 
And  the  liolder  of  title  deeds  cannot  apply  to  the  court  for  protection  against  opposing 
claims.  S)iiith  v.  Wheeler,  1  Gale,  163.  So,  a  rule  for  interpleading  will  not  be  granted, 
after  a  suit  has  been  stayed  by  injunction.  Arayne  v.  Lloyd,  1  Bing.  N.  R.  720.  1  Hodges, 
166.  1  Scott,  609,  S.  C.  And  a  contested  claim  to  a  reward  advertised  for  the  apprehen- 
sion of  a  felon,  cannot  be  made  the  subject  of  a  motion  under  the  above  act.  Grant  v.  Fry, 
4  Dowl.  Rep.  135.  ColUs  v.  Lee,  1  Hodges,  204.  A  defendant  who  is  sued  for  the  recovery 
of  property  in  his  possession,  in  which  he  has  no  interest,  but  which  is  claimed  by  a  third 
person,  cannot  apply  to  be  relieved  under  the  interpleader  act  against  the  claims  of  the 
plaintiff  and  such  third  party,  if  he  has  an  indemnity  from  the  claimant.     Tucker  v.  Morris, 

1  Dowl.  Rep.  639.  1  Cromp.  &  M.  73,  S.  C.  And  the  case  of  a  wharfinger,  who  claims  a 
lien  on  goods  for  wharfage,  &c.,  which  attaches  only  upon  one  of  the  parties  by  whom  the 
goods  are  claimed,  is  not,  it  seems,  within  the  meaning  of  the  statute.     Braddick  v.  Smith, 

2  Moore  &  S.  131.  9  Bing.  84,  S.  C;  but  see  Gladstone  v.  White,  1  Hodges,  386.  But  a  lien 
attaching  upon  the  goods  in  dispute,  and  which  must  be  satisfied  by  whichever  party  ulti- 
matelyturns  out  to  be  entitled  to  them,  does  not  prevent  the  party  who  holds  the  goods  from 
applying  to  the  court  for  relief,  under  the  above  act.  Cotter  v.  Bank  of  England,  3  Moore 
&  S.  180.  2  Dowl.  Rep.  728,  S.  0.  And  where  goods  consigned  to  A.  and  warehoused  at 
the  London  docks,  were  claimed  by  B.,  and  the  dock  company  having  required  an  indem- 
nity of  A.,  the  original  consignee,  before  delivering  them  to  him,  A.  refused,  and  brought  an 
action  of  trover,  with  counts  for  special  damage,  for  the  detention :  on  motion  by  the  company 
for  relief,  under  the  interpleader  act,  B.not  appearing  upon  due  notice,  the  court  held  that  the 
claim  of  B.  against  the  company,  was  barred ;  but  that  A.  ought  not,  by  reason  of  the  act, 


being  in  litigation  with  regard  to  a  tract  of  land,  entered  into  articles  of  compromise  by 
which  it  was  agreed  that  B.  should  "  have  full  possession  of  the  land,"  reserving  to  A.  "  the 
one  half  of  a  mill  site."  Held,  that  these  articles  of  agreement  conveyed  to  B.  no  title,  and 
did  not  estop  A.  from  asserting  any  subsequently  acquired  rights  against  B.,  or  any  purchase 
from  him.  Walton  v.  Neuson,  1  Humph.  140.  Where  one  party  offers  to  pay  or  give  the 
other  a  certain  sum  by  way  of  compromise,  and  the  offer  is  rejected,  it  is  in  no  way  obliga- 
tory; nor  is  it  an  admission  of  the  fact  that  the  defendant  owed  the  sum  offered;  and  when 
a  proposition  of  that  kind  is  rejected,  the  rights  of  the  parties  remain  precisely  as  they  were 
before  it  was  made.  Poteat  v.  Budget,  4  Dev.  &  Batt.  208.  A  party's  admission  of  particular 
facts  are  receivable  in  evidence  against  him,  though  they  were  made  while  he  was  negotia- 
ting for  a  compromise.  Dickinson  v.  Dickinson,  9  ilet.  471.  3Ioimt  v.  Bogert,  Anthon,  190. 
In  the  trial  of  an  action  of  trover,  evidence  was  received  that  the  defendant,  while  negoti- 
ating with  the  plaintiff  for  a  compromise  of  the  suit,  admitted  that  he  had  sold  the  property 
in  question,  and  that  the  plaintiff'  had  demanded  it  of  him,  and  that  the  plaintiff  then  said 
to  him,  •'  I  suppose  you  would  do  better  by  me  than  you  offered  yesterday."  Held,  that 
these  admissions  of  the  defendant  were  properly  received,  and  that  though  the  words  spoken 
by  the  plaintiff,  if  they  had  been  unconnected  with  the  other  conversation  of  the  parties, 
would  have  been  inadmissable,  yet  that  they  were  not,  when  taken  in  connection  with  that 
other  conversation,  so  objectionable  as  to  require  that  the  verdict  for  the  plaintiff  should  be 
set  aside.  Dickinson  \.  Dickinson,  9  Met,  471.  The  rule  excluding  offers  of  compromise 
made  by  a  party,  from  being  given  in  evidence  against  him,  was  much  considered  in  Brown  v. 
Shields,  6  Leigh,  440,  which  will  repay  perusal. 


OF  PAYING  DEBT  AND  COSTS,  ETC.  540 

has  no  merits,  citlier  settles  or  compromises  the  action,  by  paying  or 
giving  security  for  the  debt  ami  costs,  compounils  it,  (if  penal,)  confesses 
it,  or  lets  judgment  go  by  default. 

In  actions  for  the  recovery  of  a  sum  certain,  where  the  parties  are  agreed 
as  to  the  amount  of  the  debt,  it  is  of  course  to  stiiy  the  proceedings,  on  pay- 
ment of  the  same,  together  with  the  costs  of  the  action. (a)  But  Avhere  the 
prothonotary,  on  a  rule  to  stay  proceedings  on  payment  of  debt  and  costs, 
refused  to  allow  costs,  on  account  of  gross  miscf»nduct  on  the  part  of  the 
plaintifi"'s  attorney,  the  court  of  Common  Pleas  would  not  direct  the  pro- 
thonotary to  review  his  taxation. (i)  If  the  parties  are  not  agreed,  the 
defendant  cannot  move  to  stay  the  proceedings ;  but  must  either  pay  into 
court,  on  the  common  rule,  what  he  conceives  to  be  due,  or  let  judgment  go 
by  default:  and,  in  actions  (or  general  damages,  wherein  the  defendant  can- 
not pay  money  into  court,  he  has  no  option,  but  must  let  judgment  go  by 
default,  unless  he  can  settle  amicably  with  the  plaintiff.  A  judge's  order, 
that  upon  payment  of  debt  and  costs  by  a  certain  day,  all  proceedings  shall 
bo  sta3'ed,  is  only  conditional  on  the  defendant :  and  therefore,  if  the  debt 
and  costs  are  not  paid,  the  plaintiff  must  proceed  in  the  action. (c)  But  the 
order  is  sometimes  drawn  up,  so  as  to  make  it  obligatory  on  the  defendant 

{(t)  For  the  form  of  the  summons  and  order,  to  stay  proceedings,  on  payment  of  debt  and 
costs,  see  Append.  Chap.  XXI.  ?  1,  2. 
(6)   1  Bing.  C9.    7  Moore,  3(30,'  «.  C. 
(c)  11  East,  319;  and  see  2  New  Rep.  0.  P.  473.   8  Moore,  102. 

to  be  precluded  from  recovering  for  his  special  damage,  if  any ;  Lucas  v.  London  Dock 
Company,  4  Barn.  &  Ad.  378.  Where  an  auctioneer  has  one  action  brought  against  him 
in  the  Common  Pleas,  ami  another  in  the  King's  Bench,  by  different  claimants,  for  the  same 
property,  he  must,  in  order  to  relieve  himself  under  the  Interpleader  act,  obtain  rules  in 
botli  courts;  Allen  v.  Gillt;/,  3  Dowl.  Rep.  143  :  And  if  part  of  a  sum  claimed  by  the  par- 
ties has  been  paid  to  one  of  them,  before  an  adverse  claim  made,  the  adverse  claimant  has 
a  right  to  have  the  whole  sum  he  claims  paid  into  court,  on  the  holder's  applying  for  relief 
under  the  act;  Alhnv.  (lill<]i,  3  Dowl.  Uep.  143. 

On  an  application  to  a  judge  at  chambers,  under  the  interpleader  act,  an  order  having 
been  made,  by  consent  of  all  parties,  to  refer  the  cause,  on  certain  terms,  to  a  barrister, 
instead  of  an  issue  being  directed,  the  court  refused  to  grant  a  rule  nisi  for  varying  the 
order,  by  introducing  a  fresh  term  into  the  reference,  in  consequence  of  information  wiiicli 
one  of  the  parties  (an  administratri.v)  had  obtained,  since  the  hearing  at  chambers  ;  Drake 
V.  Broicn,  2  Cromp.  M.  &  R.  270.  And  where  the  plaintiff,  in  an  issue  directed  under  the 
interpleader  act,  does  not  proceed  to  the  trial  of  it,  the  court  will  not  jjeruiit  another  per- 
son's name  to  be  substituted,  without  making  the  plaintiff  originally  appointed  a  ]>arty  to 
the  rule.  Li/fhil  v.  JJiddlr,  5  Dowl.  Rep.  244.  The  costs  of  the  applicant,  where  he  has 
acted  I'ond  fide,  will,  in  the  first  instance,  be  directed  to  be  paid  out  of  the  fund,  or  i)ro- 
ceeds  of  the  goods  in  dispute,  to  be  repaid  by  the  party  ultimately  unsuccessful ;  Duear  v. 
Mackintosh,  3  Moore  &  S.  174.  2  Dowl.  Rep.  734,  S.  C.  \^<i(l<'r  v.  JJank  <>/  Eni/lnnd,  3  Moore 
&  S.  180  2  Dowl.  Rej).  728,  S.  C.  rarkcr  v.  Linnet,  2  Dowl.  Rep.  .')G2.  8  Leg.  Obs.  31*8,  S.  C. 
per  J'atlCKon,  J.  A(/ar  v.  Blolhyn,  1  Tyr.  &  G.  160.  And  wiiere  an  issue  has  been  directed 
by  the  court,  to  try  the  rights  of  contending  parties  to  the  property  in  question,  and  the 
intermediate  party  has  paid  money  into  court,  to  abide  llie  event  of  the  issue,  the  success- 
ful party  cannot  move  to  have  the  money  ])aid  out  to  him,  until  final  judgment  ha?  been 
signed;  Cooper  v.  Lead  Smelling/  Cowpan;/,  2  Moore  k  S.  714,  810.  1>  Bing.  ♦534.  1  Dowl. 
Rep.  728,  S.  C.  For  the  notice  of  motion,  and  rules  of  court  in  tiiis  rase,  see  Append,  to 
Tidd.  Sup.  1833,  p.  29G,  7.  In  the  Exchequer,  a  rule  nisi,  under  the  first  section  of  the  in- 
terpleader act,  is  no  stay  of  proceedings,  unless  notice  of  the  motion  for  that  purpose  has 
been  given  to  the  parties  against  whom  it  has  been  obtained  ;  Smith  v.  Wheeler,  9  Leg.  Obs. 
318.  And  nlthongli,  it  has  been  said,  cause  cannot  he  shown  at  chambers  against  such  a 
rule  obtained  by  a  sheriff,  under  the  sixth  section  of  the  act,  Slimc  v.  Roberts,  2  Dowl.  Rep. 
25.  G  Leg.  Obs.  444,  5,  .S.  C.  Brackenliury  v.  Laurie,  3  Dowl.  Rep.  180,  I'CT  Alderson,  B. ;  but 
see  I'oueler  v.  Lock,  4  Nev.  k  M.  852,  3,  per  Ld.  Dennian,  Ch.  J.  Jienmes  v.  Cross,  4  Dowl. 
Pep.  122.  Ilaileji  [or  Haines)  v.  Disney,  1  Hodges.  1K9,  2  Scott,  183,  S.  C.  contra,  yet  it  may 
be  so  shown,  wiiere  the  rule  has  been  obtained  undor  the  lirst  section  ;  Smith  v.  Whieler  1 
Gale,  15.  3  Dowl.  Rep.  4;!1.  9  Leg.  Obs.  318,  S.  C.  ' 

Vol.  i.—oi 


540  OF  PAYING  DEBT  AND  COSTS,  ETC. 

to  pay  the  costs,  in  which  case  the  phiintlff  rjay  proceed  for  the  recovery  of 
them  by  attachment.(f?)  And  an  attorney  who  stays  proceedings,  upon 
an  undertaking  to  pay  costs,  is  bound  to  fulfil  his  engagement,  although 
his  client  die  before  bail  is  put  in.(e) 

The  practice  of  staying  the  proceedings,  on  payment  of  the  debt  and 
costs,  though  frequently  confounded  with,  is  in  reality  very  different  from 
that  of  bringing  money  into  court,  on  the  common  rule  ;  upon  which  the  pro- 
ceedings are  not  always  stayed,  but  the  plaintiff  is  at  liberty  to  proceed 
at  his  peril,  for  more  than  the  sum  brought  in :  And  the  practice  we  are 
now  treating  of  extends  to  every  sort  of  action,  brought  for  the 
[  *541  ]  recovery  of  a  *sum  certain ;  as  assumpsit  or  covenant  to  pay 
raoney,(a)  and  dcht  for  rent,(/>)  &c.  If  separate  actions  are 
brought  against  the  acceptor,  drawer,  and  indorser  of  a  bill  of  exchange, 
the  court  of  King's  Bench  will  stay  proceedings  against  the  drawer,  or 
any  of  the  indorsers,  on  payment  of  the  bill,  and  costs  of  that  action ; 
but  not  against  the  acceptor,  without  payment  of  costs  in  all  the  actions  :(c) 
And  if  the  plaintiff  proceed  to  judgment,  the  proceedings  may  still  be 
stayed,  on  payment  of  the  debt  and  costs  ;(c?t?)  but  in  that  case,  each  de- 
fendant is  only  liable  for  his  own  costs,  and  the  plaintiff  cannot  take  out 
execution  against  one  defendant,  for  the  costs  of  another.  So,  where 
separate  actions  were  brought  against  several  persons  for  the  same  debt, 
who,  (if  at  all)  were  jointly  liable,  the  defendant  in  one  action  having 
paid  the  debt  and  costs  in  that  action,  the  court  stayed  the  proceedings 
in  the  others,  without  costs. (t'(^)  Where  an  indorsement  was  made  upon  a 
note  of  hand  by  the  payee,  that  if  the  interest  was  paid  on  stipulated 
days  during  his  life,  the  note  should  be  given  up ;  default  having  been 
made  in  payment  of  the  interest,  the  court  of  Common  Pleas  refused  to 
stay  the  proceedings,  on  payment  of  it,  and  costs. (/) 

In  debt  for  the  penalty  of  five  pounds,  for  killing  a  hare,  with  no  other 
count,  the  court  of  King's  Bench  let  the  defendant  bring  in  the  penalty 
and  costs. (</)  And  where  the  action  was  brought  for  several  penalties, 
the  defendant  had  leave  to  pay  one  penalty  into  court,  leaving  the  plain- 
tiff at  liberty  to  proceed  for  the  rest.(7i)  In  deht  on  a  single  bill,  proceed- 
ings were  stayed  by  the  court  of  Common  Pleas,  on  payment  by  the 
obligor  of  principal  and  costs,  without  interest. (i)  And  so,  in  deht  on  bond, 
conditioned  for  the  performance  of  covenants,  or  to  account,  indemnify,  &c. 
or  on  a  bastardy  bond,  the  proceedings  may  be  stayed,  on  payment  of  the 
•whole  penalty  and  costs. (^)  But,  in  an  action  on  a  money  bond,  the 
court  of  King's  Bench,  in  one  case,(Z)  would  not  stay  the  proceedings,  on 
payment  of  the  penalty ;  being  of  opinion,  that  damages  might  be  reco- 
vered beyond  that  amount.     This  case,  however,  seems  to  have  been  since 

{d)  11  East,  321.    Barnes,  283.    Pr.  Reg.  259. 

(e)   10  Moore,  360.    3  Bing.  70,  S.  C. 

(a)  8  Durnf.  &  East,  326,  410.  {h)  Cas.  temp.  Hardw.  173. 

(c)  4  Durnf.  &  East,  691 ;  but  see  2  Barn.  &  Aid.  192.  2  Dowl.  &  Ryl.  57.  Ante,  315. 

{dd)  1  Str.  515. 

(ee)  6  Barn.  &  Cres.  124.    9  Dowl.  &  Ryl.  126,  S.  0.  (/)  4  Taunt.  227. 

[g)  2  Str.  1217  ;  and  see  2  Ken.  292.    2  Blac.  Rep.  1052. 

(h)  Per  Cur.  E.  22  Geo.  III.  K.  B.  Ilarcourl  v.  Kna2)p,  H.  23  Geo.  III.  K.  B. 

(i)  1  Bos.  &  Pul.  337 ;  but  see  2  Ld.  Raym.  773. 

{k)  2  Blac.  Rep.  1190.  6  Duruf.  &  East,  303.  1  Taunt.  220.  2  Marsh.  226;  and  see  6 
East,  110. 

(I)  2  Durnf.  &  East,  388  ;  and  see  Ry.  &  Mo.  105. 

{m)  6  Durnf.  &  East,  303.  1  Taunt.  220 ;  and  see  1  Atk.  75.  Doug.  49.  3  Bro.  Chan.  Cas. 
489,  496.    1  East,  436.    3  Price,  219.    1  Madd.  Chan.  613.    Ry.  &  Mo.  105. 


OF  PAYING  DEBT  AND  COSTS,  ETC.  541 

overruled  ;(m)  antl  it  is  now  settled,  that  the  proceedings  may  be  stayed 
in  all  cases,  on  payment  of  the  penalty  and  costs.  We  have  already  secn,(?^) 
in  wliat  cases  the  courts  will  stay  the  proceedings,  in  actions  upon  bail 
bonds :  It  will  be  sufficient  to  add  in  this  place,  tiiat  as  tiie  bail  may  ren- 
der the  principal,  after  an  as.sigumcnt  of  the  bail  bond,  and  before 
they  justify,(o)  so,  wlien  they  have  rendered  him,  tiie  proceedings  [  *542  ] 
on  the  bail  bond  maybe  stayed,  on  payment  of  costs,(a)  provided 
the  plaintiff  has  not  lost  a  trial.  But  in  order  to  stay  the  proceedings  on 
the  bail  bond,  the  bail,  in  the  Common  Pleas,  must  pay  the  costs  of  the 
actions  against  the  principal  and  the  other  bail,  as  well  as  the  debt  and 
his  own  costs  [{b)  though  it  is  otherwise  in  the  King's  Bench,  wliere  the 
court,  we  have  seen,{t')  will  stay  the  proceedings  in  all  the  actions  on  the 
bail  bond,  on  payment  of  the  costs  of  one  of  them.  In  an  action  of  debt 
on  recognizance,  where  the  proceedings  are  stayed  on  payment  of  the 
debt  and  costs,  the  bail  above  must  pay  the  costs  in  tliat,  as  well  as  the 
debt  and  costs  in  the  original  action,  though  they  apply  within  the  time 
allowed  them  for  surrendering  tlie  principal  :(d)  But  where  the  principal 
is  surrendered  in  time,  the  plaintiff  cannot  afterAvards  proceed  against  the 
bail,  for  the  recovery  of  costs,  in  the  action  on  the  recognizance.(t') 

In  debt  on  bond,  conditioned  for  the  payment  of  a  less  sum,  it  was  usual 
for  the  courts,  even  before  the  statute  4  Ann.  c.  IG,  §  13,  to  relieve  the  de- 
fendant against  the  penalty  of  the  bond,  on  payment  of  the  principal,  inte- 
rest and  costs;  but  then  the  whole  penalty  must  have  been  brought  into  court, 
and  Avhen  the  plaintiff  was  satisfied,  the  defendant  might  have  taken  what 
remained. (/)  By  the  above  statute  it  is  enacted,  that  "if  at  any  time, 
pending  an  action  upon  any  such  bond  with  a  penalty,  the  defendant  shall 
bring  into  court  all  the  principal  money  and  interest  due  on  the  bond,  and 
also  such  costs  as  have  been  expended  in  any  suit  or  suits  in  law  or  equity 
upon  such  bond,  the  said  money,  so  brought  in,  shall  be  deemed  and  taken 
to  be  in  full  satisfaction  and  discharge  of  the  said  bond  ;  and  the  court  shall 
and  may  give  judgment  to  discharge  every  such  defendant  of  and  from  the 
same  accordingly."  Upon  this  statute,  the  application  to  the  court  may  be 
and  is  usually  made  before  judgment :((/)  And  in  an  action  upon  a  bond, 
conditioned  for  the  payment  of  money  generally,  without  naming  any  day 
of  payment,  the  court  of  King's  Bench  will  refer  it  to  the  master  to  com- 
pute interest,  as  well  as  the  principal  and  costs  ;(/()  interest  being 
due  on  such  a  bond,  though  not  *e.\pressly  reserved. (aa)   And  the   [  *o43  ] 

(h)  Ante,  302,  3.  (o)  5  Durnf.  &  Enst,  401. 

(a)  5  Duruf.  &  East,  534  ;  and  sec  7  Durnf.  &  East,  529.   2  Durnf.  &  East,  222. 

(6)  2  niac.  Rep.  81G.  (c)  AnU,  300. 

(rf)  5  Durnf.  &  East,  363.    3  Bos.  &  Pul.  13,  accord. 

(e)  JJiiwsim  V.  Shulcr,  T.  26  Geo.  III.  K.  B.  Jiartrnm  tj-  othert  r.  TIoh-cU,  T.  31  Geo.  III. 
K.  B.  3  East,  306.  16  East,  108,  9 ;  and  see  R.  T.  1  Ann.  rcg.  1  K.  B.  R.  M.  16r)4,  I  12,  C.  P. 
It  was  indeed  said  by  the  court,  upon  reference  to  the  master,  in  the  case  of  Hughes  v. 
I'oiiievin,  15  East,  254,  that  it  was  usual  to  pay  the  costs,  when  the  proceeding  on  the  re- 
cognizance was  by  action  ;  and  accordingly  a  rule  was  made  in  tiiat  case,  for  the  payment 
of  them  ;  and  a  similar  rule  was  made,  in  the  case  of  Thomax  v.  lini/lcti's  bail,  E.  53  Geo. 
III.  K.  B.  But  these  decisions  were  overruled  by  the  court,  in  a  subsequent  caso  of  Cres- 
wcll  V.  Ileum  .V  another,  1  Maule  &  Sol.  742.  And  it  seems  to  be  now  settled,  as  staled  in 
the  te.\t,  tliat  where  the  principal  is  surrendered  in  time,  the  plainlHf  cannot  afterwards 
proceed  against  the  bail,  for  the  recovery  of  cost.",  in  an  acliou  on  the  recognizance. 

(/)  2  Salk.  597.  6  Mod.  101  ;  and  see  3  Bur.  1370. 

{g)  3  .Moore,  590. 

(h)  For  the  notice  of  motion  for  this  purpose,  sec  Append.  Chap.  XXI.  \  3. 

{aa)  7  Durnf.  &  East,  124  ;  but  see  1  Dos.  &  Pul.  337.  Ante,  541. 


5  13  OF  PAYING  DEBT  AND  COSTS,  ETC. 

plaintiff  is  entitled  to  the  costs  of  proceedings  in  equity,  relating 
to  the  same  matter  ;(/>/>)  but  not  to  the  costs  of  a  former  suit,  wherein  the 
judgment  has  been  reversed  on  a  writ  of  error  :{cc)  for  there  is  no  reason, 
why  tlie  defendant  should  pay  for  the  error  or  mistake  of  the  plaintiif.  In 
the  Exchequer,  the  court  granted  an  application,  on  behalf  of  the  defen- 
dants, to  refer  it  to  the  master,  to  see  what  was  due  for  principal  inte- 
rest and  costs  on  a  bond,  which  was  the  cause  of  action ;  and  to  stay  all 
proceedings,  upon  payment  of  the  sum  due  and  costs. (fZ)  But  that  court 
would  not  refer  it  to  the  master,  to  take  an  account  of  what  was  actually 
due  for  principal  and  interest  upon  a  bond,  after  it  had  been  put  in  suit, 
and  the  plaintiff  had  obtained  a  verdict  thereon. (<?) 

It  was  formerly  holden,  that  this  statute  did  not  extend  to  an  action  of 
debt  on  bond,  conditioned  for  the  payment  of  an  annuity^  or  of  money  by 
instalments. (/)     But  it  is  now  settled,  upon  the  equity  of  the  statute, 
tliat  in  such  an  action,  when  the  defendant  is  solvent,  the  courts  will  stay 
the  proceedings,  on  payment  of  the  arrears  and  costs,  and  giving  judg- 
ment as  a  security  for  future  payments,  with  a  stay  of  execution  till  they 
become  due  '.{g)   And  where,  in  an  action  on  an  annuity  bond,  it  appeared 
that  there  were  mutual  accounts  subsisting  between  the  parties,  the  court 
of  King's  Bench  made  a  rule  for  referring  them  to  the  master;  and  that 
upon  payment  of  what,  if  anything,  should  be  found  due  to  the  plaintiff, 
all  further  proceedings  should  be  stayed. (/t)     But  the  courts  will  not  stay 
the  proceedings,  when  the  defendant  appears  to  be  insolvent ;  or  the  bond 
is  conditioned  for  the  payment  of  a  gross  sum  of  money  absolutely,  at  a 
day  certain,  and  afterwards  defeazanced,  in  consequence  of  a  subsequent 
agreement  to  pay  the  money  by  instalments  ;{i)  or  where,  though  the  bond 
be  conditioned  for  the  payment  of  money  by  instalments,  it  is  expressly 
agreed,  that  if  default  be  made  in  any  one  payment,  the  bond  is  to  stand 
in  force  for  the  whole  principal  and  interest  then  remaining  due.(^)     So, 
where  the  defendant  gave  a  warrant  of  attorney  to  secure  a  sum  certain, 
to  be  paid  half  yearly  by  instalments,  with  interest,  on  specified  days,  and 
that  the  plaintiff  should  be  at  liberty  to  enter  up  judgment  tliereon  imme- 
diately, "  but  no  execution  to  be  issued,  till  default  made  in  payment  of 
the  said  sum,  with  interest  as  aforesaid,  by  the  instalments,  and  in  the 
manner  hereinbefore  mentioned;"  the  court  held,  that  the  plaintiff  might 
take  out  execution  for  the  whole,  on  default  of  payment  of  the  first  instal- 
ment. (^)     If  default  be  made  in  payment  of  the  interest  on  a 
[  *544  ]    bond,  the  principal  whereof  is  not  yet  due,  the  courts  will  not 
stay  proceedings,  on  *payment  of  the  interest  and  costs ;(«)  but 
judgment  must  be  entered  as  a  security  for  future  payments,  with  a  stay 
of  execution  till  they  become  dae ;  though  it  seems  that  execution  may  in  such 
case  be  restrained  to  the  intere-st  and  costs. (r/)    And  if  an  instalment  of  an 
annuity  secured  by  bond,  be  not  paid  on  the  day,  the  bond  is  forfeited, 
and  the  penalty  is  the  debt  in  law ;  therefore,  where  the  defendant  had 

[bh]  Cas.  temp.  Hardw.  116  ;  but  see  2  Str.  699,  contra.  [cc]  2  Str.  699. 

[d)  M'CleL  309. 

(e)  3  Price,  219.  (/)  1  Atk.  118.    1  Str.  515. 

{</)  2  Str.  814,  957.    2  Blac.  Rep.  706.  Barnes,  288.  1  Barn.  &  Aid.  214;  and  see  2  Barn. 
&  Ores.  82.   3  Dowl.  &  Ryl.  278,  S.  C. 

(A)  Wdkinmn  .J-  Jordan,  H.  23  Geo.  III.  K.  B. 

(i)  3  Rur.  1370.  (/c)  2  Blac.  Rep.  953. 

(Z)  1  Maule  &  Sel.  706. 

{a)  2  Taunt.  3S7.    1  Barn.  &  Aid.  214. 


OF  PAYING  DEBT  AND  COSTS,  ETC.  544 

been  charged  in  execution  for  tlie  penalty  of  1000/.  under  such  circum- 
stances, previous  to  the  insolvent  act  of  84  Geo.  III.  c.  69,  the  court  of 
King's  Bench  refused  to  order  that  sum  to  be  reduced  in  the  marshal's 
book,  to  the  sum  actually  due  for  the  arrears  of  the  annuity,  in  order  that 
he  might  take  the  benefit  of  that  act.(/>) 

In  actions  for  j/oural  damages,  it  is  a  rule,  that  the  proceedings  cannot 
be  stayed,  on  making  satisfaction  to  the  plaintiff:  And  accordingly,  in  an 
action  against  the  sheriff,  for  a  false  return  to  a  fieri  facias,  the  court  of 
King's  Bench  refused  to  stay  the  proceedings,  on  payment  of  the  money 
levied. (c)  But  there  are  some  exceptions  to  this  rule.  In  replevin  for  in- 
stance, where  the  defendant  avows  for  rent,  the  courts  will  stay  the  pro- 
ceedings, on  bringing  it  into  court,  and  payment  of  costs, (</)  But  the  pro- 
ceedings cannot  be  stayed,  when  the  avowry  is  for  damage  feazant  ;[e) 
because  the  courts  in  such  case  have  no  rule  to  guide  them  in  ascertaininji 
the  damages.  Where  the  defendant  in  replevin  made  cognizance  as  bailiff 
of  the  lord  of  a  manor,  under  a  distress  on  the  plaintiff  as  constable  of  a 
township,  for  palfre}'  rent,  the  court  of  Common  Pleas  would  not  stay  the 
proceedings,  upon  payment  of  costs,  on  the  application  of  the  defendant. (/) 
But,  in  a  subsequent  case,  where  cognizance  was  made  by  the  defendants, 
as  bailiffs  of  the  commissioners  appointed  by  an  inclosure  act,  under  a 
warrant  of  distress,  for  non-payment  of  several  sums  of  money,  ordered 
by  the  commissioners  to  be  paid  by  the  plaintiff  by  virtue  of  the  said  act, 
the  proceedings  in  replevin  were  stayed  by  the  court  of  King's  Bench,  on 
payment  of  the  costs  of  the  action  and  distress  and  replevying  the  goods, 
and  delivering  up  tlie  replevin  bond  to  be  cancelled ;  there  being  no  spe- 
cial damage.(<7)  There  is  indeed  a  case,  where  the  latter  court,  under 
particular  circumstances,  stayed  the  proceedings  in  an  action  of  ^?-cs/)ass  for 
seizing  goods,  on  the  defendant's  undertaking  to  restore  the  goods,  or  pay 
the  full  value  of  them,  with  the  costs  of  the  action :(//)  But  this  seems  to 
be  contrary  to  their  usual  practice,  in  actions  of  that  nature ;  and  in  a 
subsequent  case,  the  court  of  Exchequer  refused  to  stay  the  proceedings 
in  such  an  action,  upon  the  like  terms,  where  it  would  not  end  the  suit, 
and  particularly  as  the  value  of  the  goods  was  not  admitted. (i)  So,  where 
the  assignees  of  a  bankrupt,  in  their  own  names,  and  not  in  their  charac- 
ter of  assignees,  brought  trespass  against  the  sheriff  and  execution  credi- 
tor, for  seizing  goods,  consisting  of  stock  on  a  farm  which  had  belonged 
to  the  bankrupt,  and  on  the  issuing  of  the  commission,  the  assignees  took 
possession  of  the  farm,  managed  it  for  the  benefit  of  the  creditors,  and 
purchased  additional  stock  and  farming  utensils,  and  continued  in  posses- 
sion several  months  before  the  goods  were  seized  by  the  sheriff  under  a 
fieri  facias ;  the  court  of  King's  Bench  refused  to  stay  the  proceedings 
in  the  action  of  trespass.     7  Barn.  &  Ores.  379. 

*In  trover  for  money,  the  courts  will  give  the  defendant  leave  [  *545  ] 
to  bring  it  into  court  ;{a)    And  where  trover  is  brought  for  a  spe- 
cific chattel,  of  an  ascertained  quantity  and  quality,  and  unattended  with 
any  circumstance  that  can  enhance  the  damages  above  the  real  value,  the 
courts  will  make  an  order  for  staying  the  proceedings,  upon  delivering  it  to 

[h)  G  Durnf.  &  East,  39!) ;  but  see  2  Blac.  Rep.  760. 

(r)  7  Durnf.  &  East,  335. 

(rf)  2  Salk.  597.   1  H.  Blac.  24.   1  Bos.  &  Bui.  382.  (e)  8  Mod.  379. 

( /•)  3  Bos.  &  Pul.  603.  (y)  3  .Maule  &  Sel.  525. 

(h)  7  Durnf.  &  East,  53.  (i)  3  Anstr.  896.  (a)  1  Str.  142. 


545  OF  WARRANTS  OF  ATTORNEY. 

the  plaintiff,  and  payment  of  costs  :(J)  And  this  is  the  more  reasonable,  as 
the  action  of  trover  comes  in  place  of  the  old  action  of  detinue.  But  the 
courts  will  not  stay  the  proceedings,  ^\hen  there  is  an  uncertainty,  either  as 
to  the  quantity  or  quality  of  the  thing  demanded  •,{cc)  or  there  is  any  tort 
that  may  enhance  the  damages  above  the  real  value,  and  there  is  no  rule 
^vhereby  to  estimate  the  additional  damages. (t?)  In  trover  for  a  promissory 
note,  alleged  to  have  been  dishonoured,  the  court  of  King's  Bench  made 
an  order  for  staying  the  proceedings,  upon  delivering  up  the  note,  and 
payment  of  costs,  with  liberty  for  the  plaintiff  to  proceed  for  damage  sus- 
tained, but  not  for  nominal  damages,  by  reason  of  the  detention. (e)  And, 
in  a  subsequent  case,  where  trover  was  brought  by  the  assignees  of  a 
bankrupt,  for  a  steam  engine,  &c.,  the  court  made  a  special  rule  for 
staying  the  proceedings,  on  delivering  to  the  plaintiffs  a  part  of  the  goods 
for  which  the  action  was  brought,  and  payment  of  costs  up  to  that  time, 
provided  the  plaintiffs  would  accept  thereof  in  discharge  of  the  action  ;  or 
otherwise,  that  the  articles  delivered  should  be  struck  out  of  the  declara- 
tion, and  the  plaintiffs  be  subject  to  costs,  unless  they  should  obtain  a 
verdict  for  the  remainder  of  the  goods,  or  prove  a  deterioration  of  the  part 
delivered  up.(/)  But,  in  an  action  of  trover^  where  the  value  of  the  goods 
converted  was  not  ascertained,  the  court  of  Common  Pleas  refused  to  stay 
proceedings,  upon  delivery  of  the  goods  to  the  plaintiff,  or  payment  of  the 
value  of  them.(^) 


The  security  usually  given  by  the  defendant  to  the  plaintiff,  on  com- 
promising an  action,  and  which  is  also  frequently  given  where  no  action  is 
depending,  is  a  warrant  of  attorney ;  so  called,  from  its  authorizing  the 
attorney  or  attorneys,  to  whom  it  is  directed,  to  appear  for  the  defendant, 
and  receive  a  declaration,  in  an  action  to  be  brought  against  him,  and 
thereupon  to  confess  the  same  action,  or  suffer  judgment  therein  to  pass  by 
default,(7t)  &c.  And,  by  a  late  rule  of  all  the  courts,(i)  "  every  attorney, 
and  side  clerk  in  the  office  of  pleas  of  the  Exchequer,  or  other  person  who 
shall  prepare  any  warrant  of  attorney  to  confess  judgment,  which 
[  *546  ]  is  to  be  *subject  to  any  defeazance,  must  cause  such  defeazance 
to  be  written  on  the  same  paper  or  parchment,  on  which  the 
warrant  of  attorney  is  written ;  or  cause  a  memorandum  in  writing  to  be 
made  on  such  warrant  of  attorney,  containing  the  substance  and  effect  of 
such  defeazance,"(a)  In  the  construction  of  this  rule,  it  has  been  deter- 
mined, that  if  the  attorney  employed  to  prepare  a  warrant  of  attorney  to 
confess  judgment,  which  is  to  be  made  subject  to  a  defeazance,  neglect  to 
insert  such  defeazance  on  the  warrant,  the  security  is  not  thereby  avoided 
against  the  innocent  party  ;  but  the  attorney  is  guilty  of  a  breach  of  duty 

(b)  3  Bur.  1364.  Say.  Rep.  80.  2  Eunom.  144,  5.  Cas.  Pr.  C.  P.  59,  130.  Barnes,  281.  Pr. 
Reg.  2C0,  S.  C. ;  but  see  2  Salk.  597.  2  Str.  822.  Id.  1191.  1  Wila.  23,  S.  C.  Say.  Rep.  120. 
9  Price,  460,  contra. 

(cc)  Barnes,  284.  {d)  3  Bur.  1364.    2  Blac.  Rep.  902. 

(e)  Moss  V.  Thwaite,  H.  17  Geo.  III.  K.  B. 

(/)  £runsdo7i  and  others,  assignees,  ^x.,  v.  Austin,  T.  34  Geo.  III.  K.  B. ;  and  see  7  Durnf. 
&  East,  54.    1  Moore  &  P.  254.    4  Bing.  462,  S.  C. 

[g)  3  Bing.  601.  {h)  Append.  Chap.  XXI.  §  4. 

[i)  R.  M.  42  Geo.  III.  2  East,  136.  K.  B.  R.  M.  43  Geo.  III.  3  Bos.  &  Pul.  310.  C.  P.  R.  M. 
43  Geo.  III.  in  Scac.  Man.  Ex.  Append.  225.    8  Price,  505. 

(a)  Append.  Chap.  XXI.  §  5. 


OF  WARRANTS  OF  ATTORNEY.  546 

imposed  on  him  by  the  court,  and  answerable  fur  it  on  motion  :{f>)  And 
the  court  of  Kinj^'s  Bench  will  not  set  aside  a  warrant  of  attorney,  on  tlie 
ground  that  the  defeazance  only  states  the  amount  of  the  sum  secured  by 
the  judgment,  without  noticing  collateral  securities. (f)  So,  in  the  Common 
Pleas,  the  rule  does  not  require  the  consideration  of  a  judgment  to  bo 
indorsed  on  a  warrant  of  attorney  :((?<?)  And  if  a  warrant  of  attorney  be 
given  to  confess  judgment  absolutely  for  a  certain  sum,  although  it  be 
understood  between  the  parties  that  it  is  given  only  to  indemnify  the 
plaintiff  against  his  suretyship  for  a  smaller  sum,  that  is  not  sucli  a 
defeazance  as  is  necessary  to  be  indorsed  on  the  warrant  of  attorney  ; 
and  the  plaintiff  need  not  defer  execution  till  the  contingency  happen. (c) 
It  is  no  ground  for  impeaching  an  annuity,  that  the  memorial  does  not 
state  the  defeazance  of  the  warrant  of  attorney,  in  the  recital  of  that 
instrument;  it  being  explicitly  set  out  in  the  recital  of  the  deed.(/)  But 
if  the  defeazance  on  a  warrant  of  attorney  state  that  it  is  given  to  secure 
the  payment  of  a  sum  on  demand,  and,  in  case  default  shall  be  made, 
then  judgment  to  be  entered  up,  and  execution  issue,  an  actual  demand 
must  be  made,  and  a  proposal  to  settle  amicably  docs  not  amount  to  such 
a  demand. (//)  Where  a  warrant  of  attorney  was  given  with  a  defeazance, 
stating  it  to  be  given  as  a  security  for  a  certain  sum,  and  lawful  interest 
thereon  ;  the  court  held,  that  it  was  to  be  construed  as  a  continuing 
security,  and  not  merely  as  a  security  for  money  then  due.(/i) 

A  warrant  of  attorney  to  confess  judgment  need  not  be  by  deed  ;  nor 
docs  it  refjuire  an  attesting  witness. (i)  This  instrument  was  formerly 
liable  to  the  stamp  duty  of  ten  shillings  only,  though  it  contained  an 
authority  to  release  errors  \[h)  But  it  was  afterwards  made  liable  to  the 
stamp  duty  o^  fifteen  shillings  :  And  by  the  last  general  stamp  act,(?)  "a 
warrant  of  attorney,  with  or  without  a  release  of  errors,  which  is  given  as 
a  security  for  the  payment  of  any  sum  or  sums  of  money,  or  for 
the  ^transfer  of  any  share  or  shares  in  any  of  the  government  or  [  *547  ] 
parliamentary  stocks  or  funds,  or  in  the  stock  and  funds  of  the 
governor  and  company  of  the  Bank  of  England,  or  of  the  East  India 
company,  or  South  Sea  company,  is  subject  to  the  same  duty  as  a  bond 
for  the  like  purpose  ;  save  and  except  where  such  payment  or  transfer  18 
already  secured  by  a  bond,  mortgage,  or  other  security,  which  has  pi.id 
the  ad  valorem  duty  on  bonds  or  mortgages  :  and  also  except  where  the 
warrant  of  attorney  is  given  for  securing  any  sum  or  sums  of  money,  for 
which  the  person  giving  the  same  is  in  custody  under  an  arrest :  and  in 
those  cases,  it  is  subject  to  a  duty  of  one  pound."  A  defeazance,  however, 
upon  a  warrant  of  attorney,  does  not  re({uire  a  separate  stamp  from  that 
upon  the  warrant  of  attorney  :(a)  And  where  an  instrument  has  an  insuf- 
ficient stamp,  it  may  at  any  time  be  made  available,  by  affixing  a  proper 

(6)  14  East,  576.   7  Taunt.  307.  1  .Nfoorc.  54,  S.  C. 

(r)  2  Barn.  &  Aid.  568.  1  Chit.  Reji.  .311,  S.  C.  ;  but  see  3  Taunt.  235,  »rm6.  contra ;  which 
latter  case,  however,  seems  to  be  now  overruled. 

{dd)  3  Taunt.  465. 

\c)  Id.  ibid. ;  and  see  7  Taunt.  307.    1  Moore,  54,  S.  C. 

(/)  6  Taunt.  189.    1  Nfarsh.  533,  S.  C. 

{g)  5  Moore,  307.    2  Hrod.  k  Bing.  464,  S.  C. 

(h)  5  Barn,  k  Cres.  165.    7  Dowl.  &  Ryl.  824,  S.  C.  ;  and  sec  4  Bing.  154. 

\i)  5  Taunt.  264;  and  see  4  Kast,  431.    1  Chit.  Rep.  707.  {k)  4  East,  431. 

(/)  55  Geo.  III.  c.  184.  Inched.  Part  T.  Part  II.  ?  III. ;  and  see  the  statutes  44  Geo.  III.  c.  98. 
Sched  A.  48  Geo.  TIL  c.  149.  Schfd.  Part  II.  I  III. 

(a)  1  New  Rep.  C.  P.  279. 


547  OF  WARRANTS  OF  ATTORNEY. 

Stamp,  and  pajin;^  the  penalty  :  Therefore,  where  a  rule  nisi'wa.s  obtained 
to  set  aside  a  judgment  on  a  warrant  of  attorney,  on  the  ground  of  an 
insuilieient  stamp,  the  court  of  Common  Picas  discharged  the  rule,  the 
instrument  having  been  properly  stamped  since  the  motion. (5) 

Every  warrant  of  attorney  should  be  given  voluntarily,  and  for  a  good 
consideration  :  Therefore,  if  a  warrant  of  attorney  be  obtained  by  fraud, (c) 
or  misrepresentation, (cZ)  or  for  a  corrupt  and  usurious  consideration, (ge)  or 
for  securing  an  annuity  which  is  void  by  the  annuity  act,(j^)  or  to  induce 
the  plaintiff  to  live  in  prostitution  with  the  defendant,(^)  the  courts  will 
order  it  to  be  delivered  up,  and  set  aside  the  judgment  and  proceedings,  if 
any,  wliich  have  been  had  under  it.  And  the  court  of  King's  Bench  will 
set  aside  a  judgment  founded  on  an  usurious  security,  without  compelling 
the  defendant  to  repay  the  principal  and  interest.(7«)  But,  in  the  Common 
Pleas,  where  securities  had  been  acted  on,  and  the  money  partly  paid  by 
the  borrower,  the  court  would  not  set  aside  a  judgment  and  execution  on 
the  ground  of  usury,  but  upon  the  terms  of  the  defendant's  repaying  the 
principal  and  legal  interest. (z)  And  that  court  would  not  decide  the 
question,  whether  a  joint  stock  company  was  a  nuisance,  within  the  statute 
6  Geo.  I.  c.  18,  upon  motion  to  set  aside  a  judgment  confessed  to  them  on 
a  warrant  of  attorney.(Z:)  So,  where  a  joint  warrant  of  attorney  had  been 
altered  after  its  execution,  in  the  christian  name  of  one  of  the  parties, 
who  had  re-executed  the  same,  without  the  knowdedge  of  the  other,  the 
court  refused,  on  the  application  of  the  former,  to  set  aside  the  judgment 
which  had  been  signed  thereon. (?)  And  a  subsequent  assignment  of  goods, 
for  the  sum  secured  by  a  Avarrant  of  attorney,  is  not  a  waiver  of 
[  *548  ]  the  ^warrant  of  attorney. (a)  If  a  warrant  of  attorney  be  given 
by  an  infant,(55)  or  by  one  of  several  executors  to  confess  a  judg- 
ment against  all,(t'c')  the  courts  will  order  it  to  be  delivered  up,  &c. :  And 
a  joint  warrant  of  attorney,  to  confess  a  judgment  by  an  infant  and 
another,  may  be  vacated  against  the  infant  only. (dd)  But  a  warrant  of 
attorney  under  seal,  executed  by  one  person  for  himself  and  his  partner, 
in  the  absence  of  the  latter,  but  with  his  consent,  is  a  sufficient  authority 
for  signing  judgment  against  both.(e)  And  where  a  young  man  gave  bills 
for  the  amount  of  a  gaming  debt,  and  when  they  were  due,  renewed  them 
with  the  holder,  and  for  the  last  bills,  wdien  due,  confessed  a  judgment  by 
warrant  of  attorney,  the  court  of  Common  Pleas  would  not  set  aside  the 
judgment,  unless  he  could  affect  the  holder  of  the  bills  with  notice,  but 
permitted  him  to  try  that  fact  in  an  issue. (/)  A  warrant  of  attorney 
given  to  confess  a  judgment  at  the  suit  of  a  feme  covert,  is  void  :{gg) 
And  the  court,  on  motion,  set  aside  a  judgment  on  a  warrant  of  attorney, 
given  by  a  feme  covert,  although  she    had  been  divorced  a  mensd  et 

(b)  1  Taunt.  174.    2   Marsh.  480,  S.  C. 

(c)  Doug.  196.   4  Tauat.  478  ;  and  see  4  Barn.  &  Aid.  691.   10  Moore,  97.  2  Bing.  441,  S.  C. 

(d)  2  Ken.  294.  {ee)  Cowp.  727.  1  Bos.  &  Pul.  270.  4  Barn.  &  Aid.  92. 
(/)  Ante,  521,  2.  (ff)  James  v.  Uoskins,  T.  25  Geo.  III.  K.  B. 
(A)  4  Barn.  &  Aid.  92.  '(i)  1  Tautit.  413. 

(k)  4  Taunt.  587.  (/)  8  Taunt.  439.    2  Moore,  495,  S.  C. 

(a)  2  Chit.  Rep.  423. 

(bh)   1  H.  Blac.  75.     Chambers  v.  Burnett,  T.  32  Geo.  III.  G.  P.    Imp.  C.  P.  7  Ed.  597.    10 
Moore,  97.    2  Bing.  475,  S.  C. 
{cc)  1  Str.  20  ;  and  see  1  Rol.  Abr.  929,  pi.  5.    2  Yes.  &  B.  54.    1  Chit.  Rep.  708,  in  noiis. 
(dd)  2  Blac.  Rep.  1133.     1  Chit.  Rep.  708,  in  notis. 
(ee)  1  Chit.  Rep.  707  ;  but  see  10  Moore,  389.    3  Bing.  101,  S.  C. 
(/)  4  Taunt.  683.  (ffff)  2  Wils.  3. 


OF  WARRANTS  OF  ATTORNEY.  548 

t7ioro.{hh)  But  where  a  feme  covert,  -who  lived  by  licrself,  and  acted  as  a 
feme  sole,  gave  a  warrant  of  attorney  to  confess  a  judgment,  and  after- 
wards moved  to  set  aside  the  judgment,  because  she  Avas  covert,  the  court 
of  King's  Bench  would  not  relieve  her,  but  put  her  to  her  writ  of  error,(/j) 
And  where  it  appeared,  by  the  pl:iintifl"s  uilidavit,  that  .'^he  was  resident 
in  an  enemy's  country,  the  court  of  Common  Pleas  refused  to  allow  judg- 
ment to  be  entered  up  on  an  old  warrant  of  attorney. (/r A-) 

When  the  defendant  is  in  custody  by  arrest,  it  is  a  rule  of  both  courts,(/?) 
that  "  no  bailiff  or  sheriff's  officer  shall  presume  to  exact  or  take  from  liira, 
any  warrant  to  acknowledge  a  judgment,  but  in  the  presence  of  an  attorney 
for  the  defendant,  who  sluill  subscribe  his  name  thereto:  which  warrant 
shall  be  produced,  when  the  judgment  is  acknowledged  ;  and  if  any  bailiff 
or  sheriff's  officer  shall  offeml  therein,  he  shall  be  severely  punished  : 
And  no  attorney  shall  acknowledge  or  enter,  or  cause  to  be  acknowledged 
or  entered,  any  judgment,  by  colour  of  any  warrant,  gotten  from  any 
defendant  being  under  arrest,  otherwise  than  as  aforesaid."  Upon  this 
rule,  the  defendant,  in  the  Common  Pleas,  was  hohlen  to  be  in  custody, 
though  the  officer  left  him  for  some  time,  whilst  the  plaintiff  got  from  him 
the  warrant  of  attorney :(?»)  And,  in  that  court,  a  defendant  lodging  within 
the  rules  of  the  Fleet,  at  the  house  of  the  officer  who  arrested 
him,  and  who  was  his  security  to  the  warden,  was  *deemcd  to  be  [  *549  ] 
a  prisoner  within  the  meaning  of  the  rule.(rt)  So,  where  a 
defendant,  on  being  arrested  at  the  suit  of  a  third  person,  is  taken  to  the 
house  of  a  sheriff's  officer,  to  whom  he  voluntarily  offers  to  give  a  warrant 
of  attorney,  it  is  necessary  for  an  attorney  to  be  present  on  his  part,  at 
the  time  of  its  execution. (6)  But  it  having  been  deemed  sufficient  for  the 
plaintiff's  attorney  to  be  present,  and  subscribe  the  warrant,  as  attorney 
for  the  defendant,((?)  another  rule  was  made,  in  the  King's  Bench. ((^)  that 
"  no  warrnnt  of  attorney  executed  by  any  person  in  custody  of  a  sheriff 
or  other  officer,  for  the  confessing  of  judgment,  shall  be  valid  or  of  any 
force,  unless  there  be  present  some  attorney  on  the  behalf  of  such  person 
in  custody,  to  be  expressly  named  by  him,  and  attending  at  his  request,  to 
inform  him  of  the  nature  and  effect  of  such  warrant  of  attorney,  before 
the  same  is  executed  ;  which  attorney  shall  subscribe  his  name  as  a  witness 
to  the  due  execution  thereof."  And,  to  prevent  frauds  and  impositions  in 
the  execution  of  warrants  of  attorney  for  confessing  judgments,  a  rule  was 
made  in  the  Common  Pleas,  that  "  every  warrant  of  attorney  for  confessing 
judgment,  shall  be  read  over  by  the  person  who  is  to  execute  the  same,  or 
by  some  other  person  to  him,  before  the  execution  thereof:  and  that  if 
judgment  shall  be  entered  up  on  any  such  Avarrant  of  attorney,  which  shall 
not  be  so  read  over  as  aforesaid,  such  judgment,  upon  motion,  may  be  set 
aside  as  irregular  :"(c)    But  this  latter  rule  appears  to  be  disused. (/) 

The  object  of  these  rules  was  not  merely  to  procure  the  attendance  of  an 
attorney,  to  explain  the  nature  of  the  instrument  to  be  executed,  but  also  to 
advise  the  defendant  confidentially,  and  as  a  friend;  and  rules  thus  framed 
for  the  protection  of  a  prisoner,  cannot  be  waived  by  him,  when  in  a  situa- 

(hh)  6  Mimle  &  Scl.  73.  (ii)  1  Salk.  400  ;  and  see  3  Bos.  &  Pul.  128,  220- 

{kk}  2  New  Rep.  C.  1'.  97. 

(H)  R.  E.  15  Cur.  II.  rey.  2,  K.  B.  R.  H.  14  &  15  Car.  II.  rr/jr.  4,  C.  P. 

(m)  Cas.  Pr.  C.  P.  128.  (a)  2  Blac.  Rep.  12y7  ;  and  see  id.  1097. 

(h)  2  Moore,  17G.  8  Taunt.  233,  S.  C.  (c)  2  Str.  1245. 

(rf)  R.  K.  4  Geo.  II.  K.  B.   2  Sir.  902.  Cowp.  281. 

[e)  R.  T.  14  &  15  Geo.  II.  C.  P.  (/)  2  H.  Blac.  383. 


549  OF  WARRANTS  OF  ATTORNEY. 

tion  Avlicrc  lie  is  incapable  of  exercising  his  judgment :  Therefore,  when  a 
defendant  in  custody  executes  a  warrant  of  attorney  to  confess  a  judgment, 
there  must  be  an  attorney  present  on  his  part ;  the  presence  of  the  plaintilf's 
attorney  being  insufficient,  though  the  defendant  consent  to  his  acting  as  his 
attorney  also.((7)  And,  in  the  Common  Pleas,  if  a  prisoner  on  mesne  pro- 
cess give  a  warrant  of  attorney,  the  rule  that  his  attorney  must  be  present 
is  not  dispensed  with,  though  two  other  persons  not  in  custody  join  in  the 
warrant  :(/<)  The  presence  of  an  attorney's  clerk  is  not  sufficient. (z)  And 
the  above  rules  have  been  construed  to  extend  to  warrants  of  attorney 
executed  abroad. (^) 

But  still  it  is  sufficient,  if  there  be  an  attorney  present  on  behalf  of  the 
defendant,  though  he  be  not  an  attorney  of  the  same  court  in  which  the 
judgment  is  to  be  entered  :(l)  And,  in  the  Common  Pleas,  if  the  defend- 
ant himself  be  an  attorney,  or  practise  as  such,  it  is  deemed  suffi- 
[  *550  ]  cient,*though  no  other  attorney  be  present  on  his  behalf.(a)  So, 
a  Avarrant  of  attorney  given  by  a  defendant  in  custody,  was  in 
that  court  holden  to  be  good,  where  an  attorney  was  present  on  his  behalf, 
though  he  was  a  total  stranger  to  the  defendant,  and  introduced  by  the 
plaintiff's  attorney.(5)  These  rules  only  extend  to  warrants  of  attorney 
given  by  a  defendant  in  custody  upon  mesne  process  in  a  civil  action,  to 
a  plaintiff  at  whose  suit  he  is  in  custody :  Therefore,  where  a  warrant  of 
attorney  is  given  by  a  defendant  in  custody  upon  process  of  e.vecution,{c) 
or  upon  criminal  process,(t?)or  to  a  third  person,  at  whose  suit  the  defend- 
ant is  not  in  custody,(g)  an  attorney's  presence  is  unnecessary.  And  where  a 
warrant  of  attorney  was  executed  in  the  presence  of  an  attorney's  clerk, 
and  it  appeared  from  the  defendant's  affidavit,  that  he  was  the  more 
induced  to  execute  it,  because  he  had  been  informed,  that  if  he  did  exe- 
cute it  under  an  arrest,  and  without  his  attorney  being  present,  it  would 
be  void,  the  court  refused  to  set  aside  the  proceedings. (/) 

On  the  other  hand,  though  the  case  is  not  strictly  within  the  rule,  yet 
the  courts  will  sometimes  interpose  and  give  relief,  under  particular  cir- 
cumstances ;  for  it  is  their  province  to  guard  against  the  arts  of  designing 
men,  practised  upon  persons  under  the  pressure  of  distress  and  imprison- 
ment. Thus,  if  it  could  be  shown,  that  a  party,  even  in  execution,  had 
been  prevailed  on  to  acknowledge  a  judgment,  for  more  money  than  was 
really  due,  the  courts  would  give  relief  under  the  circumstances  ;{gg) 
because  cases  of  fraud  and  impositions  are  exceptions  to  all  rules  whatso- 
ever. And  in  a  case  where,  interlocutory  judgment  being  signed  against 
a  prisoner  in  custody  of  the  marshal,  the  plaintiff's  attorney  took  a  cogno- 
vit from  'him  for  2001.  with  a  defeazance  on  paying  49Z.  (the  real  debt,) 
and  costs,  but  no  attorney  was  present  on  the  part  of  the  defendant ; 
though  this  case  was  not  strictly  within  the  rule,  which  only  mentions 
prisoners  in  custody  of  sheriffs'  officers,  yet  the  court  of  King's  Bench 

(g)  7  Durnf.  &  East,  8.  1  East,  2i3,  per  Lawrence,  J. 

(A)  2  Taunt.  49.  (0  Barnes,  42. 

[k)  2  Str.  1247.  (l)  1  Str.  530.  Barnes,  44. 

(a)  Barnes,  37.  Cas.  Pr.  C.  P.  94,  S.  C. 

(b)  4  Taunt.  797. 

(c)  2  Str.  1245.  Cowp.  281.  1  Durnf.  &  East,  TIS.   7  Durnf.  &  East,  19,  S.  P. 

(d)  4  Durnf.  &  East,  433. 

(e)  5  Mod.  144.  2  Ld.  Rajm.  797.  3  Bur.  1792.  Cowp.  142.  1  East,  241.  2  Moore,  175. 
(/)  Cowp.  142.  [ffg)  Id.  281. 


OF  WARRANTS  OF  ATTORNEY.  550 

interfered  for  the  relief  of  the  prisoner.(/t)  So  where  a  defendant,  on 
being  arrested  by  a  sherifTs  ollicer,  gave  a  cognovit  to  the  plaintiff,  who 
■was  attorney  in  tiie  cause,  without  an  attorney  being  present  on  his  part, 
such  cognovit  was  holden  to  be  void,  by  tlie  court  of  Common  Pleas, 
although  tlie  plaintiff  swore  lie  did  not  know  the  defendant  was  in  cus- 
tody.(/)  But,  in  the  King's  Bench,  a  cognovit  given  by  a  deft'n<lant  in 
custody  on  mesne  process  is  valid,  altliough  no  attorney  be  [tresent  on  the 
part  of  the  defendant,  unless  it  be  shown  that  some  undue  advantage  was 
taken  of  h.\va.{kk) 

By  the  course  of  the  courts,  a  warrant  of  attorney  given  to  confess  a 
judgment  is  not  revocable  ;  and  if  the  party  giving,  endeavour  to 
rev(.)ke  *it,  the  courts  will  notwithstanding  give  the  other  j)arty  [  "551  ] 
leave  to  enter  up  judgment. (a)  But  the  death  of  either  party  is, 
generally  speaking,  a  countermand  of  the  warrant  of  attorney  :(i)  And 
therefore,  upon  a  motion  to  enter  up  judgment  on  an  old  warrant  of  attor- 
ney, if  it  appear  to  the  courts  that  either  party  is  dead,  they  will  not  grant 
the  motion. (c)  Yet,  if  the  warrant  of  attorney  be  to  enter  up  judgment 
at  the  suit  of  A.  his  executors  or  administrators,  it  seems  that  on  the 
death  of  A.,  the  courts  will  give  his  executors  or  administrators  leave  to 
enter  up  judgment  thereon. (c?)  And  if  either  party  die  in  vacation,  within 
a  year  after  giving  the  warrant  of  attorney,  judgment  may  be  entered  up 
of  course,  at  any  time  after,  in  that  vacation  ;{e)  and  it  will  be  a  good 
judgment  at  common  law,  as  of  the  preceding  term,  though  it  be  not  so 
upon  the  statute  of  frauds,  in  respect  of  purchasers,  but  from  the  sign- 
ing:(/)  And  even  where  the  party  dies  after  a  year,  if  the  courts  can 
be  prevailed  upon  to  grant  a  rule  for  entering  up  judgment,  they  will  not 
afterwards  set  it  aside.(/7)  When  a  Avarrant  of  attorney  is  given  to  enter 
up  judgment  at  the  suit  of  two  persons,  judgment  may  be  entered  up 
thereon,  after  the  death  of  one  of  them,  in  the  name  of  the  survivor.(//7<) 
And,  in  the  Common  Pleas,  where  a  warrant  of  attorney  was  given  by 
two  persons,  to  enter  up  judgment  on  a  joint  bond  against  me,  not  us,  the 
court,  after  the  death  of  one  of  them,  gave  leave  to  enter  up  judgment 
against  the  other.(M)  But  a  joint  Avarrant  of  attorney,  given  to  enter  up 
judgment  against  us,  upon  a  joint  and  several  bond,  will  not,  in  either 
court,  authorize  the  entering  up  judgment  against  the  survivor  only.(/t:) 
And  a  judge  at  chambers  will  never  make  an  order  for  entering  up  judg- 
ment on  a  warrant  of  attorney,  against  a  surviving  defendant. 
When  a  warrant  of  attorney  is  given  to  a  feme  sole,  who  marries  before 

(/i)  3  Durnf.  &  East,  616;  and  see  1  East,  242,  (a).  8  Dowl.  &  Ryl.  f.G. 
(i)  7  Taunt.  701.  1  Moore,  428,  S.  C. ;  and  see  2  Taunt.  360.  Arnold  v.  Lowe,  T.  57  Geo. 
III.  C.  P.  7  Taunt.  703,  (a). 
(kk)  1  Chit.  Rep.  2G7. 

(a)  2  Ld.  Rayra.  IGG,  850.  1  Salk.  87.  7  Mod.  93,  S.  C.  2  Esp.  Rep.  5G5. 
(h)  Co.  Lit.  52,  b.   1  Vent.  310. 
(f)  2  Str.  718,  1081.  8  Durnf.  &  East,  257.  Vin.  Abr.  tit.  Judgment,  W.  7.  Barnes,  270. 

(d)  Barnes,  44,  5. 

(e)  T.  Raym.  18.  2  Ld.  Raym.  7G6,  850.  1  Salk.  87.  7  Mod.  2,  93,  S.  C.  2  Str.  882.  3  P. 
Wrus.  399.  6  Durnf.  k  East,  3G8.  7  Durnf.  &  East,  20.  Cas.  Pr.  C.  P.  11.  Willes,  427,  8. 
Barnes,  2G7,  8,  270 ;  but  see  Cas.  Pr.  C.  P.  6,  contra. 

(/)  1  Salk.  401.  7  Mod.  39,  S.  C.  Jd.  93.  6  Durnf.  &  East,  368.  7  Durnf.  k  East,  20. 
((/)  2  Str.  882,  1081.   Vin.  Abr.  tit.  Judgment,  W.  7.  Barnes,  270. 

(hh)  Barnes,  40.  Jd.  48.  1  Wiis.  312.  Say.  Rep.  6,  S.  C.  2  Blac.  Rep.  1301.  2  Manle  k  Seh 
76.  7  Taunt.  453.   I  Moore,  145,  S.  C.    1  Younge  k  J.  206  ;  but  sec  Barnes,  45,  contra, 
(ii)  Barnes,  53.   1  Chit.  Hep.  315,  ««  iwlis ;  but  sec  7  Taunt.  453.   1   Moore,  145,  S.  C. 
\k)  15  East,  592.  7  Taunt.  453.  1  Moore,  145,  S.  C.j  and  see  1  Chit.  Kep.  322,  (<»). 


551  OF  WARRANTS  OF  ATTORNEY. 

judgment,  the  autliority  is  not  deemed  to  be  countermanded  or  revoked ; 
because  it  is  for  the  husband's  advantage  :{l)  And  therefore,  notwithstanding 
the  marriage,  judgment  maybe  entered  up  in  the  names  of  the  husband  and 
•wife.  But,  in  order  to  warrant  this  entry,  there  should  be  a  previous  ap- 
plication to  the  court,  founded  on  an  affidavit  of  the  marriage,  and  of  the 
due  execution  of  the  warrant  of  attorney,  and  non-payment  of 
[  *552  ]  *the  debt.(aa)  And,  in  an  early  case,(W)  it  was  ruled  upon  mo- 
tion, that  if  a  woman  give  a  warrant  of  attorney,  and  then  marry, 
the  plaintiff  may  file  a  bill,  and  enter  judgment,  against  both  husband  and 
wife,  by  the  practice  of  the  court.  But,  in  a  subsequent  case,((?c)  it  is  said, 
that  if  a  feme  sole  give  a  w'arrant  to  confess  a  judgment,  and  marry  before 
it  is  entered,  the  warrant  is  countermanded,  and  judgment  shall  not  be 
entered  against  husband  and  wife,  for  that  w^ould  charge  the  husband.(c?) 
In  a  still  later  case,  however,  judgment  was  allowed  to  be  entered  up 
against  husband  and  wife,  on  a  warrant  of  attorney  given  by  the  feme, 
diwi  sola.{e) 

In  entering  up  judgment  on  a  warrant  of  attorney,  the  authority  given 
by  it  must  be  strictly  pursued  :  Therefore,  if  a  plaintiff  enter  up  judgment 
in  debt  on  a  miitiiatus,  on  a  warrant  of  attorney  to  enter  up  judgment  in 
debt  on  bond,  the  court  will  set  it  aside  as  irregular.(/)  So,  judgment 
cannot  be  entered  up  against  two  defendants,  on  a  warrant  of  attorney  to 
confess  a  judgment  against  th7'ee  persons,  one  of  whom  afterwards  refused, 
to  execute;  and  the  judgment  against  the  two  was  set  aside  on  motion, 
but  without  costs,  and  on  the  terms  of  no  action  being  brought. ((/)  And 
if  a  warrant  of  attorney  be  given  to  appear  and  confess  judgment  of  a 
particular  term,  the  judgment  should  be  entered  accordingly  of  that  term, 
and  cannot  be  entered  of  any  other. (A)  But  if  the  warrant  of  attorney 
be  given,  to  appear  and  confess  judgment  generally,  or,  (as  is  most  usual,) 
of  a  particular  or  any  subsequent  term,  judgment  may  be  entered  of  any 
term  after  giving  the  warrant. (/)  Where  a  warrant  of  attorney  was  given 
in  vacation,  and  judgment  was  entered  up  thereon  as  of  the  preceding 
term,  the  court  of  King's  Bench  ordered  the  judgment  to  be  set  aside,  for 
the  danger  that  might  otherwise  ensue  to  purchasers  :{k)  And  where  a 
warrant  of  attorney  was  given  to  confess  judgment,  at  the  suit  of  an  exe- 
cutor, as  of  the  preceding  term,  when  the  testator  was  living,  and  the 
judgment  was  entered  up  accordingly,  the  court  held  it  to  be  irregular  ;(Z?) 
for  the  attorney  could  have  no  authority  to  appear  in  that  term,  at  the 
suit  of  the  executor,  and  the  judgment  must  be  considered  of  that  term, 
though  to  other  purposes  the  day  of  signing  is  material. 

Within  a  year  and  a  day  next  after  the  date  of  the  warrant,  judgment 

(I)  12  Mod.  383.  7  Mod.  53.  1  Salk.  117,  S.  C.  Barnes,  45. 
(aa)  3  Bur.  1471.  6  Dowl.  &  Ryl.  46. 
(bb)  1  Show.  91.  Say.  Rep.  6.  3  Bur.  1470,  S.  C.  cited. 
[cc]  1  Salk.  399.  7  Mod.  53,  S.  C.  cited. 

(d)  Tamenqucere;  for  it  seems  as  reasonable  that  he  should  be  charged  in  this  case,  as 
for  a  bond  or  other  debt,  which  he  is  liable  for  during  the  coverture,  though  not  after.  1 
Salk.  117,  cites  1  Rol.  Abr.  351,  F.  1,  G.  2.  F.  N.  B.  120,  F;  and  see  4  Bast,  522. 

(e)  2  Chit.  Rep.  117. 

(/)  8  Durnf.  &  East,  153.  Per  Cur.  T.  45  Geo.  III.  K.  B. 
\g)   1  Chit.  Rep.  322.  {h)   1  Mod.  1.  7  Mod.  53. 

(i)  Id.  ibid.  Barnes,  52. 

\k)  1  Sid.  222.     But  note,  this  was  before  the  statute  of  frauds,  by  which  judgments 
affect  purchasers,  only  from  the  time  of  signing. 
(//)  2  Str.  1121. 


OF  WARRANTS  OF  ATTORNEY.  552 

may  Lo  cntcreil  of  course,  without  apj'lying  to  the  court,  or  a  judge.    Cut 
if  it  be  not  entered  within  that  time,  the  court  of  King's  Bench  must  he 
moved  in  ter7n  time,(?«)  or,  if  the  warrant  of  attorney  be  not  above  ten 
years  ohl,  an  application  may  be  made  to  a  judge  in  vacation, 
for  leave  to  enter  *up  the  judgment,  on  an  ttfridnvit  of  the  due  [  *o53  ] 
execution  of  the  warrant  of  attorney,  that  the  debt,  or  part  of 
it,  is  still  duo,  and  that  the  parties  are  living.{(f)     This  alfidavit  may  be 
properly  entitled  in  the  cause  in  which  judgment  is  entered  up  :(/>)     And 
it  seems  that  an  affidavit,  sworn  before  a  justice  of  the  peace  in  Scotland, 
is  admissible,  if  the  handwriting  of  the  justice  be  authenticated. (c)     If 
the  warrant  of  attorney  be  above  ten  years  old,  the  application  must  be 
made  to  the  court ;  and  where  it  is  above  tivcntif  years  old,  there  must  in 
general  be  a  rule  to  show  cause,((/t/)  founded  on  an  affiilavit,  stating  facts 
which  rebut  the  presumption   of  ])ayment.((')     But  where,  upon  such  a 
warrant  of  attorney,  the  party  had  admitted  the  debt  within  two  months 
preceding  the  motion,  the  court  granted  it  absolute  in  the  first  instance. (/) 
In  the  Common  Pleas,  if  a  warrant  of  attorney  to  enter  ju<lguient  be  above 
a  year  and  under  ten  years  old,  leave  to  enter  judgment  may  be  given  by 
a  side-bar  or  treasury  rule  ;(_</)  and  accordingly,  the  practice  in  that  court 
is,  for  the  plaintift"s  attorney  to  move  at  side-bar  on  the  Jim t  day  of  term, 
or  in  the  treasury  chamber  on  other  days,  for  leave  to  enter  up  judgment, 
•which  is   granted  of  course,  on  the  usual  affidavit ;    and   theieupon   the 
secondaries  will  draw  up  the  rule:  In  vacation,  a  judge  at  chambers  will 
make  an  order  for  entering  up   the  judgment.     But   if  the  warrant  of 
attorney  be  above  ten  years,  the  court  must  be  moved  for  leave  to  enter 
up  judgment. (^)     If  the  warrant  of  attorney  be  under  ttcoiti/  years  old, 
the  common  affidavit  of  the  due  execution  of  the  warrant,  that  the  debt  is 
unpaid,  and  parties  living,  is  sufficient   to  induce  the  court  to  grant  an 
absolute  rule  ;  but  if  the  warrant  be  above  twentij  years  old,  the  rule  must 
be  to  show  cause,  and  served  on  the  defendant :(/()  And  where  judgment 
had  not  been  entered  within  a  year  and  a  day,  on  a  warrant  of  attorney 
given  with  a  j^ost  obit  bond,  and  the  obligee  did   not  apply  for  leave  to 
enter  it  till  after  the  death  of  the  person  on  whose  death  it  was  payable, 
the  court  of  Common  Pleas  would  not  grant  leave,  without  a  rule  to  show 
cause. (z)    If  judgment,  however,  be  entered  up  on  a  warrant  of  attorney*, 
more  than  a  year  old,  without  leave  of  the  court,  the   objection,  though 
available  if  urged  at  the  instance  of  the  defendant  himself,  cannot  be  taken 
advantage  of  by  a  third  party,  a  stranger  to  the  proceeding,  as  a  ground 
of  irregularity. (A;) 

The  affidavit  of  the  due  execution  of  the  warrant  of  attorney,  should 
regularly  be  made  by   the  attesting  witness  ;  or,   if  he    cannot   be  met 

(m)  3  Salk.  322.    7  Mod.  94.    6  Mod.  212.    1  Wils.  3G,  arg. 

(a)  Append.  Chap.  XXI.  g  G  ;  and  for  tlie  form  of  tlie  rule,  see  id.  §  7. 

(b)  1  Barn,  k  Aid.  567,  8,  (a).     Ante,  493. 

(c)  1  Chit.  Rep.  721,  2.  But  an  aflidavit  sworn  before  a  justice  of  the  peace  at  Edinburgh^ 
was  deemed  in.-ufficient  for  entering  up  judgment  on  an  old  wnrnuit  of  attorney,  in  the  ca^e 
of  Knight  v.  llnmell,  M.  46  Geo.  III.  K.  B.  And,  in  the  case  of  Sinclair  v.  Afgigneen  of  lien- 
toiil  M.  23  Geo.  III.  K.  B.,  it  was  said,  that  the  aflidavit  should  have  been  made  before  a 
lord  of  session. 

(dd)  1  Chit.  Rep.  618,  in  nnfif.  Ante,  485,  6,  (;/),  487. 

(e)  2  Barn.  &  Cres.  555.  4  Dowl.  &  R\l.  5,  S.  C. 

(  f)  Blahdey  v.  Vincfnt,  T.  'i%  Geo.  HI.  K.  B.  {g)  Barnes.  47. 

(h)  Id.  ibid'.;  and  see  Cas.  Pr.  C.  P.  145,  G.  (ij   1  II.  B'.ac.  94. 

(/.)  1  Dowl.  &  Ryl.  558.  Ante,  551. 


553  OF  WARRANTS  OF  ATTORNEY. 

[  *554  ]  wit]i,(^)  *or  reside  out  of  the  jurisdiction  of  the  court, (a)  an 
affidavit  verifying  his  handwriting  will  be  deemed  sufficient.  But 
the  court  must  be  informed  by  affidavit,  of  the  endeavours  which  have  been 
made  to  find  him,  before  they  will  admit  secondary  evidence  ;{b)  and,  in 
the  King's  Bench,  the  acknowledgment  of  the  warrant  of  attorney  by  the 
defendant,  will  be  no  waiver  of  the  objection  :{c)  but,  in  the  Common  Pleas, 
if  A.  agree  to  acknowledge  an  old  warrant  of  attorney  given  by  him,  so  as 
to  enable  B.  to  enter  up  judgment  thereon,  judgment  may  be  entered  up, 
under  a  judge's  order,  without  an  affidavit  of  the  attesting  witness. (cZ)  If 
the  witness  Avill  not  join  in  the  necessary  affidavit,  the  court  will  compel 
him,  by  rule,  to  do  so.(ee)  And  where  the  plaintiS',  being  a  lunatic,  did  not 
swear  that  the  money  was  unpaid,  but  another  did,  who  had  received  the 
interest  upon  the  bond  for  three  years,  ever  since  the  plaintiff  was  lunatic, 
the  court  of  Common  Pleas  held  this  to  be  sufficient. (^)  In  the  King's 
Bench,  if  the  defendant  reside  in  town,  it  should  appear  by  the  affidavit, 
that  he  was  alive  at  a  ce7'tain  time,  within  two  or  three  days,  or,  if  in  the 
country,  within  a  iveek  or  ten  days,  before  the  application  is  made  ;  an  affi- 
davit that  he  was  alive  on  or  about  a  particular  day,  being  deemed  insuffi- 
cient :{g)  And  as  all  judgments,  in  actions  by  hilly  relate  to  the  first  day 
in  full  term,  (and  the  judgment  on  a  warrant  of  attorney  is  always  so 
entered,)  it  must  be  positively/  sworn  that  the  defendant  was  alive,  either 
on  the  first,  or  upon  some  subsequent  day  in  full  term  :{h)  Information 
and  belief,  even  though  the  party  keep  out  of  the  way  to  avoid  being  seen, 
is  not  sufficient  :(z)  And  judgment  cannot  be  entered  up  on  a  joint  war- 
rant of  attorney,  against  any  of  the  makers  of  it,  unless  they  are  all 
proved  to  be  alive  within  the  term.(Z:)  In  the  Common  Pleas,  it  must  in 
general  appear  by  the  affidavit,  that  the  defendant  was  alive  within  a 
fortniglit  before  the  making  of  the  application  :{ll)  And  by  a  late  rule,(w) 
the  affidavit  must  state  that  "he  was  alive,  at  a  day  within  the  term  in 
which  the  motion  is  made  :"  in  the  construction  of  which  rule,  it  has  been 
holden  not  to  be  sufficient  to  swear  that  he  was  alive  on  the  essoin  day.(w) 
But  where  the  defendant  resides  abroad,  a  longer  time  is  of  course 
allowed,  according  to  circumstances  :(o)  and,  in  a  late  case,  the  court  gave 
leave  to  enter  up  judgment,  on  an  old  warrant  of  attorney  in  Michaelmas 
term ;  the  affidavit  stating,  that  the  defendant  was  alive  at  New 
[  *555  ]  South  Wales,  in  the  *month  of  August  preceding,  as  appeared 
by  a  letter  received  from  him  of  that  date,  and  that  deponent 
verily  believed  him  to  be  still  alive. («a) 

By  a  late  rule  of  all  the  courts,(&5)  "  no  judgment  can  be  signed  upon  any 

{I)  1  Chit.  Rep.  743. 

(a)  1  Chit.  Rep.  744.  {b)  Id.  743,  {b).  4  Taunt.  132. 

(c)  1  Chit.  Rep.  743,  4.  (/)  2  Bos.  &  Pul.  85. 

{ee)  1  Str.  1.  Barnes,  58.  1  Price,  308.  1  Chit.  Rep.  743,  (6).  Caffin  cj-  another  v.  Idle,  M. 
3  Geo.  IV.  K.  B. 

(/)  Barnes,  42. 

lo)  Per  Cur.  H.  41  Geo.  III.  K.  B.    1  Chit.  Rep.  617,  {a). 

[h]  4  Maule  &  Sel.  174.    1  Chit.  Rep.  314,  617,  (a). 

{*■)  1  Chit.  Rep.  314.  {k)  Id.  ibid. 

(11)  Per  IleaUi,  J.  T.  33  Geo.  III.  C.  P.  Imp.  C.  P.  7  Ed.  451. 

{m)  R.  T.  59  Geo.  III.  C.  P.  1  Brod.  &  Ring.  385.  3  Moore,  606.  2  Chit.  Rep.  380,  81. 

\n)  4  Moore,  2. 

(o)  Barnes,  54,  256.  Cas.  Pr.  C.  P.  145.  Willes,  GQ,  S.  C.  9  Moore,  389.  2  Bing.  204,  S.  C. 

{aa)  2  Dowl.  &  Ryl.  12  ;  and  see  9  Moore,  389.  2  Bing.  204,  S.  C. 

{hh)  R.  M.  42  Geo.  III.  2  East,  136,  K.  B.  R.  M.  43  Geo.  III.  3  Bos.  &  Pul.  310,  C.  P.R.  M. 
43  Geo.  III.  in  Scac.  Man.  Ex.  Append.  224,  5.  8  Price,  505. 


OF  WARRANTS  OF  ATTORNEY.  555 

•warrant,  authorizing  an  attorney  to  confess  judgment,  without  such  war- 
rant being  delivered  to,  and  filed  by  the  clerk  of  the  dockets,  or  master  in 
the  Exchequer  ;  who  is  ordered  to  file  the  warrants,  in  the  order  in  which 
they  are  received."     And,  by  the  statute  3  Geo.  IV.  c.  3*.),  §  1,  (the  pro- 
vision*} of  which  are  extended  to  assignees  of  insolvent  debtors,  by  the 
statutes  5  Geo.  IV.  c.  Gl,  §  lU,  k  7  Geo.  IV.  c.  57,  §  33,)  "  if  the  holder 
shall  think  fit,  every  warrant  of  attorney  to  confess  judgment  in  any  per- 
sonal action,  or  a  true  copy  thereof,  and  of  the  attestation  thereof,  and 
the  defeazance  and  indorsements  thereon,  in  case  such  warrant  of  attor- 
ney shall  be  given  to  confess  judgment  in  his  majesty's  court  of  King's 
Lench  at  IWatminster,  or  a  true  copy  thereof,  in   case  such  warrant  of 
attorney  shall  be  given  to  confess  judgment  in   any  other  court,  shall, 
Avithin  (nrnti/-one  days  after  tlie  execution  of  such  warrant  of  attorney, 
be  filed,  together  with  an  affidavit  of  the  time  of  the  execution  thereof, 
with  the  clerk  of  the  dockets  and  judgments  in  the  said  court  of  King's 
Bench  :     And  if,  at  any  time  after  the  expiration  of  twenty-one  days  next 
after  the  execution  of  swch  warrant  of  attorney,  a  commission  of  bankrupt 
shall  be  issued  against  the  person  who  shall  have  given  such  warrant  of 
attorney,  under  which  he  shall  be  duly  found  and  declared  a  bankrupt, 
then  and  in  such  case,  unless  such  warrant  of  attorney,  or  a  copy  tlicreof, 
shall  have  been  filed  as  aforesaid,  within  the  said  space  of  twenty-one 
days  from  the  execution  thereof,  or  unless  judgment  shall  have  been 
signed,  or  execution  issued,  on  such  warrant  of  attorney,  within  the  same 
period,  such  warrant  of  attorney,  and  the  judgment  and  execution  thereon, 
shall   be  deemed  fraudulent  and  void  against  the  assignees  under  such 
commission;  and  such  assignees  shall  be  entitled  to  recover  back  and 
receive,  for  the  use  of  the  creditors  of  such  bankrupts  at  large,  all  and 
every  the  moneys  levied,  or  efi'ects  seized,  under  and  by  virtue  of  such 
judgment  and  execution. (c)     And  if  such  warrant  of  attorney  shall  be 
given  subject  to  any  defeazance  or  condition,  such  defeazance  or  condition 
shall  be  written  on  the  same  paper  or  parchment  on  which  such  warrant 
of  attorney  shall  be  written,  before  the  time  when  the  same,  or  a  copy 
thereof  respectively,  shall  be  filed ;  otherwise  such  warrant  of  attorney 
shall  be  null  and  void,  to  all  intents  and  purpose3.((^)     By  the  above  sta- 
tute,(»')  the  officer  of  the  court  is  required  to  keep  a  book,  containing  an 
alphabetical  list  and  particulars  of  each  warrant  of  attorney,  and  cognovit 
actionem,  given  by  any  defendant:     And  the  judges  are  authorized  to 
order  a  memorandum  of  satisfaction  to  be  written  upon  such 
warrant  of  attorney,  cognovit  actionem,  or  copy  ^thereof  respec-  [  *5o(j  ] 
tively,  as  aforesaid,  if  it  shall  appear  that  the  debt  for  which  such  _ 
warrant  of  attorney,  or  cofjnovit  actionem,  is  given  as  a  security,  shall 
have  been  satisfied  or  discharged.((Tf)     But  the  fourth  section  of  the  sta- 
tute 3  Geo.  IV.  c.  31>,  which  re(iuires  the  defeazance  to  a  warrant  of 
attorney  to  be  written  on  the  paper  or  parchment  on  which  the  instrument 
itself  is  written,  applies  only  to  such  warrants  of  attorney,  &c.  as  fall 
within  the  former  sections  of  the  act,  viz.  warrants  of  attorney  which,  in 
the  event  of  not  being  filed  within  twenty-one  days  after  execution,  are 
void  against  the  assignees  of  a  bankrupt ;  and  consequently  a  warrant  of 
attorney  subject  to  a  defeazance,  not  written  on  the  same  paper  or  parch- 

(f)  ^  2.  Tlic  provisions  of  this  clause,  however,  arc  not  repealed  bj  stat.  6  Geo.  IV.  c.  IG, 
2  81.  which  is  confined  to  executions  bond  Jtdr  issued.   1  Moody  &  M.  8. 
[d]  I  4.  Ante,  545,  G.  (c)  g  5.  (a)  §  8. 


566  OF  COMPOUNDIN«  PENAL  ACTIONS. 

mcnt,  is  not  void  ao-ainst  the  assignee  of  an  insolvent  debtor.  6  Barn  k 
Ores.  440  per  Ld.  Tcnterden,  Ch.  J.  Bayley  and  Littledale,  Js. ;  Ilolroyd, 
J.  dissentiente. 

The  judgment  upon  a  warrant  of  attorney,  being  in  debt,  is  always 
final;  and  signed  in  like  manner  as  a  final  judgment  by  confession  or 
default  in  an  adverse  suit,  which  will  be  treated  of  in  the  next  chapter. 
To  prove  the  time  of  signing  the  judgment,  however,  the  day-book  kept 
at  the  judgment  office  is  not  evidence;  but  an  office  copy  of  the  judgment 
ought  to  bo  produced,  or  the  docket  of  the  judgment.(i) 


In  order  to  compound  a  penal  action,  an  application  must  be  made  to 
the  court  wherein  it  is  depending,  founded  upon  the  statute  18  Eliz.  c.  5, 
§  3,((?6')  by  which  it  is  enacted,  that  "no  common  informer  or  plaintiff  shall  or 
may  compound  or  agree  with  any  person  or  persons  that  shall  offend,  or  that 
shall  be  surjmised  to  offend,  against  any  penal  statute,  for  an  offence  com- 
mitted, or  pretended  to  be  committed,  but  after  answer  made  in  court,  to 
the  information  or  suit  in  that  behalf  exhibited  or  prosecuted ;  nor  after  an- 
swer, but  by  the  order  or  consent  of  the  court  in  which  the  same  informa- 
tion or  suit  shall  be  depending ;  upon  pain  of  standing  on  the  pillory,  being 
disabled  to  sue  on  a  penal  statute,  and  forfeiting  ten  pounds,  half  to  the  king 
and  half  to  the  party  grieved:"  And,  by  a  previous  statute, (cM)  "actions 
popular  prosecuted  by  collusion,  shall  be  no  bar  to  those  which  are  prose- 
cuted with  good  faith ;  and  the  defendant,  being  lawfully  condemned  or 
attainted  of  covin  or  collusion,  shall  suffer  imprisonment  for  two  years." 
But  these  statutes  extend  only  to  common  informers,  and  not  to  cases  where 
the  penalty  is  given  to  the  party  grieved. (e)  And,  in  the  Common  Pleas, 
a  notice  of  action  required  by  a  penal  statute,  was  held  to  be  no  com- 
mencement of  the  suit,  so  as  to  subject  the  plaintiff  or  his  agent  to  an 
attachment,  for  attempting  to  compound  an  offence,  previous  to  the  suing 
out  of  the  writ.(/) 

The  application  for  leave  to  compound  a  penal  action  must  be  made  to 
the  court  in  baric,  and  not  at  nisi  2^^' ins,  on  the  trial  of  the  cause  :{g)  and 
it  is  made  by  consent,(7i)  upon  an  affidavit,  setting  forth  the  nature  of  the 
action,  the  state  of  the  cause,  the  agreement  of  the  parties,  and  that  no 
more  than  a  certain  sum  is  given  or  taken, (?)  &c.,  Avhich  application  should 
regularly  be  made  in  an  early  stage  of  the  cause  ;  but  under  favourable 
circumstances,  it  may  be  made  after  verdict  :(A;)  And  in  one 
[  *557  ]  case,  where  the  *defendant  was  in  execution,  the  court  of  King's 
Bench,  on  an  affidavit  of  his  poverty,  gave  the  plaintiff  leave  to 
compound  with  him. (a)  But,  in  the  Common  Pleas,  where  part  of  the 
penalty  goes  to  the  king,  the  consent  of  the  crown  must  be  obtained,  before 
the  motion  can  be  granted  for  leave  to  compound  a  penal  action,  whether 

(b)  5  Esp.  Rep.  177  ;  and  see  2  New  Rep.  C.  P.  474.   1  Moore  &  P.  236. 
(cc)  Made  perpetual  by  27  Eliz.  c.  10.  (dd)  4  Hen.  VII.  c.  20. 

(e)  1  Salk.  30 ;  and  see  the  statute  18  Eliz.  c.  5,  g  6.  2  Hawk.  P.  C.  279. 
(/)  2  Blac.  Rep.  781.  {;/)  1  Chit.  Rep.  381. 

(A)  Barnes,  118.  Pr.  Reg.  226,  S.  0. 

(i)  R.— 2  Jac.  I.  ^  5,  C.  P.    And  for  the  form  of  the  affidavit,  see  Append.  Chap.  XXI.  §  9, 
and  for  the  form  of  the  rule  thereon,  id.  §  10. 

(k)  Per  Cur.  H.  22  Geo.  III.  K.  B.  5  Durnf.  &  East,  93.  1  Bos.  &  Pul.  18.   1  Chit.  Rep.  381. 
(a)  1  Str.  167. 


OF  COMPOUNDING  PENAL  ACTIONS.  557 

the  verdict  lias  passed  for  tlie  plaintiff  or  Tiot.{h)  Upon  the  application 
being  made,  it  is  in  the  discretion  of  the  courts  to  pive  or  withliohl  their 
leave  to  compound  ;((■)  and  it  was  refused  by  tlie  court  of  King's  Bcncii,  in 
a  case  where  an  action  was  brought  on  the  statute  25  Geo.  II.  c.  3<),  for 
keeping  a  disorderly  house. (tf)  So,  where  part  of  the  penalty  was  given 
to  the  poor,  the  court  would  not  give  the  parties  leave  to  compound  a  penal 
action,  on  the  statute  KJ  Geo.  II.  c.  ll>,  although  the  overseers,  at  a  vestry, 
had  agreed  to  coinjiound  it,  without  receiving  any  part  of  the  penalty. (rf) 
On  a  bona  fide  composition, (//')  though  not  on  a  collusive  im(\[Jf')  the  jtlain- 
tift"  may  be  allowed  a  reasonable  sum  for  his  costs.  And,  in  compounding 
a  penal  action  on  the  post-horse  act,  which  gives  costs  to  the  prosecutor, 
the  court  of  Common  Pleas  allowed  him  to  receive  the  deficient  duties,  not 
amounting  to  40^.  and  full  costs  of  suit,  thougli  exceeding  together  the  40x. 
paid  to  the  crown. (////)  But  where  no  costs  are  given  to  the  j)laintifl",  as  iu 
an  action  on  the  statute  of  usury,  the  crown  is  entitled  to  a  moiety  of  the 
sum  agreed  to  be  paid  to  the  plaintift'  for  his  costs  ;  for  whatever  the 
defendant  may  pay  under  the  name  of  costs,  is  considered  in  fact  as  an 
addition  to  the  penalty. (///<) 

When  leave  is  given  to  compound  a  qui  tarn  action,  it  is  a  general  rule, 
that  the  king's  half  of  the  composition  sh.all  be  paid  into  the  hands  of  the 
master  of  the  crown  office  in  the  King's  Bench, (»')  or  one  of  tlie  prothono- 
taries  in  the  Common  Pleas, (A")  for  the  use  of  his  majesty  ;  whieh  is  now 
usually  done  before  the  rule  is  drawn  up.  And  where  the  defendant  in  a 
qui  tarn  action  obtained  a  rule  to  stay  proceedings,  on  paying  a  sum  agreed 
upon  between  him  and  the  plaintiff,  the  court  of  King's  Bench  considered 
it  as  an  undertaking  by  him  to  pay  that  sum  ;  and  for  the  non-payment  of 
it,  granted  an  attachment :(/)  But  for  preventing  any  doubt  in  future,  an 
order  was  made,  that  "  every  rule  to  be  drawn  up  for  compounding  any 
qui  tarn  action  do  express,  that  the  defendant  doth  undertake  to  pay  the 
sum  for  which  the  court  has  given  him  leave  to  compound  such  action. "(w) 
So,  in  the  Common  Pleas,  where  a  defendant,  in  a  penal  action,  obtains  a 
rule  to  stay  proceedings  on  payment  of  part  of  the  penalties,  the  court  will 
grant  an  attachment  against  him  for  non-payment  :(?<)  And  in 
*that  court  it  is  a  rule,  on  compounding  information  on  penal  [  '''.>o8  ] 
statutes,  that  "if  the  defendant,  after  composition  made  with  the 
informer,  do  not  voluntarily  come  in  to  answer  unto  the  king  for  his  fine, 
to  be  taxed  and  assessed  by  the  justices  of  this  court  for  his  majesty's  use, 
then  a  capias  ad  mt infacienduni  jincm  shall  be  awarded  against  him,  to 
compel  him  thereunto ;  whereupon  tbe  fine,  being  set  and  assessed,  shall 
be  presently  paid  in:  and  satisfaction  ])eing  thereupon  made,  and  entered 
by  the  prothonotary  upon  the  roll  of  the  said  infornuition,  shall  be  for  ever 
a  full  and  final  discharge  of  the  defendant  for  the  same  offence. "(a)     Tbe 

{}))  I  Taunt.  10.'!,  5  Taunt.  2G8.  For  the  prococdinp.''  on  informations  on  penal  statutes, 
and  tiic  manner  of  conijjounding  them,  in  the  Common  Pleas,  see  R. — 2  Jac.  I.  §  5,  R.  M. 
12  Jac.  I.  R.  H.     20  Jac.  I.  C.  P. 

(c)   1  Wils.  79,  130. 

\d)  JirHii  V.  Beale.  M.  38  Geo.  III.  K.  R.,  and  sec  2  Rlac.  Rep.  1157. 

(ee)  2  Smith  R.  195.  (/)  2  Rlac.  Rep.  1157. 

Iffff)   1  Bos.  &  Pul.  51.  (hh)  2  Taunt.  213. 

(iV)  R.  M.  57  Geo.  HI.  K.  R.     4  Bur.  1929;  and  see  2  Blac.  Rep.  1154. 

(k)  2  Blac.  Rep.  1154,  1157.  (/)  5  Durnf  k  Kast,  257. 

hi)  R.  E.  33  Geo.  III.  K.  B.  (>i)   7  Taunt.  43.     2  Marsh.  35S,  S.  C. 

(a)  R.  M.  12  Jac.  I.  C.  P. 

Vol.  I.— 35 


558  OF  JUDGMENT  BY  CONFESSION. 

plaintiff,  in  compounding  a  penal  action  by  consent,  having  by  mistake 
abandoned  a  good  cause  of  action,  the  court  of  Common  Pleas  refused  to 
interfere,  and  rescind  the  order  made  thereon.(6) 


[*559]  *CHAPTER    XXII. 

Of  Judgments  ly  Confession,  and  Default  ;  the  Assessment  of  Da- 
mages, hy  Reference  to  the  Master  or  Prothonotaries,  or  hy  Writ 
of  Inquiry  ;  and  Proceedings  on  the  Statute  8  &;  9  W.  III.  c.  11,  §  8. 

When  the  defendant,  having  no  merits,  cannot  compromise  or  compound 
the  action,  it  is  usual  for  him  to  confess  it,  or  let  judgment  go  by  default. 

The  objects  proposed  by  confessing  an  action  are  twofold ;  first,  in  an 
action  for  damages,  to  save  the  expense  of  executing  a  writ  of  inquiry ; 
and  secondly,  to  obtain  terms,  such  as  a  stay  of  execution,  &c.  And  the 
confession,(aa)  or,  as  it  is  usually  called  from  the  entry  of  it,  a  cognovit 
actionem,  is  either  before  or  after  plea  pleaded  ;  in  the  latter  case,  the  plea 
being  withdrawn,  it  is  called  a  confession,  or  cognovit  actionem  relicta  veri- 
ficatione.ihh) 

An  opinion  formerly  prevailed,  that  the  confession  of  an  action  could  not 
regularly  be  made  before  declaration,  and  particularly  if  the  cause  of  action 
were  not  expressed  in  the  process ;  for  if  a  bill  of  Middlesex  or  latitat, 
&c.  were  sued  out  in  a  plea  of  trespass,  the  confession  of  that  action  it  was 
supposed  would  be  nugatory  ;  and  therefore  in  such  case,  if  the  parties  com- 
promised before  declaration,  a  warrant  of  attorney  to  confess  judgment 
should  have  been  taken,  instead  of  a  cognovit,  as  a  security  for  the  debt 
and  costs.  But  it  is  said  to  have  been  the  constant  practice  in  the  Com- 
mon Pleas,  to  take  cognovits  before  declaration,  and  judgments  have  been 
entered  thereon :  which  practice  was  recognized,  in  a  late  case,  by  that 
court. (c)  And,  in  the  Exchequer,  the  court  would  not  set  aside  a  judgment 
entered  up  on  a  cognovit,  and  order  the  money  levied  thereon  to  be 
restored,  on  the  ground  that  no  process  had  been  actually  served  on  the 
defendant,  before  he  signed  the  cognovit,  nor  was  at  that  time  sued  out ; 
it  appearing  that  instructions  had  been  then  transmitted  to  the  agent  of 
the  plaintiff's  attorney  in  London,  from  the  country,  to  issue  a  quo  minus, 
which  was  afterwards  accordingly  issued,  tested  of  course  after  the  date  of 
the  cognovit.(d)  In  general,  however,  the  confession  is  made  after  decla- 
ration, and  before  plea ;  and  written  on  the  declaration,  or  back  of  the 
inquiry,  or  on  plain  paper,  thus ;  "  I  confess  this  action,  or  (if  in 
[*560]  debt,)  the  *debt  in  this  cause,  and  that  the  plaintiff  hath  sustained 
damages  to  such  an  amount,  besides  his  costs  and  charges,  to  be 
taxed  by  the  master,"  in  the  King's  Bench,  or  "  prothonotaries,"  in  the 
Common  Pleas :  then  follow  the  terms,  if  any  are  agreed  on,  as  that  "  no 
judgment  shall  be  entered  up,  or  execution  issue,  until  default  shall  be  made 
in  payment  of  the  debt,  or  damages,  and  costs,  by  a  certain  day ;  and  that 
no  writ  of  error  shall  be  brought,  or  bill  in  equity  filed  ;  but  that  in  case 

(6)   5  Taunt.  850. 

(aa)  Append.  Chap.  XXII.  §1,2.  (bb)  Id.  §  3. 

(c)   1  Taunt.  701.     1  Moore,  428,  S.  C.  (rf)  8  Price,  513. 


OF  JUDGMENT  BY  CONFESSION.  500 

default  shall  be  made,  tlio  plaintiff  shall  be  at  liberty  to  enter  up  jmlfrment, 
and  take  out  execution,  for  the  (K'l>t,  or  daina^cs,  and  costs,  tof^ethcr  with 
slicrift's  poundage,  and  all  otlier  incidental  expenses. "(a)  A  mere  cogno- 
vit need  not  be  stamped,  unless  it  contain  any  terms  of  agreement  between 
the  partie8.(i)  But  if  given  by  a  prisoner,  in  custody  of  a  nhcriffif  officer, 
it  seems  that  an  attorney  must  be  present,  on  behalf  of  the  defendant,  to 
attest  the  execution  of  it,  in  the  Common  Pleas  ;(<-c)  thctugh  if  it  be  given 
by  a  prisoner  in  custody  of  the  marshal^  it  is  otherwise  :(//(/)  And  in  the 
King's  Bench,  we  have  seen,(f;)  a  cognovit  given  by  a  defendant  in  custody 
on  mesne  process  is  valid,  although  no  attorney  be  present  on  the  part  of 
the  defendant,  unless  it  be  shown  that  some  undue  advantage  was  taken 
of  him.  When  tlie  confession  is  after  plea  ])leaded,  the  defen<lant's  attorney, 
or  his  clerk,  ought  to  come  in  person  before  the  master  to  withdraw  it,  in 
the  King's  Bench  ;(^f)  but  this  is  unnecessary  in  the  Conunon  IMeas.f//) 

Again,  tlie  confession  is  either  of  the  whole  or  part  of  tlie  cause  of  action. 
If  it  be  of  the  whole,  and  not  upon  terms,  the  plaintift"s  attorney  may 
immediately  sign  final  judgment,(/j)  and  take  out  execution  thereon  ;  but 
if  it  be  not  of  the  whole,  he  can  only  sign  judgment  for  the  part  confessed, 
and  the  action  must  proceed  for  the  residue.  When  a  judgment  is  con- 
fessed upon  terms,  in  the  King's  Bench,  it  being  in  effect  but  a  conditional 
judgment,  the  court  will  take  notice  of  it,  and  see  the  terms  performed: 
but  when  the  judgment  is  acknowledged  absolutely,  and  a  subseriuent  agree- 
ment made,  this  does  not  affect  the  judgment ;  and  the  court  will  take  no 
notice  of  it,  but  put  the  party  to  his  action  on  the  agreement. (i)  It  has 
been  Baid,(?")  that  the  court  cannot  hold  plea  of  an  agreement  upon  motion : 
But  it  is  usual  in  practice,  to  set  aside  a  judgment  entered  up,  and  execu- 
tion taken  out,  contrary  to  the  agreement  of  the  parties,  at  the  time  of 
confessing  the  judgment. (A:)  And  where  the  plaintiff,  on  the  eve  of  trial, 
accepted  from  the  defendant  a  cognovit  for  a  certain  sum,  payable 
at  a  future  day,  in  full  discharge  of  the  action,  and  *the  master,  [*561] 
on  the  taxation,  allowed  the  plaintiff  costs  previous  to  the  cognovit ; 
the  court  refused  to  admit  the  plaintifi"s  affidavit,  stating  a  verbal 
agreement  that  he  should  have  such  costs,  in  case  the  defendant  made 
default  in  payment,  and  that  he  had  made  such  default,  and  made  the  rule 
for  the  disallowance  of  such  costs  absolute. (aa) 

By  a  late  rule  of  the  court  of  King's  Bench, (/>^)  "no  judgment  can  be 
signed  upon  any  cognovit^  without  such  cognoint  being  first  produced  to 
the  clerk  of  the  dockets,  and,  after  taxation  of  the  costs,  filed  with  him." 
And,  by  the  statute  3  Geo.  IV.  c.  89,  §  3,  "every  cognovit  actionem 
given  by  any  defendant  in  any  personal  action,  in  case  the  action,  in  which 
such  cognovit  actionem  shall  be  given,  shall  be  in  the  said  court  of  King's 
Bench,  or  a  true  copy  of  such  cognovit  actionem,  in  case  the  action  wherein 

(fl)  Append.  Chap.  XXII.  ?  1. 

{h)  Per  Cur.  M.  42  Geo.  III.  K.  2  Bo.^.  k  Pul.  1.''.0,  C.  P.  4  East,  188.  1  Car.  &  P. 
532. 

(fc)  2  Taunt.  360.  Arnold  v.  Lowe,  T.  57  Geo.  III.  C.  P.  7  Taunt.  70.3,  (a).  Id.  701. 
1  Moore,  428,  S.  C,  and  sec  3  Durnf.  &  East,  OKi.     1  East,  242,  («).     8  Dowl.  k  RyJ.  56. 

{dd)  3  Durnf.  k  East,  616.     8  Dowl.  k  Ryl.  5G.     Ante^  650. 

(e)   Ante,  550. 

(/)   1  Ld.  Ra^-m.  345.     Imp.  K.  B.  10  Ed.  422.  {g)  Imp.  C  P.  7  Ed.  439. 

{h)  Ajipond.  Chap.  XXII.  <!  5.  Ac.  15,  kc  (i)   1  Salk.  400. 

(k)  G  Mod.  14;  and  see  2  Blac.  Rep.  043.  [nn]  7  Dowl.  k  Ryl.  375. 

\bb)  R.  H.  2  &  3  Geo.  IV.  K.  B.  5  Barn,  k  Aid.  560.  1  Dowl.  k  Ryl.  471.  2  Chit.  Rep. 
377. 


551  OF  JUDGMENT  BY  CONFESSION. 

the  same  is  given  shall  be  in  any  other  court,  shall,  together  with  an  affidavit 
of  the  time  of  the  execution  thereof,  be  filed  with  the  said  clerk,  in  like 
manner  as  warrants  of  attorney,  or  copies  thereof,  and  affidavits, (c)  within 
the  space  of  twenty-one  day  after  such  cognovit  actionem  shall  have  been 
executed ;  otherwise  such  cognovit  actionem^  and  any  judgment  entered  up 
thereon,  and  any  execution  taken  out  on  such  judgment,  shall  be  deemed 
fraudulent  and  void  against  the  assignees  of  the  person  giving  such  cognovit 
actionem,  under  a  commission  of  bankrupt  issued  against  him  after  the 
expiration  of  the  said  space  of  21  days,  in  like  manner  as  warrants  of 
attorney,  and  judgments  and  executions  thereon,  are  deemed  and  taken  to 
be  fraudulent  and  void  by  that  act.(c)  And,  if  such  cognovit  actionem 
shall  be  given  subject  to  any  defeazance  or  condition,  such  defeazance  or 
condition  shall  be  written  on  the  same  paper  or  parchment  on  which  such 
cognovit  actionem  shall  be  written,  before  the  time  when  the  same,  or  a 
copy  thereof  respectively,  shall  be  filed  ;  otherwise  such  cognovit  actionem 
shall  be  null  and  void,  to  all  intents  and  purposes. "(c?)  These  provisions 
were  extended  to  the  assignees  of  insolvent  debtors,  by  the  5  Geo.  IV.  c. 
61,  §  16,  and  7  Geo.  IV.  c.  57,  §  33.  And,  by  the  latter  statute,(e)  "  in 
all  cases  where  any  prisoner,  who  shall  petition  the  court  for  relief  under 
that  act,  shall  have  executed  any  warrant  of  attorney  to  confess  judgment, 
or  shall  have  given  any  cognovit  actionem,  whether  for  a  valuable  consi- 
deration or  otherwise,  no  person  shall,  after  the  commencement  of  the 
imprisonment  of  such  prisoner,  avail  himself,  or  herself,  of  any  execution 
issued  upon  any  judgment  obtained  upon  such  warrant  of  attorney  or  cogno- 
vit actionem,  either  by  seizure  and  sale  of  the  property  of  such  prisoner, 
or  by  sale  of  such  property  theretofore  seized,  or  any  part  thereof;  but  that 
any  person  or  persons,  to  whom  any  sum  or  sums  of  money  shall  be  due 
in  respect  of  any  such  warrant  of  attorney  or  cognovit  actionem,  shall  and 
may  be  a  creditor  or  creditors  for  the  same,  under  that  act." 

*A  bond,  upon  the  face  of  it,  appeared  to  be  conditioned  for 
[  *562  ]  the  payment  of  a  sum  certain,  but  by  an  indenture  of  the  same 
date,  declaring  the  purposes  for  which  the  bond  was  executed, 
it  was  agreed  that  it  should  be  lawful  for  the  obligees  to  commence  an 
action  upon  the  bond,  and  proceed  to  judgment,  whenever  they  should 
think  fit ;  and  upon  judgment  being  obtained  to  issue  execution,  and  that 
the  judgment  should  be  a  security  for  the  payment  to  the  obligees,  on 
demand,  of  all  sums  of  money  which  then  were  or  might  thereafter 
become  due  to  them:  a  judgment  having  been  entered  up  by  virtue  of 
this  deed,  the  obligees  issued  execution,  without  assigning  breaches  or 
executing  a  writ  of  inquiry ;  and  the  court  held,  that  the  indenture,  by 
virtue  of  which  the  judgment  was  entered  up,  was  in  legal  effect  a  cogno- 
vit actionem,  within  the  meaning  of  the  3d  section  of  the  statute  3  Geo. 
IV.  c.  39 ;  or  if  not,  that  it  was  a  contrivance  to  defeat  the  provisions  of 
that  statute :  and  the  indenture  not  having  been  filed  with  the  proper  offi- 
cer, within  twenty-one  days  after  its  execution,  nor  judgment  entered  up 
within  that  period,  as  required  by  the  statute,  the  court,  upon  application 
by  the  assignees  of  the  obligor,  who  had  become  bankrupt,  ordered  the 
execution  to  be  withdrawn. (a) 

If  a  cognovit  be  given  by  an  attorney,  it  seems  that  the  plaintiff  must 

(c)  Ante,  555.  {d)  I  5.  (e)  §  34. 

(a)  5  Barn.  &  Cres.  650.     8  Dowl.  &  Ryl.  424,  S.  C. 


OF  JUDGMENT  BY  DEFAULT.  562 

first  file  a  hill  against  bim,  before  be  signs  judgment  tbereon  :{}>)  and  in 
general,  common  bail  must  be  filed  for  tbe  defendant  upon  a  cognovit ; 
tbougb,  if  judgment  lias  been  irregularly  signed,  witbout  filing  common 
bail  for  tbe  defendant  according  to  tbe  statute,  till  after  tbe  term  succeeil- 
ing  tliat  in  wbicb  tbe  writ  "was  returnal)le,  and  after  tbe  jutlgment  itself 
has  been  entered  up,  tbe  dci'i'ndant,  we  bavc  seen,(r-)  baving  given  a  cmj- 
novit,  is  estopped  from  ol)jecting  to  tbe  irregularity,  if  tbe  ]»laiiitiff  bag 
filed  common  bail  nunc  pro  tunc,  before  tbe  time  of  making  tbe  objection. 
We  have  also  8een,((^  in  what  cases  the  bail  are,  or  are  not  discharged,  by 
taking  a  cognovit  from  tbe  principal.  And  a  certificate,  it  may  be  remem- 
bered, will  discbarge  a  cognovit,  given  after  a  secret  act  of  bankruptcy,  for 
a  debt  previously  due,  with  interest  and  costs.(e) 


Judgment  by  default,  which  is  an  implied  confession  of  the  action,  is 
either  by  7ion  sum  informatu8{f)  where  the  defendant's  attorney,  having 
appeared,  .says  that  he  is  not  informed  of  any  answer  to  be  given  to  tbe 
action  ;  or  by  nil  dicit,((/)  where  tbe  defendant  himself  appears,  but  says 
nothing  in  bar  or  preclusion  thereof  :[a]  And  tbe  latter  judgment,  which  is 
the  more  usual,  is  either  for  want  of  any  plea  at  all ;  or  for  want  of  an 
issuable  plea,  after  a  judge's  order  for  time,  on  tbe  terms  of  pleading 
issuably ;  or  when  the  defendant  pleads  a  plea  not  adapted  to 
the  nature  of  *the  action,  or  which  may  be  considered  as  a  nul-  [  *5G3  ] 
lity,  or  is  false  and  vexatious,  or  not  pleaded  in  due  time,  or 
proper  manner. 

On  the  expiration  of  the  time  for  pleading,  a  rule  to  plead  liaving  been 
given,  and  a  plea  demanded,  when  necessary,  tbe  plaintiff's  attorney  should 
search  for  a  plea,  if  not  delivered  to  him,  with  tbe  clerk  of  the  papers,  who 
receives  special  pleas  in  the  King's  Bench,  and  with  the  clerk  of  tbe  judg- 
ments, who  keeps  the  general  issue  book  at  tbe  King's  Bench  office,  or  at 


(6)    Walker  v.  Wolley,  H.  37  Geo.  III.  K.  B.     7  Durnf.  &  East,  207.(a)- 

(c)  Ante,  242.  (d)  Ante,  295. 

(c)  1  Chit.  Ilcp.  16.     Ante.  210 ;  but  see  2  Taunt.  G8.     2  Rose,  112,  S.  C.  semb.  contra. 

(f)  Append.  Chap.  XXII. ^  2."),  &c. 

(</)  Append.  Chap.  XXII.  g  34,  &c.  71,  &c.  88,  9. 

[.\]  There  must  be  service  of  the  process,  and  in  .some  states  ai)pearance,  or  there  can  be  no 
judfrment;  SmilhcAion  t.  OnntK,  Wri^'bt.  .^74.  Lew  v.  JJuncmi,  2  Hrevard.  2<"i.!.  Wunv.  Tndtl, 
1  Ahi.  1  !!'.>.  Druer  v.  Spence,  3  Id.  :i8.  If(i/i.vm  v.  Emanuel,  8  Post,  442.  .S'hm7/i  v.  JJnnirh  JJnuk, 
5  Ala.  26.  J'rentiss  v.  Mellen,  I  Smedes  &  Marsh,  521.  Harris  v.  Jlontio,  1  How.  Miss.  106. 
Davis  V.  Jordan,  5  Id.  295.  liozman  v.  Brower,  6  Id.  43.  Purvis  v.  Forbes,  5  Id.  518.  Gil- 
breath  V.  Kuy  Kendall,  1  Pike,  50.  Moore  v.  ]Vatkins,  Id.  208.  Wol/ord  v.  Ilotrrll,  2  Pike, 
1.  Bascom  V.  Young,  7  Mis.  1.  January  y.  Henry,  3  Munr.  8.  Rany  v.  The  Governor,  ,\-c., 
4  Blackf.  2.  Bliss  v.  Wilson,  Id.  109.  Kltnger  v.  Brownell,  5  Id.  332.  Miller  v.  Bett„rf.  6 
Jd.  30.  Garrett  v.  Phelps,  1  Scam.  331  ;  neither  will  service  upon  one  in  an  action  against 
several  suflice  to  take  judpment  upon  against  tliose  not  served ;  Teal  v.  Russell,  2  Scam. 
319.      Rus.iell  V.  Iloyan.  1   Id.  .".,^2.      C<de  v.    Wnyiier,  2  Pike,  154. 

Where  tbe  conduct  of  the  idiiinlin'  lias  been  fair,  and  tlie  proceeding.^  regular,  a  judgment 
by  default  will  not  be  reversed  merely  to  allow  a  trial  upon  the  merits  :  Murat  v.  Bolton,  1 
Green.  304.  But  the  defendant  may  avail  himself  of  rad'cal  defects;  Farrer  v.  Bebee,  Geo. 
Dccis.,  Part  2,  p.  125.  Gilbreath  v.  Kuy  Krndnll.  1  Pike,  80;  although  this  should  be  done 
at  the  first  opportunity  after  the  defect  or  irregularity  is  discovered  ;  Ryder  v.  Twiss,  3 
Scam.  4. 

A  judgment  by  default  may  be  set  aside  on  motion,  affidavit  of  merits  and  payment  of 
costs,  if  the  opportunity  of  trial  be  not  thereby  lost ;  Porter  v.  Johnson,  2  How.  Miss.  136. 
J'rore  v.  Fvlsotn,  4  Id.  282.     Miller  v.  Alexander,  Coxe,  400. 


>63 


OF  JUDGMENT  BY  DEFAULT. 


the  protlionotaries'  office  in  the  Common  Pleas ;  and  if  no  plea  be  deli- 
vered, or  found  at  either  of  those  offices,  the  plaintiff's  attorney  may  sign 
jud<finent,  as  for  want  of  a  plea :  And  judgment  may  be  signed  in  like 
manner,  if  the  defendant  do  not  rejoin, (a)  plead  to  a  new  assignment,  or 
join  in  demurrer,  when  necessary;  or,  in  the  King's  Bench,  if  he  do  not 
return  the  paper  or  demurrer  book  in  due  time.  If  the  defendant  plead 
a  false  plea  of  judgment  recovered,(5)  or  other  plea  that  is  not  issuable, (e) 
after  a  judge's  order  for  time  to  plead,  on  the  terms  of  pleading  issuably, 
the  plaintiff,  we  have  seen,(f)  may  consider  the  plea  as  a  nullity,  and  sign 
judgment.  So  if  the  defendant,  being  under  an  order  to  plead  issuably, 
plead  several  pleas,  one  of  which  is  not  issuable,  the  plaintiff,  in  the  King's 
Bench,  may  sign  judgment  as  for  want  of  a  plea,  although  the  other  pleas 
are  issuable  :[d)  Where  the  defendant  had  obtained  an  order  for  staying 
proceedings,  upon  payment  of  debt  and  costs,  which  had  been  taxed,  and 
afterwards  abandoned  the  order,  and  pleaded  a  judgment  recovered,  the 
court  held,  that  the  plaintiff  was  at  liberty  to  sign  judgment,  the  plea  filed 
being  a  fraud  upon  the  judge's  order. (e)  And  judgment  may  be  signed 
in  the  Common  Pleas,  if  a  declaration  in  debt  demand  two  thousand 
pounds,  and  contain  several  counts,  each  of  which  states  a  less  sum,  e.  g. 
five  hundred  pounds,  and  the  defendant  being  under  terms  of  pleading 
issuably,  plead  thereto,  that  he  does  not  owe  the  said  sum  of  five  hundred 
pounds.  (/)  But  if  the  defendant,  when  under  an  order  to  plead  issuably, 
put  in  a  plea  which,  though  informal,  goes  to  the  substance  of  the  action, 
the  plaintiff  cannot  sign  judgment,  as  for  want  of  a  plea  ;(^)  nor  can 
judgment  be  signed,  if  one  of  several  pleas  be  merely  demurrable. (7i) 
And,  in  the  Common  Pleas,  where  a  defendant,  being  under  terms  to  plead 
issuably,  put  in  an  issuable  plea,  to  which  the  plaintiff  replied,  and  gave 
notice  of  trial,  and  the  defendant  demurred  specially  to  the  replication, 
whereupon  the  plaintiff  signed  judgment ;  the  court  held  that  the  judg- 
ment was  irregular  ;  4  Bing.  267.     Ayite,  472. 

When  the  defendant  pleads  a  plea  not  adapted  to  the  nature  of  the 
action,  as  nil  debet  in  assumpsit^ii)  or  non  assumpsit  in  debt,[k)  &c.,  the 
plaintiff  may  consider  it  as  a  nullity,  and  sign  judgment.  But  a  plea  in 
assumpsit,  that  the  defendant  did  not  undertake,  (omitting  the 
[  *564  ]  words  "or  *promise,")  in  manner  and  form,  &c.,  with  a  conclu- 
sion to  the  country,  is  not  so  unintelligible,  as  to  entitle  the  plain- 
tiff to  sign  judgment  as  for  want  of  a  plea.(«flf)  So,  the  plea  of  7iil  debet 
in  an  action  of  debt  on  judgment,(bb)  or  not  guilty  in  an  action  of  debt  on 
a  penal  statute, (cc)  is  not  such  a  nullity  as  will  warrant  the  plaintiff  in 
signing  judgment ;  nor  can  judgment  be  signed  in  a  qui  tarn  action,  for 
entitling  the  plea  with  the  names  of  the  parties,  without  the  addition  of 


\t 


(a)  5  Durnf.  &  East,  152. 

(b)  1  Blac.  Rep.  376.     2  Wils.  IIV.     3  Wils.  33.     1  Moore,  431.     Ante,  4T2. 

(c)  Ante,  472. 

(d)  3  Durnf.  &  East,  305  ;  and  see  1  East,  411.     Barnes,  314.     Ante,  472,  3. 

(c)  2  Chit.  Rep.  292.  (/)  3  Bos.  &  Pul.  174;  but  see  1  Dowl.  &  Ryl.  473. 

Iff)  5  Durnf.  &  East,  152  ;  and  see  i  Chit.  Rep.  355.(a)     1  Dowl.  &  Ryl.  359. 

(h)  King  V.  Barber,  M.  30  Geo.  III.  K.  B. 

(i)  Barnes,  257  ;  but  see  Cas.  temp.  Hard.  179.  Lawes  on  Pleading,  529.  1  Chit.  Rep. 
716,  in  notis.  And  see  Lawes  on  Pleading,  527,  &c.  5  Mod.  92.  2  Str.  1022.  Cas.  temp. 
Hard.  173,  S.  C.  1  Chit.  Rep.  715,  16  ;(a)  and  the  cases  there  cited,  as  to  the  validity  of  a 
plea  of  not  guilty  in  assumpsit,  or  non  assumpsit  in  an  action  of  tort. 

(k)  Ante,  476.  (aa)  3  Dowl.  &  Ryl.  622. 

(66)  2  Chit.  Rep.  239.  {cc)  1  Durnf.  &  East,  462  ;  and  gee  3  Bos.  &  Pul.  111. 


OF  JUDGMENT  BY  DEFAULT.  564 

qui  tarn,  &c.,  to  the  plaintiff's  namc.((f)  So,  a  plea,  in  debt  for  1800?. 
that  the  defendant  does  not  owe  the  said  sum  of  10/.  above  demanded,  &c., 
is,  it  seems,  sufficient,  and  the  amount  may  be  rejected  as  surplusage.(^) 
And  a  misstatement  of  the  defendant's  christian  name,  in  the  commence- 
ment of  his  plea,  does  not  entitle  the  plaintifl'  to  treat  it  as  a  nullity,  and 
sign  judgment  as  for  want  of  a  plea.(_f) 

In  the  King's  Beneli,  when  a  plea  is  clearly  absurd  on  the  face  of  it,  as 
where  it  attempts  to  set  up  as  a  defence,  a  judgnu-nt  recovered  in  the  Ex- 
chc({uer  in  Ireland,  before  the  cause  of  action  accrued,  the  plaintiff  may 
consider  it  as  a  nullity,  and  sign  judgment  as  for  want  of  a  plea,  without 
a  previous  application  to  the  court  :(^)     And  a  plea  of  set  off  for  money 
due  on  a  recognizance,  and  also  for  money  due  uptm  promises,  pleatlcd  to 
an  action  of  debt  on  bond,  as  if  to  an  action  of  aHiocnipKit,  was  holden  in 
that  court  to  be  a  nullity,  and  that  the  plaintiff  might  sign  judgment. (//) 
So,  where  a  sham  plea  was  pleaded,  of  judgments  recovered  in  the  court 
of  pie-poudre  in  Bartholomew  Fair,  in  terms  obviously  denoting  fictitious 
proceedings,  the  court  reprobated  the  practice ;  and,  considering  the  plea 
as  a  nullity,  suffered  the  plaintiff  to  sign  judgment  as  for  want  of  a  plea, 
and  made  the  defendant's  attorney  pay  the  costs  of  it,  and  of  the  applica- 
tion.(<)     And  where  the  defendant  first  pleaded  in  abatement,  and  after- 
wards, without  applying  to  the  court  for  leave  to  withdraw  that  plea, 
pleaded  a  judgment  recovered,  the  court  held  that  the  plaintift'  was  at 
liberty  to  sign  judgment  as  for  want  of  a  plca.(A:)     So,  in  the  Common 
Pleas,  where  the  defendant  pleaded  the  statute  of  additions  in  abatement, 
the  court  held  the  plea  to  be  a  nullity,  and  gave  the  plaintift' leave  to  sign 
judgment :(/)  and  Lord  Alranhni,  in  delivering  the  opinion  of  the  court, 
observed,  that  perhaps  it  would  have  been  the  more  regular  mode  of  pro- 
ceeding for  the  plaintiff  to  have  signed  judgment  as  for  Avant  of  a  plea, 
without  any  application  to  the  court,  and  thus  have  put  the  defendant  to 
move  to  have  that  judgment  set  aside.(7?i)     In  the  latter  court,  if  the  de- 
fendant plead  a  subtle  plea,  to  ensnare  the  plaintiff,  the  court  will  permit 
the  plaintiff  to  sign  judgment,  unless  the  defendant  Avill  amend. (??)     But, 
unless  the  plea  be  manifestly  absurd  on  the  face  of  it,  or  probably  a  sham 
*plea,(rt)  the  plaintiff  in  the  King's  Bench,  will  not  be  justified 
in  signing  judgment  as  for  want  of  a  plea,  without  a  previous  [  *5G5  ] 
application  to  the  court  \{b)  which  is  also  necessary,  after  the  de- 
fendant has  been  ruled  to  abide  by  his  plea.(^')     If  the  defendant  plead 
in  abatement,  without  an  affidavit  of  the  truth  of  the  plea, (</(/)  or  a  plea 
of  tender  without  paying  money  into  court,(fV')  or  if,  after  craving  oifer  of 
a  deed,  he  do  not  set  forth  the  whole  of  it,(^')  the  plaintiff,  in  either  of 

(d)  1  East,  333. 

(e)  1  Dowl.  &  Rvl.  473.     1  Moore  &  P.  27G,  but  sec  3  Bos.  &  Pul.  1T4. 
(/•)  7  Dowl.  &  livl.  nil. 

(ff)   1  Cliit.  Hc]).  "5'2.").  6,  in  nolis,  and  see  4  Taunt.  668.     1  Dowl.  &  Rvl.  577. 
(A)  2  Maule  &  Sol.  fJOfi.  (i)  10  East,  237. 

(k)  5  Dowl.  &  Kvl.  623. 

\l)  3  Bo.s.  &  Pul.  3fP5,  and  see  7  East,  383.     2  New  Rep.  C.  P.  188.     4  Taunt.  668. 
hn)  3  Bos.  &  Pul.  398.  (")  3  Taunt.  33:t. 

(a)  6  Maule  &  Sel.  133.  (b)   1  Chit.  Rep.  525,  in  notia. 

\c)  Id.  .56.'i,  in  nolix.     5  Maule,  k  Sel.  518,  S.  C. 

(<W)  Pr.  Reg.  C.  P.  4.     Forrest,  144 ;  and  see   1   Str.  639.     2  Ld.  Raym.  1409,  S.  C.     2 
Moore,  213  ;  but  see  1  Str.  638. 
(ee)   1  Str.  638.     Barnes.  252. 
(/)  4  Duruf.  k  East,  370.     Slater  v.  Ilorne,  E.  34  Geo.  III.  K.  B.  5  Durnf.  k  East,  662,  3. 


5gg  OF  JUDGMENT  BY  DEFAULT. 

these  cases,  may  sign  judgment  as  for  want  of  a  plea.  But  judgment  can- 
not be  signed,  in  the  King's  Bench,  after  a  plea  in  abatement,  because  the 
affidavit  to  verify  the  truth  of  it  was  sworn  before  the  defendant's  attor- 
ney :(//)  And  in  general,  when  the  matter  is  doubtful,  it  is  the  safest 
course  not  to  sign  judgment,  but  to  take  issue  on  the  plea,  demur  thereto, 
or  move  the  court  to  set  it  aside. (/«) 

AVhen  shayyi  pleas,  however,  are  pleaded,  calculated  to  raise  issues  re- 
quiring different  modes  of  trial,  as  a  set  off  for  money  due  on  a  recogni- 
zance or  judgment,  the  issue  upon  which  is  triable  by  the  record^  and  for 
money  due  on  simple  contract,  the  issue  upon  which  is  triable  by  the 
country,  the  court  of  King's  Bench,  on  an  affidavit  that  the  pleas  are 
false,  will  sufier  the  plaintiff  to  sign  judgment  as  for  want  of  a  plea,  and 
make  the  defendant,  or  his  attorney,  pay  the  costs  occasioned  by  the 
pleas,  with  the  costs  of  the  application. (z)  And  the  plaintiff  may  sign 
judgment,  as  for  want  of  a  plea,  if  the  plea  be  palpably  a  sham  plea. (A;) 
So,  where  a  sham  plea  is  such  as  to  make  it  necessary  for  the  plaintiffs 
attorney  to  consult  counsel,  and  thereby  cause  delay  and  expense,  the 
court  will  permit  the  plaintiff  to  sign  judgment,  and  make  the  attorney 
pay  the  costs  -.{l)  And,  in  a  similar  case,  the  costs  were  ordered  to  be  paid 
by  the  attorney,  though  it  appeared  that  he  was  expressly  instructed  by 
the  defendant  to  plead  a  dilatory  plea.(wi)  But  the  court  of  King's  Bench 
will  not  grant  a  rule  for  the  plaintiff  to  sign  judgment  as  for  want  of  a 
plea,  merely  on  an  affidavit  that  the  plea  is  false,  unless  it  be  also  shown 
that  it  is  vexatious,  and  calculated  to  create  unnecessary  delay  and  ex- 
pense.(?i)  And  where  the  defendant,  after  delaying  the  plaintiff,  and  de- 
luding him  with  promises  of  payment,  pleaded  a  plea  of  judgment  reco- 
vered, the  court  of  Common  Pleas  refused  to  set  the  plea  aside,  and  permit 
the  plaintiff  to  sign  judgment.(o)  So  where  the  defendant,  in  an  action 
against  the  drawer  of  a  bill  of  exchange,  pleaded  the  delivery  of  twenty 
pipes  of  port  wine  in  satisfaction ;  that  court  refused  to  allow  the  plaintiff 
to  sign  judgment  as  for  want  of  a  plea,  although  it  was  sworn  that  the 
plea  Avas  altogether  false  ;  and  intimated  that  in  future  such  applications 

would  be  discharged  with  costs.  1  Moore  &  P.  338.  4  Bing. 
[  *566  ]  512,  S.  C.     To  support  a  motion  for  leave  to  sign  *judgment 

as  for  want  of  a  plea,  on  the  ground  that  improper  pleas  have 
been  pleaded,  there  must  be  an  affidavit,  in  the  King's  Bench,  that  they 
are  untrue. (a)  But  if  such  pleas  have  been  pleaded  under  a  rule  to  plead 
double,  it  is  not  necessary  first  to  move  to  set  aside  the  rule. (a) 

When  the  defendant  pleads  before  he  has  appeared, (&)  or  taken  the  de- 
claration out  of  the  office,((?)  or  before  the  bail  are  perfected  in  a  bailable 

{g)  3  Maule  &  Sel.  154. 

(h)  Ante,  473  ;  but  see  4  Taunt.  668.     2  Moore,  213. 

(?)  2  Barn.  &  Aid.  197  ;  and  see  1  Chit.  Rep.  564,  (a). 

\k)  6  Maule  &  Sel.  134. 

(/)  2  Barn.  &  Aid.  199.  5  Barn.  &  Aid.  750,  751,  (a).  1  Dowl.  &  Ryl.  446,  448,  S.  C. 
2  Chit.  Rep.  335. 

(to)  1  Chit.  Rep.  182  ;  but  see  3  Dowl.  &  Ryl.  233,  4. 

{n)  1  Chit.  Rep.  524,  5;  and  see  id.  355.  1  Dowl.  &  Rvl.  359.  2  Barn.  &  Cres.  81.  3 
Dowl.  &  Ryl.  231,  S.  C.  Per  Cur.  M.  4  Geo.  IV.  C.  P. ;  but  see  1  Barn.  &  Cres.  286.  2 
Dowl.  &  Ryl.  661,  S.  C.  contra. 

(o)   1  Bing.  380.     8  Moore,  437,  S.  C. 

(a)  2  Barn.  &  Aid.  777.     1  Chit.  Rep.  564,  S.  C.  {b)   2  Chit.  Rep.  8. 

(c)  1  Chit.  Rep.  735.  Imp.  C.  P.  7  Ed.  420.  2  Chit.  Rep.  7,  [a) ;  but  see  1  Bos.  &  Pul. 
341,  semb.  contra.     1  Chit.  Rep.  735,  (a).     2  Chit.  Rep.  7. 


OF  JUDGMENT  BY  DEFAULT.  566 

cau8e,(^)  the  plaintiff  may  consider  the  plea  as  a  nullity,  and  sign  judgment. 
So,  if  the  defendant  plead  in  aljatement  after  a  f/oural  inij)arlaiice,  or  to  the 
jurisdiction  of  the  court  after  a  apcciul  iniparhmee,  the  plaintiff,  we  have 
8een,(«!)  may  sign  judgment  as  for  want  of  a  plea  :  And  judgment  may  be 
signed,  when  he  pleads  in  abatement,  after  the  expiration  o^  four  days 
inclusive  from  the  delivery,  or  filing  and  notice  of  declaration. (/)  So,  if 
the  defendant  plead  in  abatement  to  one  count,  and  in  bar  to  others,  after 
the/o?/r  days  allowed  for  pleading  in  abatement,  it  seems  that  the  jdaintiff 
may  sign  judgment. (r/)  But  a  judge's  summons  returnable  before  judg- 
ment signed,  though  after  the  time  for  pleading  has  expired,  operates  as  a 
stay  of  proceedings  ;(/i)  therefore,  the  plaintiff  in  such  case  cannot  sign 
judgment,  without  first  attending  the  summons  ■.{h)  And,  in  general,  thoughi 
a  plea  be  not  pleaded  in  due  time,  yet  if  the  other  party  do  not  take  ad-  \ 
vantage  of  it  immediately,  the  defendant  may  deliver  his  plea  at  any  time 
before  judgment  is  actually  signed  against  him.(«) 

In  the  King's  Bench,  when  a  plea  of  solvit  ad  diem,  which  ought  to  bo 
delivered  to  the  plaintiff's  attorney,  is  entered  in  the  general  issue  book, (A:) 
or  a  plea  is  fled  in  the  office  of  the  clerk  of  papers,  that  ought  to  be  de- 
livered to  the  plaintiff  's  attorney,  (/)the  plaintiff  nuiy  consider  it  as  a  nul- 
lity, and  sign  judgment ;  as  he  may  also,  in  the  Common  Pleas,  if  the  general 
issue  be  not  delivered  in  /o/*/n,(w)or  if  a  plea  be  pleaded  by  an  attorney  of 
another  court, (n)  and  judgment  may  be  signed  in  that  court,  when  a  de- 
fendant files  two  pleas  at  several  times  on  the  same  day,  in  order  to  mislead 
the  plaintiff  by  the  second  plea.(o)  So,  if  several  pleas  be  filed,  to  tho 
whole  or  part  of  a  declaration,  without  a  rule  to  plead  several 
♦matters  being  drawn  up,  or  instructions  given  for  it  to  the  clerk  [  *o67  3 
of  the  rules,  they  are  considered,  in  the  King's  Bench,  as  a 
nullity,  and  the  plaintiff  may  sign  judgment  ;(rt)  though  it  seems  that,  in 
the  Common  Pleas,  the  practice  is  for  the  defendant  to  apply  to  the  court, 
to  strike  out  one  of  them  :(b)  And,  in  both  courts,  the  plaintiff  may  sign 
judgment,  if  the  plea,  when  necessary,  be  not  signed  by  a  counsel, (c)  or 
Serjeant. ((7c^  A  judgment  by  default,  we  have  seen, (cc)  is  irregular,  when 
the  defendant,  in  an  action  not  bailable,  has  not  been  served  with  a  copy 
of  process ;  or  when  there  has  been  no  declaration  regularly  delivered,  or 

(d)  Ante,  465,  6.  (e)  Ante,  4G3,  476. 

(/)  1  Durnf.  &  East,  211,  689. 

(g)  Mardndale  v.  Harding,  M.  58  Geo.  HI.  K.  B.     1  Chit.  Rep.  716,  in  twtU. 

Ih)   1  Chit.  Kep.  93.     Ante,  470. 

\i)   1  Durnf.  &  East,  16.     4  Durnf.  &  East,  195,  6.     5  Durnf.  &  East,  35. 

\k)  5  Durnf.  &  East,  661. 

(I)  2  Burn.  &  Aid.  392.  1  Chit.  Rep.  211,  S.  C.  Id.  225.  But  the  peneral  issue  may  be 
filed  with  tlie  clerk  of  the  judgments.  Id.  715.  And  see  R.  T.  2  Jac.  I.  reg.  1.  R.  T.  16 
Car.  II.  R.  M.  2  W.  &  M.  K.  B.  as  to  delivering  pleas,  that  ought  to  be  filed  in  the  office  of 
the  clerk  of  the  papers. 

(m)  Cas.  Pr.  C.  P.  126.  Pr.  Reg.  306,  S.  C.  Barnes,  239,  S.  P.  Oibson  v.  Ilotueman,  E. 
66  Geo.  III.  K.  B.  1  Chit.  Rep.  647,  {a). 

(n)  Barnes,  259.  Pr.  Reg.  307,  S.  C.  But  if  the  plaintiff  take  a  plea  out  of  the  office, 
and  keep  it  he  waives  any  ()l)je(tion  to  the  i)lea.  on  the  ground  of  it.<  having  been  i)leaded  by 
a  new  attorney  without  an  order  to  change  the  attorney,  2  New  Rep.  C.  P.  509;  but  see 
Barnes,  252,  xemh.  contra. 

(o)  3  Taunt.  386. 

(a)  Per  Bnller,  J.,  in  Bedford  ^  Gatfield,  H.  26  Geo.  III.  K.  B.     Ante,  472,  3  ;  563. 

(6)   1  Bos.  &  Pul.  415. 

(c)  R.  E.  18  Car.  II.  K.  B. ;  and  see  6  Durnf.  k  East.  496.     2  Chit.  Rep.  319. 

(dd)  Pr.  Reg.  282.     3  Bos.  k  Pul.  171.     3  Tauut.  386.     2  Moore,  220. 

(ee)  Ante,  513. 


567  0^  JUDGMENT  BY  DEFAULT. 

filed  and  notice  thereof  given  to  the  defendant  ;(^)  or  when  it  is  signed 
before  the  defendant's  appearance,  or  without  entering  a  rule  to  plead,  or 
demanding  a  plea,  when  necessary ;  or  before  the  time  for  pleading  is  expired ; 
or  after  a  plea  has  been  regularly  delivered,  or  filed. (^^)  So,  when  the 
plaintiff  declares  absolutely,  before  the  defendant  has  appeared,  he  cannot 
sign  judgment,  after  plea,  for  want  of  his  appearance  :(/i)  And  a  judgment 
signed  contrary  to  good  faith  may  be  set  aside. (z)  But  if  a  defendant 
accept  a  declaration,  and  act  as  if  an  appearance  had  been  entered  for  him, 
the  court  will  not  afterwards  permit  him  to  set  aside  a  judgment,  on  the 
ground  of  his  not  having  appeared.  (^)  And  an  irregular  judgment  cannot 
be  set  aside,  after  the  defendant  has  given  a  cognovit  ;{l)  or  attended  and 
cross-examined  the  witnesses,  on  the  execution  of  a  writ  of  inquiry.(m) 

The  plaintiff  may  waive  a  judgment  by  default  ;(w)  or,  if  irregular^  the 
defendant  may  move  the  court  to  set  it  aside.  But  the  motion  for  this  pur- 
pose must  be  made  in  term  time,  or  notice  given  of  it  in  vacation,  tiuo  days 
at  least  before  the  day  appointed  for  executing  the  inquiry,  (o)  And  in  the 
Common  Pleas,  it  is  said  there  can  be  no  motion  to  set  aside  a  judgment  the 
last  day  of  term,  unless  it  appear  that  the  defendant  could  not  have  applied 
sooner.(p)  Ifthe  judgment  be  regular,  yet  when  the  plaintifi'has  not  lost 
a  trial,  the  courts  on  motion  will  set  it  aside,  upon  an  affidavit  of  merits ; 
the  defendant  undertaking  to  pay  the  costs, (^)  to  plead  issuably  instanter,{r) 
take  short  notice  of  trial,(.S')  and  give  judgment  of  the  term  when  necessary, 

so  as  to  put  the  plaintiff  in  the  same  situation  as  if  *the  judgment  had 
[*568]  had  not  been  set  aside.(a)    But  the  courts  will  not  set  aside  a  regular 

judgment,  to  give  the  defendant  advantage  of  a  nicety  in  pleading  ;(6) 
or  to  let  him  in  to  plead  any  matter  which  does  not  go  to  the  merits  of 
the  cause.  (c)[a]  So,  where  a  defendant,  having  a  good  legal  defence,  had 
ruefsed  equitable  terms  of  compromise,  the  coui't  of  Common  Pleas  would 
not  set  aside  the  judgment,  and  permit  him  to  plead.(c?)  But  the  statute 
of  limitations  is  considered  as  a  plea  to  the  merits  :(e)  and  in  the  latter 
court,  the  defendant  has  been  allowed  to  plead  his  bankruptcy, (/)  or  infan- 
cy. (^)    In  the  King's  Bench,  the  affidavit  of  merits  must  appear  to  have  been 

iff)  4  Taunt.  818.  {gg)  Id.  545. 

{h)  Per  Cur.  M.  44  Geo.  III.  K.  B.  (j)  13  Price,  489. 

{k)   1  New  Rep.  C.  P.  309. 

{I)  V  Durnf.  &  East,  206.     Ante,  242,  562.  {in)  4  Taunt.  545. 

{n)  T.  23  Car.  I.  K.  B.     Cas.  Pr.  C.  P.  124.     Pr.  Reg.  294.     Barnes,  251,  S.  C. 

(o)  Ante,  513.  {p)  Cas.  Pr.  C.  P.  130.     Ante,  499. 

{q)   1  Salk.  402.     2  Salk.  518.     Barnes,  242.     1  Chit.  Rep.  226,  232. 

(r)  Instanter,  it  has  been  said,  means  within  twenty-four  hours.  Pryce  v.  Hodgson,  E. 
25  Geo.  III.  K.  B. ;  and  see  1  Taunt.  343.  Scd  qucere,  by  whom  this  account  of  hours  is  to 
be  kept ;  and  whether  instanter,  as  applied  to  the  subject-matter,  may  not  more  properlj^  be 
taken  to  mean,  "before  the  rising  of  the  court,"  when  the  act  is  to  be  done  in  court;  or 
"before  the  shutting  of  the  office  on  the  same  night,"  when  the  act  is  to  be  done  there?  6 
East,  587,  (h). 

{s)  Barnes,  242.     1  Chit.  Rep.  226,  232. 

(a)  2  Str.  823,  975.  1  Ken.  343.  1  Bur.  568.  2  Ken.  290,  S.  C.  Per  Cur.  T.  24  Geo. 
III.  K.  B. 

(b)  2  Str.  1242. 

(c)  1  Blac.  Rep.  35.     Stafford  v.  Rowntree,  E.  24  Geo.  III.  K.  B. 
{d)  4  Taunt.  885. 

(e)  2  Durnf.  &  East,  390.  Mackenzie  v.  Higgins,  H.  22  Geo.  III.  K.  B.  1  Bos.  &  Pul.  228. 
Ante,  471. 

(/)   1  Bos.  &  Pul.  52.  (g)  5  Taunt.  856.     1  Marsh.  391,  S.  C. 

[a]  See  ante,  p.  562,  note  [a]. 


OF  JUDGMENT  BY  DEFAULT.  5G8 

made  by  the  defendant,  or  his  attorney  or  ardent  :(/j^)  And  an  affidavit,  that 
the  defendant  is  advised  and  helives  he  lias  a  good  defence  to  the  action, 
will  not  satisfy  the  condition  of  a  rule  which  reijuires  him  to  swear  to  a 
good  defence  "on  the  merits. "(t;']  In  general,  the  affidavit  is  made  by 
the  defendant's  attorney  \{k/c)  and,  in  the  Coinniun  IMeas,  if  it  l>e  made  by 
any  otiier  person  than  the  defendant,  he  must  swear  either  that  he  is  the  defend- 
ant's attorney,  or  managing  clerk  to  the  defendant's  attorney. (/)  On  setting 
aside  a  judgment  and  execution  for  irregularity,  the  court  of  King's  Bench 
will  restrain  the  defendant  from  bringing  an  action  of  trespasSy  unless 
a  strong  case  for  damages  be  shown. (?«) 

A  judgment  by  default  is  intfrhcutori/  or  final.  AVhen  the  action  sounds 
in  danuiges,  as  in  af(Sti»n>,H(t,  covenant^  trover,  tratjtaHx,  &c.,  the  judgment 
is  only  interlocutory,  [a] ''  that  the  plaintiff  ought  to  recover  his  damages," 
leaving  the  amount  of  them  to  be  afterwards  ascertained  :(//)  And  the  j'ldg- 
ment  for  the  plaintiff,  in  these  actions,  is  also  interlocutory,  on  demurrer, 
or  nul  tiel  record.  In  debt,  the  judgment  is  commonly  final ;{o)  though  a 
writ  of  inquiry  is  sometimes  necessary,  or  may  be  sued  out,  for  assessing 
them.(^>)  In  the  King's  Bench,  the  judgment,  whether  interhtcutory  or 
final,  is  signed  on  a  ])aper,  called  a  judgment  pa])er,  with  the  clerk  of  the 
judgments  ;  an  incipitur  being  first  entered  on  a  roll,  of  the  term  it  is  signed  : 
In  the  Common  Pleas,  it  is  signed  on  a  judgment  paper,  by  the  prothono- 
taries  ;  warrants  of  attorney  being  first  written  on  parchment,  and  filed  with 
the  clerk  of  the  warrants.  And,  on  a  final  judgment  in  both  comets,  no 
rule  for  judgment  being  necessary,  the  plaintiff  may  in  general  proceed 
immediately  to  tax  his  costs,  and  take  out  execution. 

Formerly,  it  appears,  no  judgments,  either  by  non  siaa  informatus  or 
nihil  dicit,  could  have  been  entered  of  record  in  the  Common  Pleas,  with- 
out the  notice  and  commandment  of  the  judges ;  nor  any  costs  of 
suit  *given  upon  any  of  the  said  judgments,  before  the  costs  were  [  *569  j 
taxed  and  allowed  by  some  of  the  judges  of  this  court.  Aftcr- 
Avards,  the  prothonotaries  were  deputed  and  appointed  by  the  court,  to  take 
order  for  the  entering  of  all  such  judgments,  before  they  were  entered  of 
record ;  and  a  rule  was  made,  for  preventing  abuses,  that  "  no  clerk  or 
attorney  should  enter  of  record  any  of  the  said  judgment,  or  set  down  any 
costs  of  suit  thereon,  before  the  said  costs  were  rated  and  allowed  by  one 
of  the  judges  of  this  court,  or  by  the  prothonotary  in  whose  office  the  same 
should  be  entered  of  record,  and  Avarrant  given  by  him,  under  his  hand, 
for  the  entering  of  the  said  judgTuent  :"(a)  And,  by  a  subse<pient  rule,  "  the 
prothonotaries  shall  not  sign  any  judgment  by  confession,  either  by  non 
sum  informatus  or  nihil  dicit,  unless  the  same  be  brought  to  be  signed 
within  twenty  days  after  the  end  of  Trinity,  Michaehnan,  or  Hilary  term, 
and  at  or  before  the  first  day  of  Trinity  term,  in  every  year;  unless  the 
attorney  or  clerk  do  produce  before  them  a  warrant  or  warrants  of  attor- 
ney, bearing  date  after  the  end  of  such  term,  and  then  the  judgments  on 
such  warrants  so  produced,  may  be  signed  at  or  before  the  essoin  day  of 

{hh)  1  Chit.  Rep.  97.  (iV)   1  Dowl.  k  Rvl.  155;  but  sec  13  Price,  260. 

{kk)  P,r  Cur.  H.  37  Goo.  III.  K.  B.  (/)'3  Tiiunt.  403. 

(m)   1  Chit.  Rup.  134;  and  see  id.  238.  (n)  Append.  Chap.  XXII.  \  34,  &c. 

(o)  /</.  §  71,  &c.  \p)  Post,  573. 

(a)  R.  E.  11  Jac.  I.  C.  P. 

[a]  See  Smith  v.  Vandcrherat,  1  McCord,  328. 


569  0*"  JUDGMENT  BY  DEFAULT. 

the  succeecHno;  term  in  every  year,  and  not  after  :"(5)  But,  notwithstand- 
ing this  rule,  judgments  are  now  signed  at  any  time  in  the  vacation. (c)  It 
is  also  a  rule  in  the  Common  Pleas,  that  "  no  judgment  whatever,  except 
final  judgments  upon  posteas  and  writs  of  inquiry  and  non  prosses,  shall  be 
signed  by  any  of  the  prothonotarics  of  this  court,  unless  the  stamp  of  the 
clerk  of  the  warrants  be  first  impressed  on  the  paper  whereon  such  judg- 
ment is  to  be  signed,  Avhereby  it  may  appear  that  warrants  of  attorney  are 
duly  filed :" ((7)  And  accordingly,  the  practice  in  that  court,  on  signing 
judgment  by  default,  &c.,  is  to  file  the  warrants  of  attorney  on  unstamped 
parchment,  with  the  clerk  of  the  warrants,  who  marks  the  judgment  paper, 
before  judgment  is  signed  thereon  by  the  prothonotaries. 

In  the  King's  Bench  by  bill,  or  in  the  Common  Pleas,  judgments  by  de- 
fault are  entered  on  a  roll  of  the  term  of  which  they  are  signed ;  but,  in 
the  King's  Bench  by  original,  they  are  entered  of  the  term  of  the  declara- 
tion :  and,  in  the  latter  court,  the  entry  is  the  same,  whether  the  judgment 
be  for  want  of  a  plea,  or  for  not  rejoining,  surrebutting,  or  joining  in  de- 
murrer, or  for  not  returning  the  paper  book ;  but,  in  the  Common  Pleas, 
where  the  pleadings  are  supposed  to  be  entered  of  record  as  they  are  pleaded, 
the  judgment  roll  states  the  previous  proceedings,  and  the  particular  default 
upon  which  the  judgment  is  given.  In  the  King's  Bench,  the  entries  are 
made  by  the  plaintiff's  attorney ;  in  the  Common  Pleas,  by  the  clerk  of 
the  judgments,  with  whom  the  writ  of  inquiry  is  left  for  that  purpose  ;(e) 
and  there  is  no  necessity,  in  that  court,  for  a  subsequent  continuance 
between  the  parties,  after  judgment  by  default,  and  writ  of  inquiry 
awarded :(/)  but,  in  the  King's  Bench,  it  is  said  to  be  otherwise. 
[  *570  ]  *By  the  late  bankrupt  act,(a)  it  is  provided,  that  "  no  credi- 
tor, though  for  a  valuable  consideration,  who  shall  sue  out  execu- 
tion upon  any  judgment  obtained  by  default,  confession,  or  nil  dicit,  shall 
avail  himself  of  such  execution,  to  the  prejudice  of  other  fair  creditors,  but 
shall  be  paid  rateable  with  such  creditors."  On  this  statute,  the  court  of 
King's  Bench  would  not  set  aside  an  execution  issued  upon  a  judgment 
obtained  by  nil  elicit,  and  served  and  levied  by  seizure  upon  the  property 
of  a  bankrupt,  before  his  bankruptcy ;  the  statute  not  rendering  the  exe- 
cution in  such  case  void,  but  merely  enacting,  that  the  plaintiff  in  such 
execution  shall  be  paid  rateably  with  the  other  creditors. (6i)  And  where 
A.  having  a  debt  from  B.  secured  by  warrant  of  attorney,  entered  up 
judgment  by  non  sum  informatus,  issued  a.  fieri  facias,  and  took  from  the 
sheriff  a  bill  of  sale  of  the  goods  seized,  and  B.  having  soon  afterwards  be- 
come bankrupt,  his  assignees  took  possession  of  and  sold  the  goods  so 
transferred  to  A.  who  brought  an  action  of  trover  for  them  ;  the  court  held, 
that  he  was  not  a  creditor  having  security  for  his  debt,  within  the  above 
statute,  and  that  he  was  entitled  to  recover,  6  Barn.  &  Cres.  479. 


After  interlocutory  judgment,  the  amount  of  the  damages  sustained  by  the 

(o)  R.  T.  29  Car.  11  reg.  5,  0.  P. 
(c)  Id.  (a). 

{d)  R.  M.  5  Geo.  II.  C.  P.;  and  see  R.  H.  14  &  15  Car.  II.  reg.  2.     R.  H.  2  &  3  Jac.  II.  C. 
P.     Ante,  96. 

(e)  R.  T.  13  Geo.  II.  reff.  2,  C.  P. 

(/)  11  Co.  6,  b.     Yelv.  91.     1  Rol.  Abr.  48G.  (a)  6  Geo.  IV.  c.  16,  §  108. 

(bb)  5  Barn.  &  Cres.  392.     8  Dowl.  &  Rjl.  159,  S.  C. 


OF  THE  ASSESSMENT  OF  DAMAGES,  ETC.  570 

plaintifFis  ascertained,  cither  by  reference  to  the  master  in  tlic  King's  Bench, 
or  prothonotaries  in  tlie  Common  Pleas,  or  by  writ  of  inquiry.  In  general,  a 
writ  of  inquiry  is  awarded  :  but  this  is  a  mere  inquest  of  office,  to  inform  the 
conscience  of  the  court;  wlio,  if  they  please,  may  tiiemselves  assess  the  damages 
with  the  assent  of  the  pl;iintitV,(^')  (tr  direct  them  to  be  assessed  by  the  pro- 
per officer.  And  it  is  accordingly  the  practice,  in  actions  upon  bills  of  ex- 
change and  promissory  notes,  instead  of  executing  a  writ  of  incjuiry,  to 
apply  to  the  court  in  term  time,((/)  on  an  affidavit(<')  of  the  nature  of  the 
action,  &c.,  for  a  rule  to  show  cause, (/)  why  it  should  not  be  referred  to 
the  master  in  the  King's  Bench,  or  prothonotaries  in  the  Common  lMe:is,(f/) 
to  see  what  is  due  for  principal  and  interest,  and  to  tax  the  j)laiiitifl'  his 
costs,  atul  Avhy  final  judgment  should  not  be  signed  for  that  sum,  withotit 
executing  a  writ  of  iiMiuiry  ;  upon  which  the  court  will  make  the  rule  ab- 
8olute,(/t)  on  an  affidavit  of  service,  unless  good  cause  be  shown  to  the 
contrary :(«')  In  tiacation,  a  judge  on  summons,  and  the  signature  of  coun- 
sel, will  grant  his  Jiat,{k)  for  drawing  up  the  rulc.(/)  And  a  similar  rule 
or  order  may  be  obtained,  in  actions  on  covenants  for  the  payment  of  a 
sum  certain, (/«)  as  upon  a  mortgage,(n)  or  for  rent,(o)  or  arrears 
of  an  *annuity,(a)  &c. ;  or  an  awar(l.(?>)  So,  where  there  Avas  a  [  *571  ] 
denmrrer  to  one  count  on  a  bill  of  exchange,  and  judgment  for 
the  plaintiff,  and  a  plea  to  other  counts  on  which  issue  was  joined,  the 
court  of  King's  Bench  referred  it  to  the  master,  to  see  what  was  due  to 
the  plaintiff  on  the  former.((7)  In  such  case,  however,  a  nolle  prosequi 
must  be  entered  on  the  other  counts. (f?(Z)  But  this  entry  need  not  be 
made  before  the  reference  to  the  master :  It  is  sufficient,  if  done  at  any 
time  before  final  judgment. (ec) 

In  the  King's  Bench,  where  interlocutory  judgment  was  signed,  and  the 
plaintiff  died  on  a  subsequent  day  in  the  term,  the  court  granted  a  rule  to 
compute  principal  and  interest  on  the  bill  on  which  the  action  was 
brought  'iff)  and  a  similar  rule  Avas  made  absolute,  on  producing  a  copy 
of  the  bill,  verified  by  affidavit  of  the  plaintiff's  attorney;  the  original 
having  been  stolen  out  of  his  pocket,  and  no  tidings  of  it  obtained. (.7//) 
In  the  Exchequer,  it  was  not  formerly  usual  to  refer  the  question  of  da- 
mages to  the  master,  in  actions  upon  bills  of  exchange,  &c.  ;{hh)  but  this 

(r)  2  Wms.  Saund.  5  Ed.  107,  (2).  2  Wils.  372,  374.  3  Wils.  Gl,  2  Doug.  31 G.  Watson 
V.  Predion,  E.  25  Uoo.  III.  C.  P.  1  H.  Blac.  252,  529,  542.  4  Duruf.  k  Kiist,  275.  7  Durnf. 
&  East,  44G,  7.  4  Taunt.  148,  9.  1  Chit.  Rep.  G21,  n.  And  in  confirmation  of  this  doc- 
trine, it  may  be  observed,  that  the  courts  have  tlic  power  of  setting  aside  inf|uisitioiis  for 
small  or  e.\-cessive  damages;  and  in  some  cases  of  increasing  them.  Say.  Dam.  173,  &c. 
and  see  1  Rol.  Abr.  572.     Com.  Dig.  tit.  Damages,  E.  1,  2. 

Id)  Per  Cur.  T.  25  Geo.  III.  K.  B.  (c)  Append.  Chap.  XXII.  g  30. 

(/)  /(/.  §  31.  [g)   1  H.  Blac.  541. 

(A)  Append.  Chap.  XXII.  ^  32.     1  Chit.  Rep.  4Gn,  {b). 

\i)  4  Durnf.  &  Ea.st,  275;  and  see  1  H.  Blac.  252,  520,  541.  2  Bos.  &  Pnl.  55.  And  for 
the  form  of  the  judgment  upon  this  rule,  see  Append.  Chap.  XXII.  g  34,  5,  G.     Chap.  XXXI. 

{k)  Append.  Chap.  XXII.  g  33. 

(/)   2  Smith  R.  4G,  7,  in  noti.i.  (m)  Doug.  316. 
(n)   8  Durnf.  &  East,  32G  ;  and  .see  2  Chit.  Rep.  234,  .5;   2G5,  (</). 

(0)  8  Durnf.  &  East,  410.  6  Taunt.  35G.  13  Price,  53 ;  but  see  14  East,  G22.  G  Moore, 
331. 

(a)  2  Chit.  Rep.  32.  (b)  Per  Cur.,  in  Meggison  ^ ,  K.  B. 

\cc)  7  Durnf.  k  East,  473.  {dd)  2  Smith  R.  4G,  47,  in  notis. 

(ee)  Per  Cur.  II.  48  Geo.  III.  K.  B.  (/)   1  Maule  &  Sel.  229. 

(gg)  3  Maule  &  Sel.  281  ;  and  see  2  Chit.  Rep.  233,  (a). 
{hh)  1  Austr.  249. 


671 


OF  THE  ASSESSMENT  OF  DAMAGES,  ETC. 


practice  has  since  been  adopted,  and  put  upon  the  same  footing  as  in  the 
other  courts.(») 

The  practice  we  are  now  speaking  of  is  confined  to  cases,  where  it  ap- 
pears on  the  declaration,  that  the  action  is  brought  upon  bills  of  exchange 
or  promissory  notes,[kk)  or  other  actions  wherein  the  quantum  of  damages 
depends  on  figures,  and  may  be  as  well  ascertained  by  the  master  or  pro- 
thonotarics,  as  before  a  jury :  And  therefore,  where  the  defendant  had 
suflerod  judgment  by  default,  in  an  action  of  assumpsit  on  a  foreign  judg- 
ment, the  court  of  King's  Bench  refused  to  make  the  rule  absolute,  for  a 
reference  to  the  master ;  saying,  this  was  an  attempt  to  carry  the  rule 
further  than  had  yet  been  done ;  and  as  there  was  no  instance  of  the 
kind,  they  would  not  make  a  precedent  for  it.(ll)  In  a  subsequent 
case,(?n?«)  the  court  refused  to  make  the  rule  absolute,  in  an  action  upon 
a  bill  of  exchange  ior  foreign  money  ;  the  value  of  which  is  uncertain,  and 
can  only  be  ascertained  by  a  jury  :(h)  and,  in  another  case,(o)  they  would 
not  direct  the  master  to  allow  re-exchayige,  in  an  action  upon  a  bill  of  ex- 
change drawn  in  Scotland,  upon  and  accepted  by  the  defendant  in  I^ng- 
land.  It  should  also  be  observed,  that  such  a  rule  cannot  be  had  in  as- 
su7}ipsit  for  a  certain  sum,  due  upon  an  agreement  ;[p)  nor  in  an  action 
upon  a  bottomree  bond  ;[q)  or  to  ascertain  the  damages  sustained  by  the 

plaintifl",  in  an  action  of  debt  on  a  judgment  recovered  on  a  bill 
[  *572  ]   of  exchange  :(r)  And  in  covenant  *on  a  deed,  whereby  the  plain- 

tifis  covenanted  to  indemnify  the  Bank  of  England  against  ad- 
vances to  L.  and  B.  on  bills  to  the  amount  of  100,000?.  and  the  defendant 
and  others  agreed  to  sub-indemnify  the  plaintiff's  to  the  same  amount,  in 
certain  aliquot  proportions,  of  which  the  defendant's  proportion  was  5000/., 
and  the  plaintiffs  alleged  that  they  had  been  obliged  to  pay  the  whole 
100,000/.  to  the  Bank,  and  demanded  of  the  defendant  his  proportion  of 
5000/.,  in  which  action  the  plaintifis  had  judgment  on  demurrer  ;  the  court 
of  King's  Bench  refused  to  refer  it  to  the  master,  to  compute  the  principal 
and  interest  due  on  the  deed,  considering  that  it  was  not  a  mere  question 
of  computation  of  principal  and  interest,  but  that  it  was  open  to  the  de- 
fendant, before  the  sheriff's  jury,  to  enter  into  questions  of  collateral  satis- 
faction of  the  plaintiff's  demand,  from  securities  and  effects  of  L.  and  B. 
the  principals,  in  their  hands. (a)[A] 

The  plaintiff,  in  the  King's  Bench,  may  obtain  a  rule  for  referring  a  bill 
of  exchange  to  the  master,  on  the  day  on  which  interlocutory  judgment  is 
signed  for  want  of  a  plea,(/»)  or  for  not  producing  the  record  ;(c)  but  where 


{i 


(it)  4  Price,  134.    Chitty  on  Bills,  5  Ed.  474. 

(kk)  8  Durnf.  &  East,  648. 

(U)  4  Durnf.  &  East,  493;  and  see  1  Maule  &  Sel.  173.  4  Campb.  380.  1  Stark.  Ni. 
Pri.  219,  S.  C,  by  which  it  appears,  that  the  plaintiff  is  not  entitled  to  interest  on  a  foreign 
judgment. 

{mm)  5  Durnf.  &  East,  87. 

(7?)  Cro  Eliz.  536.     Cro.  Jac.  618.     1  Chit.  Rep.  621.  627. 

(o)   12  East,  420.  (p)  Per  Cur.  H.  37  Geo.  III.  K.  B. 

Iq)  PuUn  V.  Nicholson,  E.  38  Geo.  III.  K.  B. 

ir)  8  Durnf  &  East,  395.     2  Chit.  Rep.  233. 

\a\   14  East,  C22  ;  and  see  2  Barn.  &  Cres.  348.     3  Dowl.  &  Ryl.  613,  S.  C. 

(6)  3  Maule  &  Sel.  109.  (c)  5  Barn.  &  Aid.  752.     1  Dowl.  &  Ryl.  444,  S.  C. 

[a]  So  a  mistake  in  a  writ  of  inquiry  of  the  formal  description  of  the  court,  before 
■which  it  is  returned,  is  cured  by  the  statute  of  jeofails.  Richardson  v.  Backus,  1  Johns.  59. 
The  appearance  of  the  defendant  on  the  execution  of  the  writ  cures  irregularities  in  pre- 
vious proceedings  unobjected  to.      White  v.  Rankcn,  2  Blackf.  78. 


OF  THE  WRIT  OP  INQUIRY.  572 

it  is  signed  upon  demurrer,  it  has  been  the  practice  not  to  move  for  such 
rule  until  the  following  day  :{d)  And,  in  that  court,  the  rule  absolute  for 
computing  principal  and  interest  on  a  bill  of  exchange,  must  be  served  on 
the  defendant,  before  final  judgment  can  be  signed,  as  well  as  the  rule 
nisi  ;{(')  and  in  serving  the  latter  rule,  where  there  are  two  defendants,  the 
service  should  be  on  both  ;(y')  but  it  is  suflicient  to  serve  a  copy  of  the  rule, 
without  showing  the  original. (/)  It  has  also  Ijeen  decided,  in  the  King's 
Bench,  that  the  plaintiiFs  attorney  is  not  bound  to  serve  the  defendant 
with  notice  of  computing  principal  and  interest,  on  a  rule  or  order  of  re- 
ference,(_r/)  or  a  copy  of  the  master's  appointment  for  that  purpose, (/<)  un- 
less the  defendant  has  obtained  and  served  him  with  a  rule  to  be  present 
at  the  taxation  ;(/)  the  defendant  having  notice  of  the  proeeeding,  bv  ser- 
vice of  the  rule  nisi,  so  as  to  be  present  if  he  pleases.  But,  in  the  Com- 
mon Pleas,  notice  must  be  given  to  the  defendant,  of  the  prothonotary's 
appointment  to  compute  principal  and  interest  on  a  bill  of  exchange  :{k) 
The  reason  is  said  to  be,  that  this  proceeding  of  a  reference  to  the  protho- 
notary  is  substituted  for  a  writ  of  inquiry ;  and  as  it  is  necessary  for  the 
plaintiff  to  give  notice  to  the  defendant  of  the  execution  of  such  writ,  so 
he  nnist  give  him  notice  of  the  prothonotary's  appointment  to  compute 
principal  and  interest,  in  order  that  he  may  have  an  opportunity  of  bring- 
ing forward  any  facts  which  may  have  occurred,  to  reduce  the 
sum  which  the  plaintiff  seeks  to  *recover.(a)  And  where  judg-  [  *573  ] 
ment  has  gone  by  default  on  a  promissory  note,  no  irregularity 
previous  to  the  judgment  can  be  shown  as  cause  against  referring  the  note 
to  the  master  or  prothonotary.(6) 


A  writ  of  inquiry  of  damages  is  a  judicial  writ,  issuing  out  of  the  court 
where  the  action  is  brought ;  and  must  be  sued  out,  after  interlocutory 
judgment,  in  all  actions  wherein  damages  are  recoverable,  as  in  asmnnpsitj 
covenant,  case,  tresjMSS,  &c.,  except  where  they  are  referred  to  the  master 
or  prothonotaries,  on  bills  of  exchange  or  promissory  notes,  &c.,  or  are 
confessed  by  the  defendant.  After  ^';ioZ  judgment,  a  writ  of  incpiiry  is  in 
general  unnecessary  ;  and  the  court  of  King's  Bench  would  not  direct  such 
a  writ  to  be  executed,  at  the  instance  of  the  defendant,  after  judgment  by 
default  in  an  action  of  debt.  But  where  an  action  is  brought  on  a  judg- 
ment, the  plaintiff  may  have  a  writ  of  inquiry,  after  judgment  by  default, 
to  recover  interest,  by  way  of  damages,  for  the  detention  of  the  debt.(^c') 

(d)  3  Maule  &  Sel.  100 ;  and  see  3  Smith  R.  179. 

(e)  1  Chit.  Rep.  4G6,  468. 

(/)  Flindl  V.  BigufU  S;  another,  .M.  56  Geo.  III.  K.  R.      1  Chit.  Rep.  4«6,  (a). 

((/)  Sellers  v.  Tiifton,  H.  54  Geo.  III.  K.  D.  Imp.  K.  B.  10  VA.  410.  The  same  point  vras 
ruled  by  Bai/lejj,  J.,  in  H.  5(5  Geo.  III.  K.  R.  1  Chit.  Rep.  407,  i;i  nnlin ;  and  see  tiie  casca 
of  Clark  V.  Wood,  and  Farmer  v.   Wood,  E.  50  Geo.  III.  K.  H.     Id.  406  (a),  accord. 

(h)   1  Chit.  Rep.  469,  70;  G93. 


(i)  Id.  6!)3.  (k)  4  Taunt  487. 

Uj)  4  Taunt.  487.  {h)   1  Bos.  &  rul.  309.     2  Chit.  Rep.  119. 

(p)  7  Durnf.  &  East,  440  ;  and  .=;ee  2  Durnf.  &  East,  78.  9.  8  Durnf.  k  Ea.st.  395.  1  East, 
436.  1  Maule  k  Sel.  171.  1  Chit.  Rep.  473,  027.  2  Chit.  Rep.  233.  1  Dowl.  &  Ryl.  16. 
1  Bing.  368.  But  tlie  plaintiff  is  not  entitled  to  interest  on  a  forrirjn  judgment  ;  1  Maule  «k 
Sel.  173.  4  Campb.  380.  1  Stark.  Ni.  I'ri.  219,  S.  C. ;  butseel  Ea.«t.  430,  snnh.  contra. 
And  it  seems  to  be  a  rule,  in  other  cases,  that  interest  on  the  judgment  is  allowed  only 
where  the  original  debt  carried  intere.st.  3  Price,  250  ;  and  sec  8  Moore,  413.  1  Bing.  308, 
S.  C.  cited. 


i73 


OF  THE  WRIT  OF  INQUIRY. 


And  in  actions  upon  bonds,  or  on  any  penal  sum,  for  nonperformance  of 
covenants,  &c.,  a  writ  of  inquiry  is  necessary,  for  assessing  the  damages, 
after  judgment  for  the  plaintiff  on  demurrer,  or  by  confession  or  nihil 
dicit,  by  the  statute  8  &  9  W.  III.  c.  11,  §  8.  In  actions  on  the  statute 
2  &  3  Edw.  VI.  c.  13,  for  not  setting  out  tithes,  there  must  also  be  a  writ 
of  incjuiry,  after  judgment  by  default,  to  ascertain  the  value  of  the  tithes. (i^) 
So,  in  an  action  of  debt  for  foreign  money,  a  jury  must  find  the  value  of 
the  money  :{d)  And  it  seems,  that  in  debt  for  use  and  occupation,  a  writ 
of  inquiry  is  necessary,  after  judgment  by  default,  before  signing  final 
judgment.  ((^) 

The  writ  of  inquiry  is  directed  to  the  sheriff  of  the  county  where  the 
venue  is  laid  \{e)  setting  forth  the  proceedings  which  have  been  had  in  the 
cause ;  "  and  that  the  phiintiff  ought  to  recover  his  damages,  by  occasion 
of  the  premises :  But  because  it  is  unknown  what  damages  he  hath  sus- 
tained by  occasion  thereof,  the  sheriff  is  commanded,  that  by  the  oath  of 
twelve  honest  and  lawful  men  of  his  county,  he  diligently  inquire  the  same ; 
and  return  the  inquisition  into  court. "(/)  It  was  formerly  doubted, 
whether  a  writ  of  inquiry  could  be  directed  to  the  sheriff  of  a  Welch 

county  \{g)  but  it  is  now  settled  that  it  may.(A)  In  an  action  on 
[  *574  ]  the  *case  upon  two  promises,  there  was  a  judgment  by  default 

as  to  the  first  promise,  and  as  to  the  second,  a  nolle  jyrosequi: 
A  writ  of  inquiry  was  taken  out,  to  inquire  what  damages  the  plaintiff  had 
sustained,  br/  occasion  of  the  premises  ;  and  upon  the  return  of  this,  it  was 
moved  to  amend  the  writ,  and  make  it,  by  occasion  of  the  not  performing 
of  the  frst  promise  :  and  upon  the  authority  of  Baker  v.  Campbell,(a)  the 
writ  was  amended  in  this  case ;  the  record  of  the  judgment  by  default 
being  a  warrant  to  amend  by.(6)  So,  if  the  award  of  the  writ  of  inquiry 
on  the  roll  be  right,  the  teste  of  the  writ,  if  wrong,  may  be  amended 

The  Avrit  of  inquiry  is  engrossed  on  parchment ;  and,  in  the  King's 
Bench,  it  is  sealed  only ;  but,  in  the  Common  Pleas,  it  is  signed  by  the 
prothonotaries,  and  afterwards  sealed.  And  it  should  be  returnable  on  a 
general  return  or  day  certain,  according  to  the  nature  of  the  proceedings : 
if  by  original,  on  a  general  return ;  if  by  bill,  on  a  day  certain.  But 
w^here,  in  an  action  by  bill  against  an  attorney,  the  writ  of  inquiry  was 
returnable  on  a  general  return,  it  was  holden  not  to  be  error ;  but  only  a 
miscontinuance,  and  cured  by  the  statutes  of  jeofails.  (c?cZ) 

When  the  jury,  upon  the  trial  of  an  issue,  omit  to  assess  the  damages, 
the  omission  may  in  some  cases  be  supplied  by  a  writ  of  inquiry  -.{ee)  As  to 
which  it  seems,  that  where  the  matter  omitted  to  be  inquired  by  the  prin- 
cipal jury,  is  such  as  goes  to  the  very  point  of  the  issue,  and  upon  which, 
if  it  had  been  found  by  the  jury,  an  attaint  would  have  lain  against  them 
by  the  party,  if  they  had  given  a  false  verdict,  there  such  matter  cannot 
be  supplied  by  a  writ  of  inquiry ;  because  thereby  the  party  might  have 

{d)  5  Barn.  &  Aid.  885.     1  Dowl.  &  Ryl.  529,  S.  C. ;  and  see  1  Chit.  Rep.  627. 
(e)  2  Lil.  P.  R.  721.  (/)  Append.  Chap.  XXII.  |  47,  &c. 

{g)  Doug.  262,  3.  Lord  Mansfield  and  BuUer,  J.,  thought  it  might  be  directed  to  the 
sheriff  of  the  next  English  county. 

{h)    Williams  v.  Williams,  T.  26  Geo.  III.  K.  B.  (a)  E.  4  Ann.  K.  B. 

(b)  1  Str.  684  ;  and  see  Cas.  temp.  Hardw.  314. 

(c)  4  East,  173  ;  and  see  1  Dowl.  &  Ryl.  26G,  211,  per  Bayley,  J. 
{dd)  2  Str.  947.     Say.  Rep.  245. 

(ee)   Cheyney's  case,  10  Co.  118. 


OF  THE  WRIT  OP  INQUIRY.  574 

lost  his  attaint,  ■which  would  not  lie  upon  an  inquest  of  office. (/)  Thus, 
in  detinue,  where  the  jury  omitted  to  assess  the  value  of  the  goods,  the 
court  refused  to  supply  the  omission  by  a  writ  of  in(juiry.(</)  And  so 
where  the  jury  who  try  the  issue  in  replevin  upon  a  distress  f<jr  rent,  omit 
to  inquire  of  the  rent  in  arrear,  and  value  of  the  iroods  or  cattle  distrained, 
pursuant  to  the  statute  17  Car.  II.  c.  7,  no  writ  of  imjuiry  can  be  after- 
wards awarded,  to  supply  the  omission  ',(h^  for,  by  the  words  of  the  statute, 
these  matters  are  to  be  inquired  of  by  the  same  jury  who  try  the  issue. (i) 
And  in  like  manner,  where  no  damages  are  given  on  trying  the  traverse  of 
the  return  to  a  writ  of  inandanius,  this  omission  cannot  be  supj)li('d  by  a 
writ  of  in([uiry.(A:)  So,  where,  in  an  action  for  a  liiiel,  tlie  defendant 
pleaded  the  general  issue,  and  i'l(//it  sj)ecial  pleas  of  justification  ;  and  the 
jury,  at  the  trial,  found  a  verdict  for  the  plaintiff  on  the  general 
issue,  and  two  of  *the  special  pleas,  without  assessing  damages,  [  *575  ] 
and  for  the  defendant  on  the  other  pleas ;  and  the  court,  on 
motion  to  enter  up  judgment  for  the  plaintiff  non  obstante  veredicto,  decided 
that  the  latter  pleas  were  ill,  and  awarded  a  writ  of  inquiry  to  assess  the 
damages,  and  final  judgment  was  entered  thereon,  in  the  King's  Bench  ;(aa) 
the  court  of  Exchequer  Chamber,  on  a  writ  of  error,  reversed  the  judgment 
as  to  the  award  of  the  writ  of  inquiry,  and  final  judgment  thereon,  and 
remitted  the  record  to  the  court  of  King's  Bench,  with  a  direction  for  that 
court  to  award  a  venire  de  novo,  to  try  the  general  issue,  and  issue  joined 
on  the  two  special  pleas  on  which  the  finding  was  for  the  plaintiff;  holding 
the  verdict  on  these  issues  to  be  void,  because  no  damages  had  been 
a,ssessed  :(b)  And  a  venire  de  novo  was  awarded,  when  the  jury,  in  an 
action  of  waste,  had  omitted  to  find  the  place  wasted.(t') 

But  where  the  matter  omitted  to  be  inquired  by  the  principal  jury,  doth 
not  go  to  the  point  in  issue,  or  necessary  conse(iuence  thereof,  but  is  merely 
collateral,  as  the  four  usual  iiiquiries  on  a  quare  impedit,{d)  there  such 
matter  may  be  supplied  by  a  Avrit  of  infjuiry,  without  any  damage  to  the 
party ;  because  if  the  same  had  been  inquired  of  by  the  principal  jury,  it 
would  have  been,  as  to  those  particulars,  no  more  than  an  inquest  of  office, 
upon  Avhich  an  attaint  would  not  \\Q.{e)  So,  where  the  parties  being  at 
issue  in  assumpsit,  a  demurrer  was  joined  upon  the  evidence,  and  the  jury 
discharged,  without  assessing  the  damages;  and  afterwards  judgment  was 
given  for  the  plaintiff",  and  a  writ  of  inquiry  of  damages  awarded ;  the 
court  held,  that  though  the  same  jury  might  have  assessed  the  damages 
conditionally,  yet  it  may  as  well  be  done  by  a  writ  of  in(juiry  of  damages, 
when  the  demurrer  is  determined ;  and  the  most  usual  course  is,  when 
there  is  a  demurrer  upon  evidence,  to  discharge  the  jury  without  further 
inquiry. (^)  So,  in  trespass  or  replevin  against  overseers  of  the  poor,  acting 

(/)  Carth.  362.  2  Str.  1052.  3  Brod.  &  Bing.  298.  But  the  writ  of  a«aint  is  now  abo- 
lished, by  the  statute  G  (Jeo.  IV.  c.  oO,  g  60. 

(g)  Chet/ney's  case,  19  Co.  119,  b.  1  Sid.  246.  T.  Raym.  124.  1  Kcb.  882.  1  Salk.  206. 
1  Sel.  Ni.  "Pri".  6  Ed.  670. 

(A)  1  Sid.  380.  T.  Kaym.  170.  1  Vent.  40.  2  Keb.  409.  1  Lev.  255.  2  Str.  1052.  Cas. 
temp.  Hnrdw.  295,  S.  C.     2  Bhuk.  Rep.  7G3.  Gilb.  Dist.  165. 

(i)   1  Salk.  205,  6.     Cas.  temp.  Hardw.  141,  295. 

(fc)  2  Str.  1052. 

(aa)  3  Barn.  &  Aid.  702. 

(b)  3  Brod.  &  Bing.  297.     7  Moore,  200,  S.  0. 

(c)  9  Moore,  497.     2  Bing.  262,  S.  C. 
(rf)    Chei/ne7/'.i  case,  10  Co.  118. 

(e)  Carth.  362.  {//)  Ore.  Car.  143. 

Vol.  I.— 36 


g»^g  OF  THE  WRIT  OF  INQUIRY. 

virtute  officii,  if  the  plaintiff  be  non8uit,(<7)  or  have  a  verdict  against  him,(^) 
and  the  jury  are  discharged,  without  inquiring  of  the  treble  damages,  pur- 
suant to  the  statute  43  Eliz.  c.  2,  §  19,  the  defect  may  be  supplied  by  a 
writ  of  inquiry ;  because  such  inquiry  is  no  more  than  an  inquest  of  office. 
In  such  case,  as  a  ground  for  awarding  a  writ  of  inquiry,  it  is  necessary  to 
enter  a  suggestion  upon  the  roll,  that  the  defendants  were  overseers  of  the 
poor ;  and  that  the  action  was  brought  against  them,  for  something  done 
by  virtue  of  their  office. (z)  And  a  writ  of  inquiry  may  be  sued  out,  after 
a  writ  of  second  deliverance,  on  a  judgment  of  nonsuit  in  replevin,  for 
want  of  a  declaration,  in  the  Common  Pleas. (A;)  But  upon  an  avowry  for 
rates  made  on  plaintiff's  lands,  under  the  statute  50  Geo.  III. 
[  *576  ]  c.  xlvii,  where  *the  plaintiffs  were  nonsuited,  it  was  holden  that 
the  defendant  was  not  entitled  to  a  writ  of  inquiry  of  damages, 
the  act  only  giving  treble  costs. (a) 

The  writ  of  inquiry  in  ordinary  cases  may  be  executed,  on  due  notice, 
before  the  sheriff  or  his  deputy  ',[hh)  or  by  leave  of  the  court,  under  special 
circumstances,  before  the  chief  justice,(cc)  or  a  judge  of  assize,  as  an 
assistant  to  the  sheriff  :((id!)  And  where  the  writ  of  inquiry  is  executed 
before  the  chief  justice,  or  a  judge  of  assize,  it  is  usual  to  move  for  the 
sheriff  to  return  a  good  jury.(ce)  The  motion  for  this  purpose  is  a  motion 
of  course  in  the  King's  Bench,  requiring  only  counsel's  signature  '-{ff) 
In  the  Common  Pleas,  it  is  made  in  court,  and  the  rule  is  absolute  in  the 
first  instance. (^^)  But  an  inquisition  taken  before  two  under-sheriffs  extra- 
ordinary, was  set  aside  by  the  court  of  Common  Pleas  ;  for  the  high  sheriff 
can  appoint  no  more  than  one  under-sheriff  extraordinary,  to  take  an 
inquest.  (A/i) 

The  notice  of  inquiry  should  be  in  writing  ',{ii)  and  if  the  defendant  have 
appeared,  and  his  attorney  be  known,  it  should  be  delivered  to  such  attor- 
ney •.{kk)  But  if  the  defendant  have  not  appeared,(?)  or  his  attorney  be 
unknown,(m)  the  notice  should  be  delivered  to  the  defendant  himself,  or 
left  at  his  place  of  abode :  And,  in  a  joint  action,  the  notice  of  inquiry 
ought  to  be  given  to  both  defendants. (w)  In  country  causes,  if  an  agent 
be  employed,  notice  of  inquiry,  in  the  King's  Bench,  should  be  delivered 
to  the  agent  in  town,  who  issues  the  subpoenas,  and  not  to  the  attorney  in 
the  country  ;(o)  but,  in  the  Common  Pleas,  it  seems  that  it  may  be  given 

{g)  1  Rol.  Rep.  2T2.  2  Rol.  Rep.  112.  5  Mod.  76,  7,  118.  Carth.  362.  I  Salk.  205. 
Skin.  595.     Comb.  344,  S.  C. 

{h)  Cas.  <emj9.Hardw.  138.  2  Str.  1021,  S.  C.  Say.  Rep.  214.  3  Wils.  442.  2  Blac.  Rep. 
921,  S.  C. 

(i)  Cas.  temp.  Hardw.  138.     Say.  Rep.  214.  {k)  2  Wils.  116. 

\a)  6  Maule  &  Sel.  128.  {bh)  2  Wils.  379. 

{cc)  12  Mod.  519.  1  Str.  612.  2  Str.  853.  Barnes,  135,  6,  233.  2  Wils.  378.  Aris  v. 
Dickie,  H.  43  Geo.  III.  K.  B.  And  for  the  form  of  the  rule,  and  aflBdavit  of  service,  see 
Append.  Chap.  XXII,  I  56,  7. 

{dd)  12  Mod,  610.     Barnes,  135.  {ee)  Append.  Chap.  XXII,  g  55. 

(/)  Ante,  484.  {gg)  Ante,  486. 

(M)  2  AVils.  378  ;  and  see  Barnes,  413.     Pr.  451,  S.  C. 

(«)  R.  AL  4  Ann.(c)  K.  B.  Cas.  Pr.  C.  P.  3. 

(M)  Say.  Rep.  133,  K.  B.  Cas.  P.  R.  C.  P.  62.  Pr.  Reg.  276,  396,  442,  S.  C.  Barnes,  300, 
306,  S.  P. 

II)  R.  T.  1  Geo.  II.  K.  B.  R.  M.  1  Geo.  II.  reg.  1,  C.  P. 

(m)  Say.  Rep.  133,  K.  B.  Cas.  Pr.  C.  P.  62.  Pr.  Reg.  276, 396,  442,  S.  C.  Pr.  Reg.  126,  S.  P. 

ln\  Pr.  Reg.  443. 

(o)  3  East,  568.  In  a  former  case  it  had  been  ruled,  agreeably  to  the  practice  of  the 
Common  Pleas,  that  the  notice  of  inquiry  might  be  given  either  to  the  attorney  in  the 
country,  or  to  the  agent  in  town.     Bell  v.  Trevera,  M.  23  Geo.  III.  K.  B. 


OF  THE  WRIT  OF  INQUIRY.  576 

either  to  the  attorney  in  the  country,  or  to  the  agent  in  tov;n.{p)  If  the 
venue  be  laid  in  London  or  Middlesex^  and  the  defendant  Hve  within  forty 
coviputed[q)  miles  from  London.,  there  must  in  rrt-neral  be  liifJit  days'  notice 
of  inquiry,  exclusive  of  the  day  it  is  given, (r)  and  induifivf  of  that  on  which 
the  inquiry  is  executed  ;(r)  which  notice  is  also  suflicieiit  in  country 
causes :(«)  for  the  statute  14  Geo.  II.  c.  17,  §  4,  which  requires  ten  days* 
notice  of  trial  at  the  assizes,  does  not  extend  to  notices  of  inquiry.  But 
where  the  venue  is  laid  in  London  or  Middlesex,  and  the  defend- 
ant lives  above  forti/  *computed  miles  from  London,  there  must  [  */>77  ] 
he  fourteeji  days'  notice  of  inquiry  :(</)  And  iSunda^  ih  to  be 
accounted  a  day  in  these  notices,  uidess  it  be  the  day  on  which  the  notice 
is  given. (^)  In  the  Exchequer  it  is  a  rule,(c)  that  "  ei</ht  days'  notice  shall 
be  given  of  the  execution  of  writs  of  inc^uiry,  in  all  cases,  except  where  the 
venue  is  laid  in  London  or  Middlesex,  and  the  defendants  reside  above 
forti/  miles  distant  therefrom  ;  and  that  where  the  venue  is  laid  in  London 
or  Middlesex,  and  the  defendants  reside  ahove  forty  miles  distant  there- 
from,/owr^tY'/i  days'  notice  of  the  execution  of  writs  of  in([uiry  shall  be 
given  :"(6')  which  notices  are  required  to  be  entered  by  the  attorneys  or 
side  clerks  of  the  oflSce  of  pleas,  in  the  book  of  orders  kept  in  such  office, 
and  a  written  notice  of  such  entries  left  at  the  seat  in  the  said  office,  of 
the  attorney  or  clerk  in  court  concerned  for  the  defendant,  or  at  his 
chambers  or  place  of  residence. (c) 

The  object  of  the  statute,  in  requiring  fourteen  days'  notice  to  be  given 
to  defendants  residing  sibove  forti/  miles  from  town,  was  to  secure  to  them 
the  full  benefit  of  the  notice  for  eight  days,  part  of  which  time  would  neces- 
sarily be  consumed  in  its  reaching  them  in  the  country,  and  in  giving  them 
time  to  communicate  upon  it  with  their  agents  in  town ;  and  therefore  a 
defendant,  who  was  residing  at  an  hotel  in  town,  from  the  time  of  his  arrest 
till  he  Avas  served  with  notice  of  executing  the  writ  of  inquiry,  was  holden 
not  to  be  entitled  to  more  than  eight  days'  notice  in  a  town  cause,  though 
his  general  residence  was  above  forty  miles  from  town.(d')  So,  where  the 
defendant  was  residing  in  London,  before  and  at  the  commencement  of  the 
action,  eight  days'  notice  of  executing  a  writ  of  inquiry  was  deemed  suffi- 
cient, though  the  defendant  had  in  the  intermediate  time  permanently 
removed  above  forty  miles  from  London,  inasmuch  as  he  had  not  given  the 
plaintiff  previous  notice  of  such  removal. (e)  But  a  defendant  who  is  mas- 
ter of  a  vessel  belonging  to  a  port  above  forty  miles  from  London,  and  who 
has  no  regular  residence  on  shore,  is  entitled  to  fourteeri  days'  notice  of 
executing  a  writ  of  inquiry. (/)  In  replevin,  after  judgment  given  on 
demurrer  for  the  avowant,  fifteen  days'  notice  of  executing  the  writ  of 
inquiry  must  be  given  to  the  plaintiff,  in  like  manner  as  where  he  is  non- 
suited before  issue  joined,  on  the  statute  17  Car.  11  c.  7,  §  2.(g)  Short  notice 
of  inquiry  is  two  days  at  least :(A)     And  where  a  terms  notice  of  trial  is 

{p)  Barnes,  305.  [q)  2  Str.  9r)4.  1216. 

(r)     Stv.  P.  R.  tit.  Notice,  421.     6  Mod.  146.     R.  M.  4  Ann.(c)     8  Mod.  21,  K.  B.  R.  M. 
1654,  g  21,  C.  P. 
(«)  R.  M.  1654,  §  21,  C.  P. 

(a)  R.  M.  4  Ann.  (c),  K.  B.  R.  M.  1654,  §  21,  C.  P. 

(b)  R.  M.  4  Ann.  (r),  K.  H.     8  Mod.  21. 

(c)  R.  H.  .39  (Jco.  III.  in  Scac.  Man.  Ex.  Append.  224.     8  Price,  503,  4. 
\d)  7  East,  624.  (e)  12  East,  427. 

(/)  6  Taunt.  450.     2  Marsh.  151,  S.  C. 

{g)  6  Taunt.  57.     1  Marsh.  444,  S.  C.  Append.  Chap.  XLV.  \  78. 

(A)  Barnes,  301.     Pr.  Reg.  390,  S.  C. 


ryrn  OF  THE  WRIT  OF  INQUIRY. 

required,  there  must,  at  the  same  distance  of  time,  be  the  like  notice  of 
innuiry :(/)  -which  notice  may  it  seems  be  given,  in  the  King's  Bench,  before 
the  first  day  in  full  term  ;(/c)  but,  in  the  Common  Pleas,  it  must  be  given 
before  the  essoin  day  of  the  fifth,  or  other  subsequent  term  ;(Z) 
[  *578  ]  *and,  in  the  former  court,  it  may  be  given  at  once,  without  any  pre- 
vious notice  of  a  general  intention  to  proceed  in  the  cause. (a) 
In  the  King's  Bench,  when  the  plaintiff  upon  any  pleading  of  the  defen- 
dant, tenders  an  issue,  and  the  paper  book  is  made  up  and  delivered  with 
notice  of  trial,  and  the  defendant  strikes  out  the  similiter,  and  returns  the 
book  with  a  demurrer,  if  judgment  be  given  thereon  for  the  plaintiff"  and  a 
writ  of  inquiry  be  necessary  to  ascertain  the  damages,  the  defendant's 
attorney  shall  be  obliged  to  accept  notice  of  executing  the  writ  of  inquiry, 
from  the  time  of  giving  the  notice  of  trial  ;(5)  but  the  plaintiff"  in  such  case 
ought  to  give  notice  of  the  hour  and  place  of  executing  the  inquiry. (c)  In 
the  Common  Pleas  it  is  a  rule,  that,  "in  every  cause  where  the  plaintiff"  con- 
cludes to  the  country,  and  gives  notice  of  trial  upon  the  back  of  his  plead- 
ing, if  the  defendant  do  not  join  issue  thereon  before  the  rule  is  out,  the 
defendant's  attorney  shall,  after  judgment  obtained,  be  obliged  to  accept 
notice  of  executing  a  writ  of  inquiry,  from  the  time  that  notice  of  trial  was 
BO  given  on  the  back  of  such  pleading  '.'"{dd)  And  it  is  also  a  rule  in  that 
court,  that  "  where  the  defendant  demurs  to  the  plaintiff"'s  declaration,  the 
defendant's  attorney  shall  be  obliged  to  accept  notice  of  executing  the  writ 
of  inquiry,  on  the  back  of  the  joinder  in  demurrer  :"  And  where  the  defen- 
dant pleads  such  a  dilatory  plea  as  the  plaintiff"  is  obliged  to  demur  to,  his 
attorney  shall  accept  notice  of  executing  the  writ  of  inquiry,  on  the  back 
of  the  demurrer :" (eg)  So,  upon  an  issue  of  nul  tiel  record,  notice  of 
executing  a  writ  of  inquiry,  may  be  given,  in  the  Common  Pleas,  upon  the 
issue  book,  as  well  as  upon  a  joinder  in  demurrer.(^)  In  like  manner,  it 
is  a  rule  in  the  Exchequer,(^)  that  "  in  all  cases  where  the  plaintiff"  con- 
cludes to  the  country,  the  plaintiff"s  attorney  or  clerk  in  court  may  give 
notice  of  trial,  at  the  time  of  delivering  his  replication  or  other  subsequent 
pleading,  in  case  issue  shall  be  joined  thereon,  or  of  executing  a  writ  of 
inquiry  in  default  of  joining  issue  ;  which  shall  be  deemed  good  notice  of 
trial,  from  the  time  of  the  delivery  of  such  replication,  or  other  subsequent 
pleading,  in  case  issue  shall  be  joined ;  and  if  the  defendant  do  not  join 
issue  on  such  replication,  or  other  subsequent  pleading,  and  the  plaintiff" 
sign  judgment  for  want  thereof,  the  defendant's  attorney  or  clerk  in  court 
shall  take  notice  of  executing  a  writ  of  inquiry,  from  the  time  that  notice 
thereof  was  given  as  aforesaid  :  And  that  in  all  cases  where  the  defendant 
demurs  to  the  plaintiff"s  declaration,  replication,  or  other  subsequent  plead- 
ing, the  defendant's  attorney  or  clerk  in  court  shall  be  obliged  to  accept 
notice  of  executing  a  writ  of  inquiry,  on  the  back  of  the  joinder  in  demurrer ; 
and  in  case  the  defendant  pleads  a  dilatory  plea,  to  which  the  plaintiff" 
is  obliged  to  demur,  the  defendant's  attorney  or  clerk  in  court 
[  *579  ]  shall  be  obliged  *to  accept  notice  of  executing  a  writ  of  inquiry, 
on  the  back  of  such  demurrer." 

(?)  2  Str.  1100.    Pr.  Reg.  444.  R.  E.  13  Geo.  II.  reg.  2  C.  P.  R.  T.  26  &  27  Geo.  II.  g  5,  in 
Scac.     Man.  Ex.  Append.  211,  212. 

(k)  Imp.  K.  B.  10  Ed.  412.  (I)  R.  E.  13  Geo.  II.  C.  P. 

(a)  Smith  V.  Paul,  M.  46  Geo.  III.  K.  B.  3  Smith  R.  101,  S.  C. 

(b)  R.  H.  8  Geo.  I.  K.  B.  (c)  Id.  (a). 

(dd)  R.  H.  6  Geo.  I.  reg.  1,  C.  P.  (ee)  R.  T.  10  Geo.  I.  C.  P. 

(/)  Pr.  Reg.  443.  (g)  R.  T.  26  &  27  Geo.  II.  §  4,  in  Scac.  Man.  Ex.  Append.  211. 


OF  THE  WRIT  OF  INQUIRY.  579 

When  the  Inquiry  is  to  be  executed  before  the  chief  justice,  or  a  judge 
of  assize,  the  notice  shouhi  be  /jjiven  for  the  sittinffs  or  assizes  generally  ;(f/) 
but  otherwise  the  notice  shoidd  exi)ress  the  particular  time  and  place  of 
executing  it.(/>)  A  writ  of  inquiry  may  be  executed  at  any  time  before,  or 
on  the  <lay  it  is  returnable  ;{(■)  but  not  on  a  Sundai/  :[<l)  and  ■where  the 
notice  wjis  to  execute  it  bj/  ten  o'clock,  the  court  set  it  aside  for  uncer- 
tainty.{e)  So,  in  the  Common  I'leas,  notice  of  exeoiting  a  writ  of  inquiry 
between  the  hours  of  ten  or  eleven  and  two  o'clock,  has  been  deemed  insuffi- 
cient:(/)  but  notice  of  executing  an  inijuiry  at  eleven  o'clock  is  good,  if 
executed  before  twelve  :(////)  And,  in  that  court,  where  notice  was  given 
of  executing  a  writ  of  in(|uiry  on  TacHdnj/  the  fourteenth  d;iy  d'l  'lanudry 
instant,  when  the  fourteenth  of  Januarij  fell  on  a  T/turn(l(ii/,  the  court 
refused  to  set  aside  the  execution  of  the  writ  of  incjuiry  on  that  ground, 
rejecting  the  word  Tuesday  as  surplusage. (A)  So,  where  notice  of  execut- 
ing a  writ  of  in<[uiry  was  given  for  Wednesday  the  eleventh  of  June  instant 
when  Wednesday  fell  on  the  tenth  of  June,  on  which  day  the  writ  (»f 
inquiry  was  executed,  the  court  refused  to  set  it  aside,  the  defendant  not 
swearing  that  he  was  thereby  misled. (^)  The  usual  way  is  to  give  notice 
that  the  inquiry  will  be  executed  between  two  certain  hours,(A')  as  between 
ten  and  twelve  o'clock  in  the  forenoon,  or  between /(9?ir  and  six  in  the  after- 
noon of  a  particular  day,  on  or  before  the  return  of  the  writ.  On  a  notice 
of  inquiry  so  given,  however,  the  party  is  not  tied  down  to  the  precise  time 
fixed  by  the  notice ;  for  the  sheriff  may  have  prior  business,  which  m;iy 
last  beyond  it :  Therefore,  where  notice  was  given  of  executing  an  in(iuiry, 
between  ten  and  twelve  o'clock,  and  the  irregularity  complained  of  was, 
that  the  defendant  and  his  witnesses  attended  till  twelve,  and  after  the 
hour  was  elapsed,  and  they  were  gone,  the  writ  was  executed ;  the  court 
of  King's  Bench  refused  to  set  aside  the  inquisition,  conceiving  it  was 
clearly  a  trick  of  the  defendant's  attorney,  to  leave  the  place  immediately 
after  the  hour  was  passed. (Z) 

With  regard  to  the  place  of  executing  an  inquiry,  it  must  be  executed 
within  the  county  where  the  action  is  laid.  In  London,  inquiries  are  exe- 
cuted at  the  secondaries'  office,  No.  28,  in  Coleman  street ;  in  Middlesex^ 
at  the  sheriff's  office,  in  Red  Lion  square  ;  and  in  other  counties,  at  a  cer- 
tain place  appointed  for  that  purpose :  and  the  notice  should  be  given 
accordingly.  Any  irregularity,  however,  in  the  notice  of  incpiiry, 
or  in  the  *time  and  place  of  executing  it,  is  cured  by  the  aj)pear-  [  *oS0  ] 
ance  of  the  defendant  or  his  attorney,  and  making  a  defence  on 
the  execution  of  the  writ.(aa) 

Notice  of  inquiry  may  be  continued,{bb)  or  countermanded,{cc)  in  like 
manner  as  notice  of  trial :  but,  in  the  King's  Bench,  the  continuance  or 
countermand  of  notice  of  inc^uiry  nmst  be  delivered  to  the  agent  in  town, 
and  not  to  the  attorney  in  the  co\intrj.{dd)     A  notice  of  incjuiry  can  be  con- 

(ffl)  Barnes,  13.'»,  6.     Append.  Chnp.  XXII.  ^  60,  63,  4. 

(6)  Say.  Rep.  181.  K.  H.  IJarnes,  207,  2<J'J,  300,  301.  Pr.  Reg.  446,  7,  S.  C. ;  and  see 
Append.  Chap.  XXII.  ?  57,  8,  9. 

(c)  2  Ld.  Ravm.  1449.  (d)   1  Str.  .{87. 

(r)  2  Str.  1142.  (/)  Barnes,  296.  7.     Pr.  Reg.  445,  S.  C. 

{(jf/)  Barnes,  302.     Pr.  Reg.  446,  S.  C.  (A)  3  Bos.  k  Piil.  1. 

(ij   1  Chit.  Rep.  11  ;  but  .see  id.  615. 

(k)  Say.  Rep.  181.     Barnes,  296.     Pr.  Reg.  445,  S.  C.  (/)  Doug.  198. 

(aa)  Barnes,  233,  309,  413.     Pr.  Reg.  451,  S.  C. 

{bb)  Append.  Chap.  XXlI.g  63.  (cc)  Id.  §  64. 

{dd)  Imp.  K.  B.  10  Ed.  415. 


680 


OF  THE  WRIT  OF  INQUIRY. 


tinued  but  once  ;{e)  and  the  notice  of  continuance  should  be  served  two  days 
previous  to  the  time  appointed  for  executing  the  inquiry  :(e)  but  if  notice 
of  a  writ  of  inquiry,  to  be  executed  at  a  particular  hour  and  place,  be  con- 
tinued, the  notice  of  continuance  need  not  express  any  hour  or  place.(/) 
The  notice  of  countermand  ought  to  be  in  writing  •,[g)  and  may  in  this  court 
be  given  to  the  attorney  in  the  country,  as  well  as  the  agent  in  town  :[h) 
And  it  seems,  that  where  eight  days'  notice  is  sufficient  for  executing  an 
inquiry,  ttvo  days'  notice  of  countermand  will  serve  ;  but  if  fourteen  days' 
notice  of  inquiry  be  requisite,  then  there  must  be  six  days'  notice  of  coun- 
termand.(i) 

In  London  and  Middlesex,  the  writ  must  be  left  at  the  sheriflf's  office, 
the  day  before  the  time  appointed  for  its  execution  :{k)  and  if  either  party 
propose  to  attend  by  counsel,  he  should  give  notice  thereof  to  his  adver- 
sary ;(Z)  or  he  will  not  be  allowed  for  it  in  costs.  If  such  notice  be  not 
given,  the  sheriff,  if  required,  will  postpone  the  execution  of  the  inquiry, 
till  the  other  party  has  an  opportunity  of  attending  by  counsel  :{m)  And, 
in  the  King's  Bench,  it  is  in  all  cases  in  the  discretion  of  the  master,  on 
the  taxation  of  costs,  to  allow  or  disallow  the  fee  to  counsel,  as  well  as  the 
expense  of  preparing  the  brief,  &c.(w)  Previous  to  the  execution  of  the 
inquiry,  witnesses  may  be  subpoenaed  on  either  side  :{o)  and  the  execution 
of  it  may  be  adjourned  by  the  sheriff,  after  it  is  entered  upon.(j3)  If  the 
plaintiff  do  not  proceed  to  execute  the  inquiry  according  to  notice,  or  coun- 
termand in  time,  the  defendant,  on  an  affidavit  of  attendance  and  neces- 
sary expenses,  shall  have  his  costs,  to  be  taxed  by  the  master  or  prothono- 
taries.((/)  The  motion  for  this  purpose  is  a  motion  of  course,  in  the  King's 
Bench,  requiring  only  counsel's  signature  :  In  the  Common  Pleas,  the  costs 
are  granted  on  a  side-bar  or  treasury  rule. 

Letting  judgment  go  by  default  is  an  admission  of  the  cause  of  action : 
and  therefore,  where  the  action  is  founded  on  a  contract,  the  de- 

*581  ]  fendant  *cannot  give  in  evidence  that  it  was  fraudulent. (a)  So, 
in  an  action  on  a  promissory  note  or  bill  of  exchange,  the  note 
or  bill  need  not  be  proved,  though  it  must  be  produced  before  the  jury,  in 
order  to  see  whether  any  money  appears  to  have  been  paid  upon  it. (6) 
So,  where  an  action  was  brought  on  a  policy  of  assurance  on  a  foreign  ship, 
wherein  there  was  a  stipulation,  that  the  policy  should  be  deemed  sufficient 
proof  of  interest,  the  plaintiff,  on  the  writ  of  inquiry,  was  only  bound  to 
prove  the  defendant's  subscription  to  the  policy,  without  giving  any  evi- 
dence of  interest.(e)     And  suffering  judgment  by  default,  in  an  action  for 

(e)  Barnes,  297.     2  Chit.  Rep.  220.  (/)   1  Bos.  &  Pul.  363. 

Iff)  R.  M.  4  Ann.  (c),  K.  B.     Cas.  Pr.  C.  P.  3. 

(h)  Cas.  Pr.  C.  P.  48,  9 ;  120.     Pr.  Reg.  393.     Barnes,  298,  S.  C. 

(i)  Imp.  C.  P.  1  Ed.  431.  (k)  R.  H.  24  Geo.  III.  K.  B.  &  C.  P. 

(I)  Append.  Chap.  XXII.  |  65.  (»«)  5  Price,  641. 

(n)    Ullock  V.  Ilemsworth,  T.  6  Geo.  IV.  K.  B. 

(o)  For  the  process  of  subpoena  on  a  writ  of  inquiry,  and  the  subjioena  ticket,  see  Append. 
Chap.  XXII.  §  66,  7,  8. 

(p)  2  Str.  853,  1259. 

(?)  1  Str.  317.  2  Str.  728.  R.  H.  8  Geo.  I.  (a),  K.  B.  R.  T.  13  Geo.  II.  reg.  1  C.  P. 
Previous  to  which  latter  rule,  it  appears  that  costs  were  not  allowed  in  the  Common  Pleas, 
for  not  executing  a  writ  of  inquiry  according  to  notice.  Cas.  Pr.  C.  P.  86.  Pr.  Reg.  448, 
S.  C. 

{a\   1  Str.  612. 

(6)  2  Str.  1149.  Barnes,  233,  4.  3  Wils.  155.  2  Blac.  Rep.  748,  S.  C.  Doug.  316. 
Milieu  V.  Lyne,  H.  25  Geo.  III.  K.  B.     3  Durnf.  &  East,  301.     1  H.  Blac.  543.     Ry.  &  Mo.  41. 

(c)  Doug.  315. 


OF  THE  WRIT  OF  INQUIRY.  581 

use  and  occupation,  amounts  to  an  admission  that  the  defendant  occupied 
a  house  under  the  phiintiff,  who  need  not  show  that  it  was  his  own  house ; 
and  if  the  defendant  iu.sist  that  he  did  not  o('C'U|ty  the  particuhir  house  to 
which  the  evidence  has  heen  directed,  hut  some  otiier,  he  must  prove  the 
fact.((/)  On  the  execution  of  a  writ  of  in(iuiry,  though  it  has  not  heen 
usual,  a  sheriff's  jury  ought  to  give  interest,  in  eases  where  the  courts  at 
Westminster  would  allow  it.(<')  And  although  the  jury,  on  the  execution  of 
a  writ  of  inquiry,  cannot  give  interest  in  an  action  for  work  and  lahour, 
yet  where  they  have  deducted  ten  per  cent,  on  the  whole  amount  of  the 
plaintiff's  demand,  in  conformity  with  an  agreement  hctween  the  parties, 
that  such  deduction  sliould  be  made  for  ready  money,  they  may  re-allow 
the  plaintiff"  a  proportional  part  of  that  deduction,  on  the  balance  found  to 
be  due  to  him,  and  which  had  remained  for  a  considerable  time  unpaid. (/) 
If  the  defendant,  in  an  action  for  words  spoken  of  an  attorney,  let  judg- 
ment go  by  default,  and,  on  the  execution  of  the  writ  of  inquiry,  neither 
plaintiff"  nor  defendant  goes  into  evidence  of  any  kind,  the  jury  may  give 
such  moderate  damages  as  they  think  ought  to  be  paid,  for  the  speaking  of 
an  attorney  the  words  laid  in  the  declaration. (i^r) 

On  the  return  day  of  the  inquiry,  the  plaintiff",  in  the  King's  Bench, 
should  give  a  rule  for  judgment,(7t)  with  the  clerk  of  the  rules;  which  ex- 
pires in  four  days  :[i)  and,  on  the  expiration  of  such  rule,(i)  the  sheriff", 
being  called  upon  for  his  return,  will  deliver  it,  with  the  in(iuisition,(/:)  to 
the  plaintiff"8  attorney ;  who  taxes  his  costs  thereon  Avith  the  master.  In 
the  Common  Pleas,  there  is  no  rule  for  judgment  given  on  the  return  of 
the  inquiry,  but  the  plaintiff"'8  attorney  waits  four  days  after  the  return 
day,  inclusive  of  both  days ;  after  which,  the  inquisition  being  previously 
obtained  from  the  sheriff",  the  prothonotaries  will  tax  the  costs  thereon :(/) 
And,  in  that  court  when  final  judgment  is  signed  upon  an  inquisition  on  a 
writ  of  inquiry,  the  inquisition  must  immediately  be  left  with  the 
*clerk  of  the  judgments,  and  shall  not  afterwards  be  taken  out  [  *582  ] 
of  the  office,  without  leave  of  the  court. (aa) 

Pending  the  rule  for  judgment,  or  time  allowed  in  the  Common  Pleas, 
the  defendant  may  move  to  set  aside  the  inquisition,  for  want  of  due 
notice  -.{hh)  or  on  account  of  an  objection  to  the  jury,  or  mode  of  returning 
them,  as  that  some  of  the  jury  were  debtors  taken  out  of  prison  for  the 
purpose  of  attcnding,(c)  or  that  they  were  returned  by  the  ])lainliff"'s 
attorney  ;(c?(i)  or  for  excessive  damages. (t'c)  And  where  the  damages  are 
obviously  too  small, (^)  and  there  has  been  any  contrivance  by  the  defcnd- 
2iHt,{ffg)  or  surprise  on  the  plaintifi',(A/i)  or  the  sheriff"  or  jury  have  been 

(d)  Doris  V.  J[oldMp,  E.  54  Geo.  III.  K.  B.     1  Chit.  Rep.  644,  5,  {a). 

\c)  6  Taunt.  346. 

(/•)  9  Price,  l.'U. 

(q)   1  Car.  k  P.  4T7,  8.     3  Barn,  k  Cres.  427.     5  Dowl.  k  Ryl.  276,  S.  C. 

(h)  Append.  Chap.  XXII.  §  70.  (0   1  Salk.  399. 

(k)  Append.  Chap.  XXII.  \  69,  86,  7. 

\l)  Imp.  C.  P.  7  Ed.  437. 

[an]  R.  T.  13  Geo.  II.  reg.  2  C.  P. 

{hb)  Sty.  P.  R.  421.  Pr.  Reg.  446,  7,  8. 

(c)  4  Durnf.  k  East,  473  ;  but  see  2  Str.  1159. 

\dd)  Cowp.  112.  For  the  qualification  of  jurors,  on  inquests,  &c.,  and  fining  them  for  non- 
attendance,  see  Stat.  6  Geo.  IV.  c.  50,  §  52,  3. 

{ee)  2  Leon.  214.  3  Leon.  177,  S.  C.  3  Bur.  1846.  3  Wils.  63;  but  see  11  East,  23.  1 
Chit.  Rep.  729.     5  Price,  641. 

(/)  3  Barn,  k  Cres.  533.  {gg)  2  Salk.  047. 

\hh)  1  Str.  515.     2  Str.  1259. 


^g2  OF  THE  WRIT  OF  INQUIRY. 

mistaken  in  point  of  law,(z)  but  not  otherwise, (A:)  the  plaintiff  may,  at  any 
time  before  final  judgment  signed,(?)  move  to  set  aside  the  inquisition. 
But  the  court  will  not  grant  a  rule  for  setting  aside  an  inquisition,  after 
judgment  by  default,  in  an  action  for  words,  on  the  ground  that  the  under- 
slieriff  directed  the  jury  to  consider  the  poverty  of  the  defendant,  in 
mitigation  of  damages. (?»,)  On  motion  to  set  aside  an  inquisition,  taken 
on  a  writ  of  inquiry  before  the  under-sheriff,  for  excessive  damages,  the 
court  would  not  admit  minutes  of  what  passed  before  the  under-sheriff  to 
be  read,  unless  verified  by  affidavit ;  and  such  motion  cannot  be  supported, 
on  the  affidavits  of  the  parties  themselves,  unless  corroborated  by  others. (w) 
And  where  the  defendant  moved  to  set  aside  an  inquisition  for  excessive 
damages,  the  court  of  King's  Bench  imposed  the  terms  of  bringing  part  of 
the  damages  into  court,  before  they  granted  a  rule  to  show  cause. (o) 

If  two  defendants  in  trespass  suffer  judgment  by  default,  and  the  plaintiff 
execute  writs  of  inquiry,  and  take  several  damages  against  them  separately, 
it  is  irregular ;  and  if  the  plaintiff  enter  up  final  judgment  for  those  several 
damages  against  the  defendants,  it  is  erroneous.  But  the  court  of  King's 
Bench  will  permit  the  plaintiff  to  set  aside  his  own  proceedings,  before  final 
judgment,  on  payment  of  costs. (jw)  And  if  the  plaintiff,  on  the  execution 
of  the  writ  of  inquiry,  give  no  evidence  on  one  or  more  of  the  counts  in 
his  declaration,  he  may  afterwards  sue  for  the  causes  of  action 
[  *583  ]  contained  in  those  counts :  Thus,  where  the  plaintiff  in  a  former 
*action  declared  on  a  promissory  note,  and  for  goods  sold,  but 
upon  executing  a  writ  of  inquiry,  after  judgment  by  default,  gave  no 
evidence  on  the  count  for  goods  sold,  and  took  his  damages  for  the  amount 
of  his  promissory  note  only,  the  court  of  King's  Bench  ruled,  that  the 
judgment  thereupon  was  no  bar  to  his  recovering,  in  a  subsequent  action, 
for  the  goods  sold.(a) 

The  want  of  a  writ  of  inquiry  is  aided  by  the  statute  of  jeofails.  (5)  And 
where  a  WTit  of  inquiry  had  been  many  years  executed,  and  costs  taxed 
upon  it,  but  no  final  judgment  entered  up ;  there  being  occasion  to  prove 
the  debt  in  Chancery,  and  the  writ  of  inquiry  being  lost,  a  rule  was  made, 
in  the  King's  Bench,  for  a  new  writ  of  inquiry  and  inquisition,  according 
to  the  sheriff's  notes,  and  that  the  master  should  indorse  the  costs,  which 
by  the  commitment  book  appeared  to  have  been  taxed. (cc)  After  an  award 
of  a  writ  of  inquiry  of  damages,  if  final  judgment  be  given  for  a  certain 
sum,  with  the  plaintiff's  assent,  it  is  no  cause  of  error,  although  the  record 
contain  no  entry  of  an  inquisition  executed.  (^) 

(i)  2  Salk.  647.  1  Str.  425.  8  Mod.  196.  2  Str.  1259.  6  Durnf.  &  East.  608.  1  Chit. 
Rep.  644,  (a).     8  Dowl.  &  Ryl.  69. 

(A-)  2  Leon.  214.  3  Leon."  177,  S.  C.  Barnes,  230.  Pr.  Reg.  450,  S.  C.  2  Str.  940.  2 
Barnard.  K.  B.  177,  S.  C.     Dong.  509.     2  Durnf.  &  East,  261. 

(/)  M'Cidlock  V.  Willcocks,  M.  37  Geo.  III.  K.  B.     2  Wils.  379,  C.  P. 

(w)  1  Chit.  Rep.  644.  And  as  to  the  evidence,  in  an  action  for  seducing  the  plaintiff's 
daughter,  see  3  Campb.  519.     5  Price,  641. 

(n)   10  Moore,  106. 

(o)  1  Chit.  Rep.  729 ;  and  see  2  Chit.  Rep.  219. 

(p)  6  Durnf.  k  East,  199. 

{a)  6  Durnf.  &  East,  607  ;  and  see  1  Chit.  Rep.  645,  in  notis.  Per  Cur.  E.  55  Geo.  III. 
K.  B. 

(h)   2  Str.  878. 

(cc)  Id.  1077. 

(d)  4  Taunt.  148. 


OF  PROCEEDINGS  ON  THE  STATUTE,  ETC.  583 

After  final  judf^ment,  wo  have  8een,((')  a  writ  of  iiKjuiry  is  in  ^'cneral 
unnecessary.  But,  by  the  statute  8  &  9  W.  III.  c.  11,  §  8,  it  is  enacted, 
that  "  in  all  actions  upon  any  bond  or  bonds,  or  on  any  ])cnal  sum,  for 
non-performance  of  any  covenants  or  a^iroements  in  any  indenture,  deed  or 
writing  contained,  if  judgment  shall  be  given  for  the  plaintifl'  on  a  demurrer, 
or  by  confession  or  ui/n'l  Jirit,  the  plaintiff  upon  the  roll  may  HUi/t/t'st  as 
many  breaches  of  the  covenants  and  agreements  as  he  shall  think  fit ;  ujxui 
which  shall  issue  a  writ  to  the  sheriff  of  that  county  where  the  action  shall 
be  brought,  to  summon  a  jury  to  appear  before  the  justices  or  justice  of 
assi/.e  or  nt'ni  jjrius  of  that  county,  to  inquire  of  the  truth  of  every  one  of 
those  breaches,  and  to  assess  the  damages  that  the  plaintifi' shall  have  sus- 
tained thereby  ;  in  which  writ  it  shall  be  commanded  to  the  said  justices  or 
justice  of  assize  or  nisi  prius,  that  he  or  they  shall  make  return  thereof  to 
the  court  from  whence  the  same  shall  issue,  at  the  time  in  such  writ  men- 
tioned:  And  in  case  the  defendant  or  defendants,  after  snch  jud<pncnt(f) 
entered,  and  before  any  execution  executed,  shall  pay  into  the  court  where 
the  action  shall  be  brought,  to  the  use  of  the  plaintiff  or  plaintiffs,  or  his  or 
their  executors  or  administrators,  such  damages  so  to  be  assessed,  by  reason 
of  all  or  any  of  the  breaches  of  such  covenants,  together  with  the  costs  of 
suit,  a  stay  of  execution  of  the  said  judgment  shall  be  entered  upon  record  ; 
or  if,  by  reason  of  any  execution  executed,  the  plaintiff  or  plaintiffs,  or  his 
or  their  executors  or  administrators,  shall  be  fully  paid  or  satis- 
fied all  *such  damages  so  to  be  assessed,  together  with  his  or  [  *584  ] 
their  costs  of  suit,  and  all  reasonable  charges  and  expenses  for 
executing  the  said  execution,  the  body,  lands  or  goods  of  the  defendant 
shall  be  thereupon  forthwith  discharged  from  the  said  execution,  which 
shall  likewise  be  entered  upon  record :  But  notwithstanding,  in  each  case, 
such  judgment  shall  remain,  continue  and  be  as  a  further  security  to  answer 
to  the  plaintiff  or  plaintiffs,  and  his  or  their  executors  or  administrators, 
such  damages  as  shall  or  may  be  sustained,  for  further  breach  of  any 
covenant  or  covenants  in  the  same  indenture  deed  or  writing  contained." 

This  statute  w^as  made  in  favour  of  defendants ;  and  it  is  highly 
remedial,  being  calculated  to  protect  them  against  the  payment  of 
more  money  than  is  justly  due,  and  to  take  away  the  necessity  of  pro- 
ceedings in  equity,  to  obtain  relief  against  an  unconscientious  demand  of 
the  whole  penalty,  in  cases  where  small  damages  only  have  accrued  -.{a) 
and  accordingly,  it  has  received  a  very  liberal  construction.  Where  cove- 
nants and  agreements  are  contained  in  the  condition  of  a  bond,  they  are 
holden  to  be  within  the  statute,  as  well  as  where  they  are  in  a  different 
instrument  :(6)  And  though  it  was  formerly  doubted,(c)  yet  it  is  now  settled, 
that  the  statute  is  comjmhory  on  the  plaintiff,  to  proceed  in  the  method  it 
prescribes.(c?)  A  bond  conditioned  for  the  ])ayinentof  an  annuity, {>(•)  or  of 
money  by  instalments, (^)  is  holden  to  be  within  the  statute ;  or  a  bond 

(f)  Ante,  573. 

(/)  The  judgment  here  spoken  of,  by  reference  to  a  former  part  of  the  statute,  seems  to 
be  the  common  law  judgment  for  the  penalty. 

((/)  5  Duriif.  k  East,  iVM. 

{b)  2  Bur.  772.  2  Ken.  492,  S.  C.  2  Bur.  820.  2  Ken.  530,  S.  C.  2  Blac.  Rep.  843. 
Doug.  .519. 

Ic)  Cora.  Rep.  376. 

\d)  2  Wils.  377.  Sftv.  Dam.  67,  R.  C.  Cowp.  357.  Daubcny  v.  Hogarth,  E.  27  Geo.  Ill, 
K.  B.     Per  Cur.  H.  41  Geo.  III.  K.  B.     13  East,  3,  {a). 

{ee)  2  Bur.  820.     2  Ken.  530,  S.  C.     5  Durnf.  &  East,  538,  636.     8  Duruf  k  East.  126. 

(/)  6  East,  550.     2  Smith  R.  663,  S.  C. 


534  OF  PROCEEDINGS  ON  THE  STATUTE,  ETC. 

conditioned  to  perform  an  award. (</)  And  where  a  bond,  upon  the  face  of 
it,  appeared  to  be  conditioned  for  the  payment  of  a  sum  certain,  but  by  an 
indenture  of  the  same  date,  declaring  the  purposes  for  Avhich  the  bond  was 
executed,  it  was  agreed  that  it  should  be  lawful  for  the  obligees  to  com- 
mence an  action  upon  the  bond,  and  to  proceed  to  judgment,  whenever 
they  should  think  fit ;  and  upon  judgment  being  obtained  to  issue  execu- 
tion, and  that  the  judgment  should  be  a  security  for  the  payment  to  the 
obligees,  on  demand,  of  all  sums  of  money  which  then  were,  or  might 
thereafter  become  due  to  them ;  and  judgment  having  been  entered  up  by 
virtue  of  this  deed,  the  obligees  issued  execution,  without  assigning  breaches 
or  executing  a  writ  of  inquiry ;  the  court  held,  that  this  was  a  bond  sub- 
stantially conditioned  for  the  performance  of  an  agreement,  within  the 
statute  8  &  9  W.  III.  c.  11,  §  8,  and  that  the  obligees  ought  to  have 
assigned  breaches  thereon. (A)  But  the  provisions  of  the  statute  do  not 
extend  to  post  obit  bonds,(z)  or  other  bonds  conditioned  for  the  payment 
of  money, ik)  which  are  provided  for  by  the  statute  4  Ann.  c.  16, 
[  *585  ]  §  13 ;  nor  to  bail,[l)  or  replevin[m)  bonds ;  *nor,  as  it  seems,  to 
bonds  given  to  the  Lord  Chancellor,  by  the  petitioning  creditor 
for  a  commission  of  bankrupt,  under  the  statute  6  Geo.  IV.  c.  16,  §  13  -.{a) 
And  where  judgment  is  entered  upon  a  warrant  of  attorney,  it  is  not 
within  the  statute. (6)  It  is  not  necessary  for  the  crown  to  assign  breaches, 
under  the  above  statute ;  and  if  any  one  breach  be  proved,  the  crown  is 
entitled  to  judgment.(c) 

In  cases  where  the  statute  applies,  judgment  is  signed  for  the  penalty  as 
at  common  law  •,{dd)  but  it  can  only  stand  as  a  security  for  the  damages 
sustained :  and,  after  signing  judgment,  the  plaintiff  must  proceed  on  the 
statute,  by  suggesting  breaches  on  the  roll  •,{ee)  of  which  a  copy  should  be 
given  to  the  defendant, (^)  with  notice  of  inquiry  for  the  sittings  or 
assizes.(^(7)  A  writ  of  inquiry  (A  A)  is  then  sued  out,  and  delivered  to  the 
sheriff;  who  summons  the  jury,  and  returns  the  jury  process,  with  a  panel 
of  the  names  of  the  jurors,  and  the  writ  being  executed,  is  returned  to  the 
court,  with  the  finding  of  the  jury,(2Y)  and  execution  awarded  for  the 
damages  and  costs :  But  no  second  judgment  is  given  by  the  court,  on  the 
return  of  the  inquiry. (A; A;)  On  the  execution  of  a  writ  of  inquiry  on  this 
statute,  after  judgment  on  demurrer,  the  execution  of  an  instrument  which 
the  defendant  had  stated,  in  setting  out  the  condition  of  the  bond  in  his 
plea,  need  not  be  proved  :[ll)  But,  in  debt  on  bond  conditioned  for  the 
performance  of  covenants,  if  the  condition  be  not  set  out  in  the  pleadings, 

(g)  G  East,  613.     2  Smith  R.  666,  S.  C. 
(A)  5  Barn.  &  Ores.  650.     8  Dowl.  &  Ryl.  424,  S.  C. 

[i)  2  Campb.  285,  n.     2  Barn.  &  Cres.  82,  89,  &c.     3  Dowl.  &  Ryl.  278,  281,  &c.  S.  C. 
{k)  2  Moore,  220. 

(I)  Selby  and  others,  assignees,  ^c.  v.  Serres,  E.  41  Geo.  III.  K.  B.  2  Bos.  &  Pul.  446, 
C.  P. 

(m)  Manle  &  Sel.  155. 

(a)  7  Durnf.  &  East,  300.     3  East,  22. 

(b)  2  Taunt.  195.     3  Taunt.  74.     5  Taunt.  264;  and  see  16  East,  164. 

(c)  1  Younge  &  J.  171. 

(dd)  2  Bur.  825.     2  Ken.  532,  3,  S.  C.     Cowp.  357. 

fee)  Append.  Chap.  XXII.  §  75,  6,  7,  8,  9. 

iff)  M'Clel.  568. 

(gg)  Append.  Chap.  XXII.  g  85.  (hh)  Id.  ^  80,  81,  2,  3,  4. 

(»)  Id.  I  86,  7. 

{kk)  3  Bos.  &  Pul.  607.     3  Dow.  1 ;  and  see  1  Man.  &  Ryl.  496,  (a). 

[U)  1  Esp.  Rep.  157;  and  see  1  Bos.  &  Pul.  368. 


OF  OYER,  AND  COPY  OF  DEEDS,  ETC.  685 

the  plaintiff,  on  executing  a  writ  of  inquiry  under  the  statute  8  &  9  W. 
III.  c.  11,  must  prove  that  the  bond  mentioned  in  the  suggestion,  and 
produced  to  the  jury,  is  that  on  which  the  action  was  brought. (w) 


*C  II  AFTER    XX  II  I.  [♦586] 

Of  Oyer,  and  Copy  0/ Deeds,  S^c.  ;  Inspection,  awcT  Copies  0/ Written 
Instruments,  Books,  Court  Rolls,  S^c;  ancZ  Particulars  of  De- 
mand, or  Set  off. 

Hitherto  we  have  supposed  the  action  to  be  rightly  brought,  and  con- 
sidered what  is  to  be  done,  when  the  defendant  has  no  merits.  We  have 
seen,  that  in  such  case  he  should  compromise  or  compound  the  action, 
confess  it,  or  let  judgment  go  by  default.  But  when  the  defendant  has 
merits,  he  should  prepare  for  his  defence ;  and  for  that  purpose  may,  if 
circumstances  render  it  necessary,  crave  oyer  and  copy  of  deeds,  &c.,  claim 
inspection  and  copies  of  written  instruments,  books,  court  rolls,  &c.,  or  call 
for  imrticulars  of  the  plaintiff's  demand ;  or  he  may  move  the  court  to 
change  the  venue,  consolidate  actions  unnecessarily  divided,  or  strike  out 
superfluous  counts ;  or  he  may  bring  money  into  court. 

Oyer  of  deeds,  &c.,  is  demandable  by  the  defendant,  or  by  the  plaintiff. 
If  the  plaintiff,  in  his  declaration,  necessarily  make  a  profert  in  curid  of 
any  deed,  writing,  letters  of  administration,  or  the  like,  the  defendant  may 
pray  oyer  of  the  deed,  &c.  ;{a)  and  must  have  a  copy  thereof  delivered  to 
him,  if  demanded,  paying  for  the  same  after  the  rate  of  four-pence  per 
sheet  :[h)  And  a  defendant,  who  prays  oyer  of  a  deed,  is  entitled  to  a  copy 
of  the  attestation,  and  names  of  the  witnesses,  as  well  as  of  every  other 
part  of  the  deed.(c)  So  likewise,  if  the  defendant  in  his  plea  make  a 
necessary  profert  in  curid  of  any  deed,  &c.,  the  plaintiff  may  pray  oyer  -.{d) 
and  shall  have  a  copy,  at  the  like  rate  :{e)  And  the  party,  of  whom  oyer 
is  demanded,  is  bound  to  carry  the  deed,  &c.,  to  the  adverse  party-(.f")  In 
an  action  on  a  bond,  in  which  ai'ticles  are  referred  to,  oyer  of  the  bond 
may  be  demanded,  but  not  of  the  articles  ;(</)  though  time  to  plead  may 
be  obtained,  till  the  plaintiff  give  a  copy  of  them,  on  an  aflidavit  that 
defendant  has  no  copy.(_9') 

Formerly,  all  demands  of  oyer  were  made  in  court,  where  the  deed  is  by 
intendment  of  law,  when  it  is  pleaded  with  a  profert  in  curid  ;{Ji)     And 
therefore,  when  oyer  is  craved,  it  is  supposed  to  be  of  the  court, 
and  *not  of  the  party;  and  the  words  ei  legitur  in  hccc  verba,  &c.,  [  *587  ] 
are  the  act  of  the  court.(aa)   In  practice,  however,  oyer  is  now  usu- 

(m)  2  Carapb.  121.     And  for  a  full  account  of  the  proceedings  under  this  statute,  see  1 
Wms.  Saund.  5  Ed.  58,  in  notis. 
(a)  Append.  Chap.  XXIII.  g  1. 
\b)  2  Salk.  407,  U.  T.     5  &>,  Geo.  II.  (6),  K.  B. 

\c)  Willes,  288.     Barnes,  3G3,  S.  C.  («f)  Append.  Chap.  XXIII.  J  2. 

(«)  R.  T.  5  &  6  Geo.  II.  (6),  K.  B.     6  Mod.  122. 
(/)  2  Durnf.  &  East,  40. 

{g)  Per  Cur.  H.  21  Geo.  III.  K.  B. ;  and  see  1  Wms.  Saund.  5  Ed.  9. 
ih\   12  Mod.  598.     3  Salk.  ll!t. 
\aa)   12  Mod.  598.     3  Salk.  119.     1  Sid.  308;  but  sec  2  Lutw.  1644,  contra. 


ggY  OF  OYER,  AND  COPY  OF  DEEDS,  ETC. 

ally  demanded,  and  granted  by  the  attorneys  :(6)[a]    And  where  the  defend- 
ant is  entitled  to  have  oyer  of  a  deed,  it  cannot  be  dispensed  with  by  the  court ; 

(/;)  G  Mod.  28. 

[a]  The  proper  mode  of  obtaining  oyer  is  by  prayer  entered  on  record,  to  which  the 
opposite  party  may  counterplead,  and  thereby  have  decision  of  the  court  whether  oyer  is 
to  be  givcu  or  not ;  Pendleton  v.  Bank  of  Kentucky,  1  Monr.  171.  Oyer  must  be  craved  and 
had,  to  put  a  record  before  the  court,  but  oyer  of  the  officer's  return  to  the  process  is  unne-!- 
cessary  ;  Commonwealth  v.  Roby,  12  Pick.  496.  Guild  v.  Richardson,  6  lb.  364.  Slayton  v. 
Chester,  4  Mass.  4T8.  So  where  oyer  is  craved  of  the  note  declared  on,  and  it  is  spread  upon 
the  record,  but  oyer  is  not  craved  of  the  indorsements,  the  indorsements  make  no  part  of 
the  record,  notwithstanding  the  clerk  may  have  copied  the  same  into  another  part  of  the 
record  ;  Siiggle  v.  Adams,  3  A.  K.  Marsh,  429.  WLean  v.  Oustott,  3  Pike,  478.  But  a  de- 
fendant who  craves  oyer  of  a  deed  is  entitled  to  a  copy  of  the  attestation,  and  to  the  names 
of  the  witnesses  ;  Smith  v.  Alworth,  18  Johns.  445.  If  he  is  entitled  to  oyer,  he  cannot  be 
compelled  to  plead  without  it.  But  if  he  elects  to  answer,  it  is  a  waiver  of  the  objection 
that  the  names  of  the  witnesses  were  not  given  in  the  oyer,  and  cannot  be  a  ground  of  de- 
murrer to  the  declaration  ;  lb. 

In  an  action  on  a  probate  bond,  the  court  will  not  grant  oyer  of  the  original  bond,  but 
order  a  copy  to  be  furnished  the  defendants  ;  Thatcher  v.  Lyman,  5  Mass.  260.  Judge  of 
Probate  v.  3Ierrill,  6  N.  Hamp.  256.  Oyer  is  not  demandable  of  a  record,  unless  it  be  a 
deed  enrolled,  letters  of  administration,  &c. ;  the  recital  of  a  record  must  be  taken  advan- 
tage of  by  plea  of  nul  tiel  record;  but,  if  a  record  be  correctly  set  out  in  a  scire  facias 
issued  upon  it,  and  does  not  show  the  liability  of  one  of  a  plurality  of  defendants,  perhaps 
a  several  demurrer  at  his  instance  should  be  sustained  ;  Hall  v.  State,  9  Ala.  827.  The 
profert  of  letters  of  administration  places  them  in  the  hands  of  the  court  of  whom  oyer  is 
craved,  and  not  of  the  party  ;  and,  being  in  possession,  the  court  must  be  assured,  by  an 
inspection  of  the  letters,  of  the  right  of  the  party  to  sue,  and  of  the  jurisdiction  of  the  court 
granting  them ;  Brown  v.  Jones,  10  Gill  &  Johns.  334.  Where  there  is  no  oyer  craved  of  a 
writing  mentioned  in  a  plea,  such  writing  does  not  constitute  a  part  of  the  record  ;  and  it 
will  be  taken  to  be  such  a  writing  as  it  is  described  in  the  plea  to  be  ;  Wriston  v.  Lacey,  7 
J.  J.  Marsh.  219.  Or,  where  a  record  is  the  ground  of  action,  the  declaration  must  refer  to 
it,  with  a.  prout  patet  per  recordum.  Aliter,  if  it  be  merely  inducement ;  Jarman  v.  Windsor, 
2  Harring.  162.  Neither  is  it  necessary  to  crave  oyer  of  the  capias  ad  respondendum ;  it  is  a 
part  of  the  record  without  it;  Pendleton  v.  Bank  of  Kentucky,  1  Monr.  171.  Nor  of  the  writ, 
it  being  part  of  the  record,  either  party  may  procure  a  copy ;  profert  of  it,  therefore,  is  not 
necessary  ;  and  it  is  no  more  necessary  for  the  other  party  to  crave  oyer,  in  order  to  obtain 
a  copy  ;  Renner  v.  Reed,  3  Pike,  339.  And  oyer  of  the  writ  (if  in  any  case  demandable,) 
cannot  be  craved  after  the  day  on  which  the  cause  is  first  set  for  trial ;  Layman  v.  Way- 
nick,  6  Blackf.  189.  Craving  and  obtaining  oyer  of  a  bond  makes  it  a  part  of  the  declara- 
tion ;  so  that  on  a  demurrer  the  court  will  give  judgment  against  a  plaintiff  in  whose 
bond  thus  produced  there  is  a  defect ;  Comrnissioncrs  v.  Gaines,  Const.  Rep.  459.  It  is  not 
necessary  to  make  profert  of  writings  not  under  seal ;  Mason  v.  Buckmaster,  Breese,  9.  All 
sealed  instruments  in  the  power  of  the  party  pleading  must  be  pleaded  with  a  profert ; 
Bender  v.  Sampson,  11  Mass.  42.  Powers  v.  Ware,  2  Pick.  451 ;  although  a  plaintiff  is  not 
bound  to  make  profert  of  a  deed  to  the  custody  of  which  he  has  no  legal  right ;  Birney  v. 
Haim,  2  Litt.  262.  In  an  action  of  debt  upon  a  bond,  where  the  original  is  filed  with  the 
clerk  of  the  court  there  to  remain  and  become  a  public  record,  as  in  the  case  of  a  trustee's 
bond  given  in  pursuance  of  a  decree  of  a  court  of  equity,  the  plaintiff  is  not  required  to 
make  a  profert  of  it,  not  being,  in  legal  contemplation,  in  the  possession  of  the  original ; 
Butler  V.  State,  5  Gill  &  Johns.  511.  Want  of  profert  of  the  deed  declared  on  is  ground  for 
general  demurrer;  MetcalfY.  Standeford,  1  Bibb,  618.  But  see  Anderson  v.  Barry,  2  J.  J, 
Marsh,  265.  Briggs  v.  Greenlee,  Minor,  123.  The  covenant  of  which  profert  is  made  is  not 
part  of  the  record,  without  oyer  ;  Gist  v.  Steele,  1  Bibb,  571.  Writing  proffered  is  not  part 
of  the  record  unless  oyer  is  taken ;  Adams  v.  Lacy,  lb.  328.  A  party  is  not  entitled  to  oyer 
where  there  has  been  no  profert ;  but,  if  it  has  been  asked  and  given,  he  may  make  use  of 
it ;  Story  v.  Kimball,  6  Verm.  541.  Oyer  of  a  bond  does  not  include  oyer  of  its  condition  ; 
nor  e  coiwerso.  If  oyer  is  wanted,  it  should  be  prayed  of  each  ;  but  the  plaintiff  may  have 
the  whole  bond  enrolled  ;  United  States  v.  Sayer,  1  Gallis.  86.  In  an  action  on  a  judgment, 
profert  of  the  record  is  unnecessary  ;  the  prout  patel  per  recordum  is  sufficient,  even  on 
special  demurrer  ;  Capp  v.  Gilman,  2  Blackf.  45.  If  profert  is  made  of  the  writing  declared 
on,  and  oyer  is  not  craved,  the  writing  must  be  taken  as  set  forth  in  the  declaration  ;  Pol- 
l-ard  V.  Yoder,  2  A.  K.  Marsh.  264.  But  oyer  cannot  regularly  be  craved  of  a  deed,  where  pro- 
fert is  not  made  Of  the  same  in  the  previous  pleading ;  Bettle  v.  Wilson,  14  Ohio,  257. 
Where  profert  is  necessary,  the  omission  must  be  taken  advantage  of  before  verdict ; 
Francis  v.  Uazlerig,  1  A.  K.  Marsh.  93.     If  oyer  be  not  taken  of  a  writing  declared  on,  it 


OF  OYER,  AND  COPY  OF  DEEDS,  ETC.  587 

nor  can  he  be  compelled  to  plead  without  it,(e)  even  though  the  deed  be  lost. 
Oyer  cannot  be  granted  of  a  deed  operating  under  tlie  statute  of  uses  :(tZ) 
And  where  a  tenant  in  a  writ  of  entry  j)leaded  such  deed,  without  a  jjro- 
fert^  and  oyer  was  required  to  be  granted  by  a  judge's  order  on  a  given 
day ;  the  court  directed  such  order  to  be  rescinded  ;  and  the  demandant 
having  signed  judgment  for  want  of  oyer,  it  was  also  set  aside,  the  order 
being  nifrely  in  thu  nature  of  an  interlocutory  pr<ice<'<liiig.((/)  When  the 
deed  is  in  the  hands  of  a  third  person,  the  court  will  oblige  him  to  give 
oyer  and  produce  it.(c) 

When  a  deed  is  shown  in  court,  it  remains  there,  in  contemplation  of  law, 
all  the  term  in  which  it  is  shown  ;  for  all  the  term  is  considered  in  law  but 
as  one  day :  and  at  the  end  of  the  term,  if  the  deed  be  not  denied,  the 
law  doth  adjudge  it  to  be  in  custody  of  the  party  to  whom  it  belongs ;  but 
if  it  be  denied,  then  it  shall  remain  in  court  till  the  plea  is  determined  :  and 
if  it  eventually  turn  out  not  to  be  a  good  deed,  it  shall  be  destroyed.!/) 
But  letters  testamentary,  or  of  administration,  are  not  supposed  to  remain 

(c)  2  Lil.  P.  R.  tit.  Oi/er,  2m.  1  Keb.  275.  G  Mod.  28.  2  Str.  1186.  1  Wils.  IG.  S.  C. 
Tottxf  V.  Nesbitt,  T.  24  Geo.  III.  K.  B.,  and  Mattiaon  v.  Atkinson,  E.  27  Geo.  III.  K.  B.,  cited  ia 
3  Durnf.  k  East,  153,(«).     R.  M.  1G54,  I  15.     C.  P.  Pr.  Reg.  277. 

(t/)  9  Moore,  503.  (c)  2  Str.  1198.     Ante,  Am. 

If)  Co.  Litt.  2:^1,  b.     5  Co.  74,  b.     2  Lutw.  1G44. 

forms  no  part  of  the  record,  though  eertitied  in  the  transcript;  Palmer  v.  M-Ginnis,  Hardin, 
505.  And  oyer  of  a  deed  set  forth  in  the  first  count  does  not  make  tiiat  deed  part  of  the 
record,  so  as  to  apply  it  to  other  counts  in  the  declaration  ;  Hughes  v.  Moore,  7  Cranch,  17t). 
And  where  profcrt  is  made  in  the  declaration,  tlie  actual  production  of  the  paper  is  indis- 
pensable ;  Moore  v.  Fentfick,  Gilman,  214.  A  iirofcrt  is  necessary  in  ))leading  a  deed  which 
is  necessary  ez  in.itilulione  Icyis,  and  the  omission  of  a  profert  in  such  case  is  fatal  on  special 
demurrer  ;  Brown  v.  Copp,  f)  X.  llamp.  2'.','i.  Profcrt  of  a  si)ccialty  is  not  necessary 
where  it  has  been  pleaded  and  remains  in  another  court,  or  in  tlie  same  court  in  anollicr 
action,  and  where  such  former  profcrt  has  been  averred  :  Moore  v.  Paul,  2  Bibb,  330. 
The  plaintiff  declared  upon  a  constable's  bond  and  made  profert  of  the  original ;  on  oyer 
craved  he  produced  a  copy,  and  the  defendant  demurred  tor  a  variance.  Held,  tiiat  the 
demurrer  was  sustuimible.  The  fact  that,  during  the  argument  of  the  demurrer  the  original 
was  brought  into  court,  would  make  no  difference  ;  Jo7iex  v.  Sitmnons,  4  Humph.  314.  Want 
of  profert  cannot  be  taken  advantage  of  after  judgment  by  default,  but  only  by  demurrer  ; 
Tucker  V.  Real  Estate  Bunk,  4  Pike,  429.  A  party  who  has  obtained  oyer  of  specialty 
may  waive  the  benefit  of  it  if  lie  please  ;  l)ut,  if  he  professedly  set  it  out  upon  tlu- 
record,  he  is  bound  to  recite  it  truly  and  entire.  If  he  do  not,  the  court  will,  on  motion, 
reject  such  pleadings,  and  give  judgment  tor  w'ant  of  a  plea,  unless  leave  is  obtained  to 
proceed  more  correctly;  Kudixill  v.  Sill,  4  Blackf.  282.  If  a  party  partially  states  a  deed, 
the  defendant  may  crave  oyer  of  the  deed  and  demur;  Ilohson  v.  MArt/iur,  3  M'Lean,  241. 
Where  a  party  is  bound  to  give  oyer  of  a  deed,  he  must  produce  cojnes  of  all  indorse- 
ments and  memoranda  upon  it,  and  all  pai)ers  annexed  to  it ;  Van  Rensselaer  v.  Boucher,  24 
Wend.  31G.  But  a  stranger  is  not  l)oun(l  to  give  oyer;  nor  tho?ie  wiio  become  privies  by 
the  acts  of  others,  or  operation  of  law  ;  lb.  Tlie  time  to  ti\kc  advantage  of  an  insuHicient 
comi)liance  with  t!ie  demand  for  oyer  is  at  tiic  trial,  and  not  by  motion  to  produce  the 
papers  tiiat  arc  wanted;  Brooks  v.  Brooks,  1  llalst.  404.  And  a  j)arty  can  demand  oyer 
of  a  bond  only  once  in  the  same  suit ;  Taijlor  v.  Bank  of  Kentuckt/,  2  J.  J.  Marsh.  .^G4. 
Oyer  need  not  to  be  given  of  an  instrument  that  is  lost ;  Paddock  v.  Jliggins,  2  Root,  482. 
Respiihlira  v.  Coates,  1  Yeates,  2.  But  see  Metcal/v.  Slandeford,  1  Bibb,  018.  Nor  need  it 
be  given  on  an  instrument  alleged  in  the  declaration  to  be  lost;  I'adduck  v.  Iliggins,  2  Root, 
31G.  Kelley  v.  Riggs,  lb.  12G.  But  it  is  no  excuse  upon  oyer  to  say  tliat  the  writing  is  lost, 
unless  the  plea  contains  also  a  good  excuse  for  not  having  it;  Branch  v.  Riln/,  1  lb.  541. 
In  Kentucky,  tlie  defendant  lias  a  right  to  oyer  of  any  writing  declared  on;  Anderson  v. 
Burr;/,  2  J.  J.  Marsh.  'It'i^i.  I'nder  the  statute,  in  Illinois,  it  is  necessary  for  the  party  to 
have  oyer  of  writings  not  under  seal,  on  which  suit  'S  brought,  as  he  is  bound  to  deny 
their  execution  under  oath  ;  Ma.ton  v.  Buckmaster,  Breese,  9.  And  although  oyer  at  common 
law  is  only  demandable  of  specialties,  the  statute  of  this  state  has  extended  the  rule,  and  it 
there  applies  to  any  writings,  (tiles  v.  Shaw,  Breese,  1G9.  It  has  also  been  there  held,  that, 
in  order  to  make  a  note  a  part  of  the  record,  so  as  to  enable  the  court  to  notice  it  for  any 
purpose,  tlie  defendant  should  crave  oyer;  Sims  v.  Ilugsby,  Breese,  Ap.  27. 


ratj  OF  OYER,  AND  COPY  OF  DEEDS,  ETC. 

in  court  all  the  term ;  for  the  party  may  have  occasion  to  produce  them 
elsewhere.(//)  Hence  it  is,  that  oyer  of  a  deed  cannot  in  strictness  be  de- 
manded, but  during  the  same  term  it  is  pleaded  :(/t)  And  as  a  general 
imparlance  is  always  to  a  subsequent  term,  it  follows  that  oyer  of  a  deed 
cannot  be  demanded  after  such  imparlance. (^)  A  different  doctrine  is  in- 
deed laid  down  in  one  case, (A:)  which  must  be  understood  of  a  special  im- 
parlance,''^to  another  day  in  the  same  term. 

Though  oyer  is  not  in  strictness  demandable  of  a  record,{l)  yet  if  a  judg- 
ment or  other  matter  of  record  in  the  same  court  be  pleaded,  the  party 
pleading  it  must  give  a  note  in  writing  of  the  term  and  number  roll,  whereon 
such  judgment  or  matter  of  record  is  entered  and  filed ;  or  in  default 
thereof,  the  plea  is  not  to  be  received  :{m)  And  probably  on  this  account, 
the  party  was  not  anciently  permitted  to  plead  nul  tiel  record  of  a  judg- 
ment or  matter  of  record  in  the  same  court.(w)     But  where  a  judgment 

or  matter  of  record  is  pleaded  in  a  different  court,  the  party,  not 
[  *588  ]  being  *entitled  to  an  account  of  the  term  and  number  roll,  must 

plead  nul  tiel  record.     And  it  seems,  that  oyer  is  not  demandable 
of  an  act  of  parliament,  (a) 

The  defendant  was  formerly  allowed  oyer  of  the  original  writ,  in  order 
to  demur  or  plead  in  abatement,  for  any  apparent  insufficiency  or  vari- 
ance. (6  J)  But  this  indulgence  having  been  abused,  and  made  an  instru- 
ment of  delay,  a  rule  was  made,  that  a  defendant  be  not  allowed  oyer  of 
an  original  writ ;  and  that  if  he  demand  it,  the  plaintiff  may  proceed  as  if 
no  demand  had  been  made.(c) 

The  demand  of  oyer  is  a  kind  of  plea  ',{d)  and  should  regularly  be  made 
by  a  note  in  writing,(e)  before  the  time  for  pleading  is  expired.(/)  If  it 
be  not  made  till  after  that  time,  the  plaintiff  may  consider  the  demand  as 
a  nullity,  and  sign  judgment.  But  though  oyer  be  not  in  strictness  demand- 
able,  yet  if  it  be  given,  the  party  demanding  has  a  right  to  make  use  of 
\t.{gg)  If  the  defendant  would  insist  upon  his  demand  of  oyer,  he  should 
move  the  court  to  have  it  entered  upon  record  :{Ji]i)  If  the  plaintiff,  on  the 
other  hand,  would  contest  the  oyer,  he  may  either  counterplead  it,  or  strike 
out  the  rest  of  the  pleading  and  demur  ;(m)  upon  which  the  judgment  of  the 
court  is,  either  that  the  defendant  have  oyer,  or  that  he  answer  without 

(g)  2  Salk.  497.     12  Mod.  598,  S.  C. 

(h)  5  Co.  74,  b.     2  Lutw.  1644.    1  Durnf.  &  East,  149.     Steph.  PI.  88. 

{i)  1  Keb.  32.  2  Lev.  142.  Freem.  400.  3  Keb.  480,  491,  S.  C.  6  Mod.  28  ;  but  see  2 
Ld.  Raym.  970.     Ante,  462,  3. 

Ik)   12  Mod.  99  ;  and  see  2  Show.  310. 

{I)  1  Ld.  Raym.  252,  347,  (4  Ed.  note  a.)  Doug.  476,  7.  1  Durnf.  &  East,  149,  50  ;  but 
see  1  Ld.  Raym.  84. 

(m)  Keilw.  96,  Garth.  454.  1  Ld.  Raym.  347,  Garth.  517.  1  Ld.  Raym.  550.  2  Str.  823. 
R.  T.  5  &  6  Geo.  11.(6).  K.  B. 

(n)  5  Hen.  VIL  24,  jocr  ^rwra.     3  Keb.  76.  (a)  Doug.  476.     Godb.  186,  contra. 

(bb)  Gilb.  G.  P.  52.  12  Mod.  35,  189.  2  Lutw.  1644.  6  Mod.  27.  2  Salk.  498.  2  Ld. 
Raym.  970.  R.  T.  5  &  6  Geo.  IL  (6),  K.  B.  1  Wils.  97.  6  Durnf.  &  East,  363.  Co.  Eut. 
320.     5  Taunt.  653,  (a). 

(c)  R.  T.  19  Geo.  IIL  K.  B.  Doug.  227,  8.  6  Durnf.  &  East,  363.  Barnes,  340  ;  and 
see  Bro.  Abr.  tit.  Oyer,  pi.  19. 

(d)  3  Salk.  119.  {e)  N.  M.  1  Geo.  IL  C.  P. 

(/)  Fowler  ^  Dyer,  M.  20  Geo.  IIL  K.  B.  1  Durnf.  &  East,  150.  Barnes,  268,  326,  7. 
2  Bos.  &  PuL  379  ;  but  see  Cas.  Pr.  C.  P.  72,  3,  96.  Pr.  Reg.  278,  299,  S.  C.  Barnes,  329. 
2  Wils.  413  ;  by  which  it  appears,  that  formerly  oyer  must  have  been  demanded,  in  the 
Common  Pleas,  before  the  expiration  of  the  rule  to  plead :  and  vide  ante,  469. 

(gg)  Doug.  476,  7  ;  and  see  1  Wms.  Saund.  5  Ed.  317,  (2).  {hh)  6  Mod.  28. 

(u'j  2  Lev.  142.     2  Salk.  497  ;  and  see  2  Ld.  Raym.  970.     1  Wms.  Saund.  5  Ed.  9,  c. 


OF  OYEE,  AND  COPY  OF  DEEDS,  ETC.  5g3 

it  :{k)  On  the  latter  judgment,  the  defendant  may  bring  a  writ  of  error ; 
for  to  deny  oyer  where  it  ought  to  be  granted  is  error,  but  not  <?  co7i- 
t;er«o.(Z)[A] 

There  is  no  settloil  time  prescribed  for  tlie  phiintiff  to  give  oyer  \[ni)  but 
the  defendant  shall  in  all  cases  have  the  same  time  to  plead,  or  as  many 
pleading  days  after  oyer  given,  as  he  had  at  the  time  of  demanding  it:(7j) 
The  time  allowed  for  the  defendant  to  give  oyer  of  a  deed,  &c.  to  the 
plaiiitilf,  is  two  days  exclusive  after  it  is  domande<l  :{o)  and  if  it  be  not  given 
in  that  time,  the  plaintiffmay  sign  Judgment,  as  for  want  of  a  plca.f^/)  If 
given,  the  plaintift'  shall  have  the  same  time  to  reply,  after  oyer  given  him 
by  the  defendant,  as  he  had  at  the  time  of  demanding  it.(^) 

*The  defendant  having  demanded  oyer  of  a  deed,  ought  to  in-  [  *589  ] 
sert  it  at  the  head  of  his  plea;  and  if  he  do  not,  the  plaintiff,  in 
the  Common  Pleas,  may  insert  it  there  for  him,  in  making  up  the  issue  -.{a) 
but  it  is  otherwise  in  the  King's  Bench,  where  the  defendant  may  either 
set  forth  the  oyer  in  his  plea  or  not,  at  his  election. (6)  If  a  plaintiff  state 
the  legal  effect  of  a  deed,  the  defendant  has  a  right  to  see  it  on  oyer ;  and 
if  the  meaning  vary  from  that  attributed  to  it  in  the  declaration,  he  should, 
in  order  to  take  advantage  of  the  variance,  plead  non  est  factum,  without 
setting  out  the  deed :  If  it  do  not  support  the  breach,  he  should  set  it  out 
and  demur  :(c6')  and  if  he  set  it  out,  the  court  must  adjudge  upon  it,  as 
parcel  of  the  record  ;  though  it  was  not  strictly  demandable  at  the  time  of 
granting  it.{d)  If  the  defendant,  however,  set  out  the  deed  on  oyer,  and 
plead  non  est  factum,  the  only  question  at  the  trial  of  that  issue  is,  whether 
the  deed  whereof  the  tenor  is  set  out,  was  executed  by  the  defendant  or 
not.(e)  But  the  defendant,  in  the  King's  Bench,  is  not  bound  to  set  forth 
the  oyer  in  his  plea ;(/)  and  if  he  do  not,  the  plaintiff,  if  he  would  avail 
himself  of  the  deed,  must  pray  it  to  be  inrollcd  at  the  head  of  his  re])lica- 
tion.(^g)  If  the  defendant,  after  craving  oyer  of  a  deed,  do  not  set  forth 
the  whole  of  it,  the  plaintiff,  we  have  8een,(A)  may  sign  judgment  as  for 
want  of  a  plea  ;  but  he  cannot  demur  for  that  cause  :{{)  or  if  the  defendant, 
in  his  plea,  set  out  the  deed  untruly,  the  plaintiff  by  his  replication  may 
pray  that  it  be  inrollcd,  and  so  procure  it  to  be  truly  set  forth  :{kk)  And 
if  there  be  any  variance,  however  trifling,  between  the  deed  and  the  oyer, 
it  is  fatal  at  the  trial,  on  the  plea  of  won.  est  factum. [11)1^] 

(k)  2  Lev.  142. 

(Z)  2  Salk.  497.  6  Mod.  28.  2  Ld.  Ravm.  970,  S.  C.  2  Str.  118G.  1  Wils.  10,  S.  C.  1 
Wms.  Saund.  5  Ed.  9,  c.     2  Wms.  Saund.'s  Ed.  46,  b.  (7). 

(m)  It  seems  from  the  rule  of  Mich.  1654,  ^  15,  C.  P.,  that  it  ought  to  be  given,  in  the 
Common  Pleas,  before  the  end  of  the  next  term  after  it  is  demanded. 

(n)  1  Str.  705,  R.  T.  5  &  6  Geo.  II.  (6).  K.  B.  8  Durnf.  &  East,  356,  7.  Cas.  P.  R.  C.  P. 
72,  81,  2  ;    143.     Pr.  Reg.  28,  300,  301.     Barnes,  238,  254,  S.  C.     Ante,  468. 

(o)  Garth.  455.     2  Durnf.  &  East,  40. 

(p)  6  Mod.  122.     Cas.  Pr.  C.  P.  95.     Pr.  Reg.  301.     Barnes,  245,  S.  C. 

(q)  R.  T.  5  &  6  Geo.  II.  (b),  K.  B.  And  see  further  as  to  ot/tr,  and  such  points  in  parti- 
cular  respecting  it  as  relate  to  pleading,  1  Chit.  PI.     4  Ed.  369,  Ac.     Steph.  Pi.  86,  &c. 

(a)  Barnes,  327.  (b)  2  Str.  1241.     1  Wils.  97  ;  and  see  Steph.  J'l.  88,  9. 

(cr)  4  Barn.  &  Cres.  749,  50.     7  Dowl.  &  Rvl.  257,  R.  C.  per  Bayley,  J. 

(d)  3Salk.  119.     Carth.  613.     6  Mod.  27.  'Doug.  476. 

((!)  4  Barn.  &  Cres.  741  ;  and  see  11  East,  633.     5  Taunt.  707. 

(/)   2  Str.  1241.     1  Wils.  97;  but  see  Barnes,  327,  C.  P.  contra. 

f. .7)   2  Str.  1241.     1  Wils.  97.  {h)  Ante,  b^\5.  (t)  2  Salk.  602. 

{kk)  Com.  Dig.  tit.  Pleader,  P.  1.  (//)  1  Marsh,  214. 


[A] 


See  accord.  State  v.  Ilicks,  2  Black.  33  6. 
See  Troub.  k  Haly's  Pract.  p.  362,  3d  ed. 


^gg  OF  INSPECTION,  AND  COPIES 

In  the  King's  Bench,  when  the  plaintiff  is  entitled  to  the  inspection  of  a 
lease,  &c.,  in  the  possession  of  the  defendant,  but  of  which  oyer  cannot  be 
domiuuled,  the  court  will  grant  a  rule  for  the  latter  to  produce  it,  and  give 
a  copy  thereof  to  the  plaintiff,  in  order  that  he  may  declare  thereon. (m) 
And  where  the  plaintiff,  in  an  action  on  a  deed,  has  had  the  same  taken 
from  him  under  a  warrant  against  him  for  felony,  the  court,  on  an  affidavit 
of  demand  upon  and  refusal  by  the  magistrate  and  constable,  will  direct 
them  to  give  the  plaintiff  a  copy  to  declare  on,  and  to  produce  the  deed  on 
the  trial,  the  plaintiff  undertaking  to  pay  the  expenses.(w)     But  the  court 

will  confine  their  order  for  inspection  of  a  deed,  to  the  particular 
[  *590  ]  parts  of  it  which  are  necessary  to  support  the  action. (o)     And 

they  will  *not  compel  a  party  to  allow  the  inspection  of  his  title 
deeds,  and  give  a  copy  thereof,  to  a  person  who  supposes  that  such  deeds 
contain  a  reservation  in  his  favour  of  manorial  rights,  unless  it  appear  that 
the  party  holds  the  deeds  as  trustee  for  the  applicant,  (a)  In  the  Common 
Pleas,  if  one  part  only  of  an  indenture  be  executed,  the  court  will  compel 
the  party  having  the  custody  of  it  to  produce  it  for  inspection,  upon  an 
action  commenced  against  him  by  the  other  party  ;  unless  he  can  show  some 
sufficient  reason  to  the  contrary  :(J)  And  it  is  not  a  sufficient  reason,  that 
the  plaintiff  seeks  for  inspection,  for  the  purpose  of  discovering  some  defect 
in  the  deed.((7)  So,  where  the  plaintiff  made  an  affidavit,  that  he  sued  the 
defendant,  to  recover  damages  for  breach  of  an  agreement  in  not  entering 
into  partnership,  pursuant  to  a  partnership  deed  drawn  up  and  executed  by 
the  plaintiff,  but  remaining  in  the  custody  of  the  defendant  or  his  attorney, 
and  that  the  plaintiff  possessed  neither  a  copy  nor  counterpart  of  the  deed, 
the  court  granted  a  rule,  enabling  the  plaintiff  to  inspect  and  take  a  copy 
of  the  deed,  although  the  defendant  swore  that  he  had  not  executed  the 
same.(c?c?)  But  where  two  parts  of  an  indenture  were  executed  by  both 
parties,  each  keeping  one,  and  one  part  was  lost,  the  court  of  Common 
Pleas  would  not  compel  the  other  party  to  produce  his  part,  in  order  to 
support  an  action  against  him  on  the  instrument  \{e)  So,  upon  an  affidavit 
that  no  copy  or  counterpart  of  a  lease,  on  which  the  plaintiff  had  sued, 
was  in  his  possession  or  power,  and  that  the  attorney  who  drew  the  lease 
and  counterpart  had  absconded ;  the  court  refuse  to  order  the  defendant, 
who  was  in  possession  of  the  lease,  to  permit  a  copy  of  it  to  be  taken. (/) 
And  inspection  was  refused  in  that  court,  to  the  plaintiff  in  replevin,  of  a 
deed  to  which  he  was  no  party,  assigning  to  the  avowant  the  reversion  of 
the  demised  premises.(^)  In  the  King's  Bench,  we  have  seen,(7i)  the  plain- 
tiff may  have  a  rule  nisi,  for  the  defendant  to  produce  a  deed  before  the 
commissioners  of  the  stamp  office,  to  be  stamped  ;  or  to  the  plaintiff's  attor- 
ney, in  order  that  he  may  ascertain  the  names  of  the  witnesses,  so  as  to 
subpoena  them.  And  a  rule  for  the  production  of  a  deed  to  be  stamped, 
has  been  granted  by  the  court  of  Common  Pleas  :(i)  though,  in  a  former 

(m)  Ante,  487. 

(n)   2  Chit.  Rep.  229.  (o)  Id.  231. 

(a)  1  Barn.  &  Ores.  262.     2  Dowl.  &  Ryl.  386,  S.  C. 

(6)   1  Taunt.  386 ;  and  see  1  Moore,  465.     8  Taunt.  131.     2  Moore,  513,  (a),  S.  0. 
(r)  4  Taunt.  636. 

{dd)   1  Bred.  &  Bing.  318.     3  Moore,  671,  S.  C. ;  and  see  7  Barn.  &  Cres.  204. 
{f)  6  Taunt.  302.     1  Marsh.  610,  S.  C. :  and  see  2  Younge  &  J.  4,  accord, 
if)  4  Bing.  152. 

(g)  6  Taunt.  283;  and  see  1  Chit.  Rep.  476.     9  Moore,  778.     3  Bing.  148.     1  Moore  &  P. 
396.     4  Bing.  537,  S.  C.     Id.  539,  (a).     Post,  592. 

(h)  Ante,  481.  (i)  4  Taunt.  157;  and  see  5  Moore,  71. 


OF  WRITTEN  INSTRUMENTS.  590 

case,  that  court  refused  to  make  a  rule  on  the  plaintiff,  in  an  action  on  a 
bond,  to  allow  an  officer  of  the  stamp  duties  to  inspect  the  bond,  because 
the  defendant  suspected  it  to  be  fur«:c(l.(^) 

If  the  action  be  founded  on  a  written  instrument,  not  under  seal,  the 
defendant  is  not  entitled  to  deniiind  oyer  ;  but  the  distinction  formerly  taken 
was,  that  where  the  plaintiff  declared  upon  a  writing,  the  courts,  on  aflidavit 
that  he  had  no  part,  would  let  him  have  a  copy  ;  but  where  the 
declaration  was  on  an  agreement  generally,  and  the  writing  but  [  *51*1  ] 
*evidcnce,  they  would  not  grant  it  :((/)  and  accordingly,  wiiere  an 
action  was  brought  upon  a  special  agreement  contained  in  a  note,  and  a  ndo 
made  to  show  cause  why  the  plaintiff  should  not  give  the  defendant  a  copy  ; 
upon  cause  shown,  the  rule  was  discharged,  because  the  contract  upon  wliich 
the  action  was  founded  was  a  parol  contract,  of  which  the  note  was  only 
evidence,  and  therefore  the  defendant  ought  not  to  have  a  copy.(/»)  Jn 
actions  upon  policies  of  assurance,  the  plaintiff,  his  attorney  or  agent,  by  the 
statute  1!>  Geo.  II,  c.  87,  §  G,  "shall,  witliin/(/Vr'('?i days  after  being  required 
80  to  do  in  writing  by  the  defendant,  his  attorney  or  agent,  declare  in 
writing  what  sums  he  hath  assured,  or  cause  to  be  assured,  in  the  whole, 
and  what  sums  he  hath  borrowed  at  respondentia  or  bottomree  for  the 
voyage,  or  any  part  of  it:"  And,  in  actions  of  this  nature,  a  judge  at 
chambers  will  make  an  order  for  the  assured  to  produce  to  the  underwriters, 
upon  affidavit,  all  papers  in  possession  of  the  former,  relative  to  the  matters 
in  issue. (<•)  But  under  a  judge's  order  to  produce  papers,  and  give  copies 
of  letters,  &c.  it  is  sufficient  to  give  extracts  of  those  parts  of  them  wliich 
are  relevant  to  the  subject. (t?)  By  the  statute  53  Geo.  III.  c.  141,  §  5, 
"  the  grantor  of  an  annuity  is  entitled  to  a  copy  of  every  deed,  &c.  whereby 
it  was  granted ;  and  if  not  delivered  within  twenty  one  days  after  notice,  a 
summons  may  be  taken  out  from  a  judge  of  the  King's  Bench  or  Common 
Pleas,  and  an  order  obtained  thereon,  for  the  production  of  such  deed,  &c. 
and  for  suffering  the  complainant  to  take  copies  thereof,  and  examine  the 
same."  In  other  cases,  the  general  rule  is,  that  a  plaintiff  shall  not  be 
obliged  to  furnish  evidence  against  himself.(g)  And  the  court  of  King's 
Bench  would  not  compel  the  plaintiff  to  deliver  to  the  defciulant  a  cojiy  of 
an  agreement,  in  order  to  enable  the  latter  to  plead  in  abatement,  that  the 
agreement  was  signed  jointly  by  himself  and  others. (/)  But  wliere  the 
action  is  founded  on  a  written  instrument,  as  a  bill  of  exchange  or  promis- 
sory note,(^)  special  agreement,  or  undertaking  in  writing  to  pay  the  debt 
of  a  third  person, (A)  &c.  if  a  special  ground  be  laid,  as  that  the  demand  is 
of  long  standing,  and  the  defendant  has  no  copy  of  the  instrument,  or  that 
there  is  reason  to  suspect  its  being  forged,  &c.  the  court  on  motion,  or  a 
judge  on  sunmions,  will  make  an  order  for  the  delivery  of  a  coj)y  of  it  to 
the  defendant  or  his  attorney,  and  that  all  proceedings  in  the  action  be  in 
the  meantime  stayed.  In  a  late  case,  however,  the  court  of  Common  Pleas 
would  not  compel  the  defendant  to  produce  bills  of  exchange  on  which  the 
action  was  brought,  and  permit  the  plaintiff  to  take  copies  of  them,  upon 
an  affidavit,  which  was  contradicted  by  the  defendant,  that  the  bills  had 

(;fc)   1  Bos.  &  Pul.  2T1.  (a)2Keb.  430.     1  Sid.  386. 

(h)   1  Salk.  215.  (f)   1  Camp.  5G2. 

\d)  1  Taunt.  167. 

(e)  1  Chit.  Rep.  476.     9  Moore,  778.     Post,  592. 

(/•)  2  Dowl.  &  Ryl.  419.  [g)   7  Moore,  559.     1  Bing.  161,  iS.  C. 

(h)  Barry  v.  Alexander,  M.  25  Geo.  III.  K.  B. 

Vol.  1.-2,1 


591 


OF  INSPECTION,  AND  COPIES 


come  into  his  hands  by  fraud,  and  had  not  been  satisfied. (^)  And,  in  an 
action  on  a  bill  of  exchange,  that  court  would  not  compel  the 
[  *592  ]  plaintift'  to  deposit  the  bill  in  the  hands  of  the  prothonotary,  *for 
the  purpose  of  enabling  the  defendant  to  inspect  it,  in  order  to  see 
whether  or  no  it  was  a  forgery.(a)  When  the  copy  of  an  agreement  is  de- 
livered to  the  defendant,  in  pursuance  of  a  judge's  order  for  that  purpose, 
the  judge,  it  is  said,  will  in  general  make  it  a  part  of  the  order,  that  the 
defendant  shall  consent  to  make  no  objection  to  the  stamp. (6) 

Where  the  defendant  has  the  custody  of  a  written  instrument,  which  he 
holds  as  a  trustee,  the  courts  will  in  some  instances  order  him  to  give  an  in- 
spection and  copy  of  it  to  the  plaintiff,  at  his  expense,  and  to  produce  it  for 
various  purposes  :  Thus,  where  the  defendant  was  a  stake-holder,  the  court 
ordered  him  to  give  the  plaintiff,  at  his  expense,  a  copy  of  the  articles  for 
Epsom  races,  and  to  produce  the  same  at  the  trial. (c)  So,  where  an  action 
is  brought  by  a  sailor  for  his  wages,  on  ship's  articles,  against  the  captain  in 
whose  custody  they  are,  it  seems  that  under  the  equity  of  the  statute  2  Geo. 
II.  c.  36,  §  8,  the  defendant,  if  required,  must  produce  and  give  a  copy  of 
the  articles. ((Z)  And  where  the  dispute  was  between  the  plantiff  a  factor  in 
Smithfield,  and  the  defendant  a  grazier,  the  court  of  King's  Bench,  upon 
the  defendant's  motion,  made  a  rule  for  the  plaintiff  to  show  cause,  why  he 
should  not  produce  at  the  trial,  the  several  books  wherein  he  entered  the  ac- 
count of  beasts  sold,  and  of  moneys  received,  on  the  defendant's  account ; 
and  no  cause  being  shown,  the  rule  was  made  absolute. ((^e)  So,  in  an  action 
against  a  sworn  broker  of  the  city  of  London,  for  negligence  in  making  a 
contract,  the  court  will,  on  motion,  compel  him  to  produce  his  books,  in 
order  to  enable  the  plaintiff  to  inspect  and  take  a  copy  of  the  contract ;  7 
Barn.  &  Ores.  204,  but  see  1  Moore  &  P.  537,  539, (a)  semb  contra.  The 
rule  laid  down  by  Lord  Mansfield  in  cases  of  this  nature  was,  that  when- 
ever the  defendant  would  be  entitled  to  a  discovery,  he  should  have  it  here, 
without  going  into  equity. (^■)  And  on  a  motion  in  trover,  for  inspection 
of  lists  of  sales,  the  question  being  whether  the  goods  were  included  in  those 
sales,  it  was  said  by  Buller,  J.  "the  proper  way  is  to  move  for  a  rule  to 
show  cause,  why  the  defendant  should  not  have  time  to  plead  till  the  next 
term,  unless  the  plaintiff  will  give  the  inspection  required  ;  and  the  reason 
for  granting  such  time  is,  that  the  party  may  have  the  thing  granted  by  ap- 
plying to  a  court  of  equity  ;  and  therefore  the  court  will  give  time,  till  he 
can  file  his  bill  for  that  purpose  :"  and  a  rule  to  show  cause  was  granted  ac- 
cordingly.(^)  _ 

The  courts  in  general  will  not  oblige  a  plaintiff  to  discover  the  evidence 
in  support >of  his  action,  previous  to  the  trial ;  and  therefore,  they  will  not 
make  a  rule  upon  him  to  produce  his  books, (A)  &c. :  Nor  can  a  rule  be  had 
for  the  inspection  of  books,  &c.  of  a  private  nature,  in  the  hands  of  third 
persons,  (n)  [a]  So,  where  a  commission  of  bankrupt  had  been  sued  out  against 

(i)   1  Bing.  161.     T  Moore,  559,  S.  C.  (a)   1  Bing.  451.     8  Moore,  586,  S.  C. 

(6)  1  Car.  &  P.  AQQ,per  Park,  J.  (c)  Barnes,  439. 

{d)  Abbott  on  Shipping,  389.     1  Taunt.  386. 
(ee)  2  Str.  1130;  and  see  5  Moore,  71. 
(/)  Barry  v.  Alexander,  M.  25  Geo.  III.  K.  B. 
{g)    Witter  v.  Cazalets,  M.  29  Geo.  III.  K.  B. 

(A)  6  Mod.  264.     1  Chit.  Rep.  4T6.     9  Moore,  VtS  ;  but  see  4  Bur.  2489. 
(n)  1  Ld.  Raym.  Y05.    2  Ld.  Raym.  927.     1  Barnard.  K.  B.  466.    Barnes,  236.    Cas.  tmp. 
Eardw.  130.     2  Blac.  Rep.  850. 

[a]  "  The  production  of  private  writings,  in  which  another  person  has  an  interest,  may  be 


OF  WRITTEN  INSTRUMENTS.  592 

the  plaintiff  and  supersodcd,  as  being  founded  on  a  cnncortcd  act  of  bank- 
ruptcy, and  a  second  coniniiswion  was  issued,  and  the  plaint ift"l)rou;^ht  tres- 
pass against  the  messenger  to  try  its  validity  ;  the  court  of  Con)nion  Pleas 
would  not  order  the  bankrupt's  books  to  be  produced  to  the 
*assignees  under  the  second  commission,  on  an  application  by  the  [  *593  ] 
defendant ;  as  such  application  should  have  been  nuide  to  the  Lord 
Chancellor  in  the  first  instance. (a)  So,  in  an  action  for  goods  sold  and  de- 
livered, the  court  of  King's  Bench  would  not  compel  a  defendant  to  allow 
an  inspection  of  the  goods,  to  enable  the  plaintiff  to  give  evidence  of  their 
identity,  kc.{b)  And  in  an  action  for  freight  and  dennirrage,  by  ship  own- 
ers against  the  charterer,  the  court  of  Common  Pleas  would  not  grant  the 
latter  an  inspection  of  the  log-book  kept  during  the  voyage.  1  Mottre  &,  P. 
396.  4  Bing.  537,  S.  C,  but  see  id.  539,(^)2  Younge  .^  J.  4.  But  it  is  a 
general  rule,  that  a  party  has  a  right  to  inspect  and  take  c<ij)ies  of  such 
books  &c.  as  are  of  a  public  nature,  wherein  he  has  an  interest ;  [a]  so  as  they 

(a)  7  Moore,  400.  (i)  6  Dowl.  &  Hyl.  388. 

hiiJ  citlier  by  a  bill  of  discovery,  in  proper  cases,  or,  in  trials  at  law,  by  a  writ  of  nuLpwiia 
duces  It'cuin,  directed  to  the  person  who  has  them  in  his  possession.  The  courts  of  Conitnon 
Law  may  also  make  an  order  for  the  inspection  of  writings  in  the  possession  of  one  party  to 
a  suit,  in  favour  of  the  other.  The  extent  of  this  power,  and  the  nature  of  the  order, 
■whether  it  should  be  peremptory,  or  in  the  shape  of  a  rule  to  enlarj^e  the  time  to  plead, 
unless  the  writing  is  produced,  does  not  seem  to  be  very  clearly  agreed  ;  and  in  the  United 
States,  the  courts  have  been  unwilling  to  exercise  the  power,  except  where  it  is  given  by 
Statute.  It  seems,  however,  to  be  agreed,  that  where  the  action  is  ex  contractu,  and  there 
is  but  one  instrument  between  the  parties,  which  is  in  the  possession  or  i)ower  of  the  de- 
fendant, to  which  the  plaiutill' is  either  an  actual  party,  or  a  party  in  interest,  and  of  which 
he  has  been  refused  an  inspection,  upon  request,  and  the  production  of  which  is  necessary 
to  enable  him  to  declare  against  the  defendant,  the  court,  or  a  judge  at  chambers,  may 
grant  him  a  rule  on  the  defendant  to  produce  the  document,  or  give  him  a  copy  for  that 
purpose.  Such  order  may  also  be  obtained  by  the  defendant,  on  a  special  case,  such  as,  if 
there  is  reason  to  suspect  that  the  document  is  forged,  and  the  defendant  wishes  that  it 
may  be  seen  by  himself  and  his  witnesses.  But  in  all  such  cases,  the  application  should  be 
supported  by  the  affidavit  of  the  party,  particularly  stating  the  circumstances. 

"When  the  instrument  or  writing  is  in  the  hands  or  power  of  the  adverse  party,  there 
arc,  in  general,  no  means  at  law  of  compelling  them  to  produce  it;  but  the  pn.ctii-e  in  such 
cases  is,  to  give  him  or  his  attorney  a  regular  notice  to  produce  the  original.  Not  that,  on 
proof  of  such  notice,  he  is  compellable  to  give  evidence  against  himself,  but  to  lay  a  founda- 
tion for  the  introiluction  of  secondary  evidence  of  the  contents  of  the  document  or  writing, 
by  showing  that  the  party  has  done  all  in  his  power  to  produce  the  original.''  1  Grcenl.  on 
Evid.,  g  559,  560. 

[a]  "In  regard  to  the  inspection  of  public  documents,  it  has  been  admitted,  from  a  very 
early  period,  that  the  inspection  and  exemplification  of  the  records  of  the  King's  ('ourts  is 
the  common  right  of  the  subject.  This  right  was  extended,  by  an  ancient  statute,  40  Ed. 
3,  in  the  i)reface  to  3  Coke's  Rep.  p.  iv.,  to  cases  where  the  subject  was  <-nncerned  against 
the  king.  The  exercise  of  this  right  does  not  ajjpear  to  have  been  restraineil,  until  the  reign 
of  Charles  M.,  when  in  consequence  of  the  freijuency  of  actions  for  malicious  prosecutions, 
which  couhl  not  be  supported  without  a  copy  of  the  record,  the  judges  made  an  order  for 
the  regulation  of  the  sessions  at  the  Old  Bailey,  prohibiting  the  granting  of  any  cnpj  of  an 
indictment  for  felony,  without  a  special  order,  upon  motion  in  open  court,  at  the  general 
gaol  delivery.  This  order,  it  is  to  be  observed,  relates  only  to  indictments  for  felony.  In 
cases  of  misdemeanor  the  right  to  a  copy  has  never  been  questioned.  But  in  the  I'nited 
States  no  regulation  of  this  kind  is  known  to  have  been  expressly  made:  and  any  limitatioa 
of  the  right  to  a  copy  of  a  judicial  record  or  paper,  when  applied  for  liy  any  person  having 
an  interest  in  it,  would  prol)ably  be  deemed  repugnant  to  the  genius  of  American  Institu- 
tions. 

"Where  the  writs  or  other  papers  in  a  cause  arc  officially  in  the  cnstody  of  an  officer  of 
the  court,  he  may  be  compelled  by  a  rule  of  court,  to  allow  an  inspection  of  them,  even 
though  it  be  to  furnish  evidence  in  a  civil  action  against  himself.  Thus,  a  rule  was  granted 
against  the  marshal  of  the  King's  Bench  prison,  in  an  action  against  him  for  an  escape  of 
one  arrested  upon  meme  prorexi^,  to  permit  the  plaintiff's  attorney  to  inspect  the  writ  by 
which  he  was  committed  to  his  custody. 


ggg  OF  INSPECTION,  AND  COPIES 

bo  niatcri.-il  to  the  suit,  and  the  party  in  possession  be  not  obliged  to  furnish 
evidence  against  himself  in  a  criminal  prosecution  ;(6')  and  if  they  are  not 
evidence  of  themselves,  the  courts  will  order  them  to  be  produced  at  the 
trial  ;((i)  otherwise  a  copy  is  sufficient.  And  they  will  never  make  a  rule 
to  produce  the  original,  unless  it  be  necessary  to  inspect  it,  on  account  of  an 
erasure  or  new  entry. (e) 

The  books  of  tlie  Quarter  Sessions  have  been  considered  as  public  books, 
which  every  one  has  a  right  to  inspect. (/)  And  every  man  has  a  right  to 
inspect  the  proceedings  to  which  he  is  himself  a  party  ;{g(i)  for  he  has  an 
interest  in  such  proceedings.  So,  in  an  action  for  a  malicious  prosecution, 
where  it  was  necessary,  in  order  to  support  the  action,  that  the  plaintiff 
should  be  put  in  possession  of  the  contents  of  examinations  before  justices, 
and  of  the  warrant  on  which  he  was  apprehended,  the  court  granted  a  rule 
that  they  might  be  inspected,  and  copies  taken,  and  the  originals  produced 
on  the  trial. (A)  But  upon  an  indictment  for  felony,  it  is  not  usual  to  grant 
a  copy  of  the  record  of  acquittal,  where  there  is  any  the  least  probable 
cause  for  the  prosecution. (e)  And  a  mandamus  will  not  lie,  to  compel  a 
magistrate  to  produce  depositions  taken  before  him  on  a  charge  of  felony, 
for  the  purpose  of  founding  an  indictment  for  perjury  against  the  deponents  : 
the  magistrate  must  be  subpoenaed  to  produce  the  depositions,  which  may 
be  read  in  evidence  before  the  grand  jury. (A;) 

Parish  books,  and  the  books  of  the  Custom  house.  Post  office.  Bank, 
JSouth  Sea  house,  ^ast  India  company,  &c.,  are  to  some  purposes  consi- 
dered as  public  books ;  and  persons  who  have  an  interest  therein,  have  a 
right  to  inspect  them  :(l)  And  a  rule  of  an  inhabitant  of  a  parish 
[  *594  j  to  *inspect  the  parish  books,  so  far  as  they  apply  to  the  question 
in  dispute,  may  be  absolute  in  the  first  instance. (a)  So,  the  books 
of  the  commissioners  of  the  lotte?-^,  and  their  numerical  lists,  are  of  a  public 

(c)  1  Blac.  Rep.  44 ;  and  see  Peak.  Evid.  5  Ed.  89,  &c.  1  Phil.  Evid.  4  Ed.  422,  &c.  as 
to  the  inspection  of  public  writings  in  general. 

(rf)   1  Str.  12G.     12  Vin.  Abr.  104,^:;;.  68,  S.  C.     Barnes,  468.     2  Durnf.  &  East,  234. 

(e)   1  Str.  307.     Say.  Rep.  16. 

If)  1  Wils.  297.  Eez  v.  Berkinff,  cited  in  1  Wils.  240.  1  Blac.  Rep.  39,  S.  C.  1  Chit. 
Rep.  477,  (a) ;  but  see  id.  479,  where  the  general  right  of  every  man  to  inspect  the  books  of 
the  Quarter  Sessions  was  doubted  by  Abbott,  Ch.  J. 

{gg)  1  Str.  126.  12  Vin.  Abr.  104,  pi.  68,  S.  C.  Cas.  temp.  Hardw.  128.  2  Str.  1242. 
Barnes,  236.  1  Chit.  Rep.  476,  {a) ;  but  see  1  Ld.  Raym.  252.  Carth.  421,  S.  C.  Gilb. 
Cas.  K.  B.  134.  (Dr.  West's  case,)  2  Str.  1005.  1  Wils.  240.  1  Blac.  Rep.  41,  S.  C,  cited 
Say.  Rep.  250. 

(A)   Barnes,  463,  9. 

(i)  1  Ld.  Raym.  253.  Carth.  421,  S.  C.  3  Blac.  Com.  126.  1  Chit.  Cr.  L.  89.  Ry.  & 
Mo.  66.     1  Ga,T.  k  P.  241,  S.  C. ;  but  see  2  Str.  1122.     1  Blac.  Rep.  385.     Leach's  Cr.  L.  25. 

{k)   1  Chit.  Rep.  627. 

[l)  2  Ld.  Raym.  851.  7  Mod.  129,  S.  C.  1  Str.  304.  1  Barnard.  K.  B.  455.  2  Str.  954. 
Barnes,  236. 

(a)  2  Chit.  Rep.  290. 

"In  regard  to  the  records  of  inferior  tribunals,  the  right  of  inspection  is  more  limited. 
As  all  persons  have  not  necessarily  an  interest  in  them,  it  is  not  necessary  that  they  should 
be  open  to  the  inspection  of  all,  without  distinction.  The  party,  therefore,  who  wishes  to 
inspect  the  proceedings  of  any  of  those  courts,  should  first  apply  to  that  court,  showing 
that  he  has  some  interest  in  the  document,  and  that  he  requires  it  for  a  proper  purpose.  If 
it  should  be  refused,  the  Court  of  Chancery,  upon  affidavit  of  the  fact,  may  at  any  time 
send,  by  a  writ  oi  certiorari,  either  for  the  record  itself,  or  an  exemplification.  The  King's 
Bench  in  England,  and  the  Supreme  Courts  of  Common  Law  in  America,  have  the  same 
power  by  mandamus ;  and  this  whether  an  action  be  pending  or  not."  1  Greenl.  on  Evid. 
I  471,  472,  473. 


OF  BOOKS,  COURT  ROLLS,  ETC.  594 

nature ;  and  are  kept  by  the  commissioners  in  trust  for  the  ticket  holders, 
who  are  entitled  to  an  inspection  of  them  l>y  rule  of  court. (^)  But  access 
is  not  allowed  to  parish  books,(f')  &c.,  for  the  trial  of  questions  of  a  private 
nature,  or  in  collateral  actions,  brought  hy  or  apainst  persons  who  liave  no 
interest  therein.  And  thoujrli  the  Kant  J/idia  company  are  conipellahle  to 
produce  their  public  books, ((/)  yet  they  arc  not  <»blii;(.'d  to  produce  their 
books  of  letters,((')  &c. ;  nor  their  private  books,  relating  to  the  appoint- 
ment of  their  servants. (/) 

The  Court  rolls  and  books  of  a  manor  are  of  a  public  nature ;  the  ten- 
ants have  an  interest  therein,  and  the  lord,  who  has  the  custody  of  them, 
is  considered  merely  as  a  trustee :(//)  Hence  it  is  of  course,  in  the  Kind's 
Bench,  to  grant  leave  to  inspect  the  court  rolls,  &c.,  of  a  manor,  on  the 
application  of  a  tenant  of  the  manor,  wiio  has  been  rcfuse<l  that  j)i'rmission 
by  the  lord, (////)  And  one  who  has  a  primd  facia  title  to  a  copyliohl,  is 
entitled  to  inspect  the  court  rolls,  and  take  copies  of  them,  so  far  as  relates 
to  the  copyhold  claimed,  though  no  cause  be  depending  for  it  at  the  time.(a') 
So,  where  a  copyhold  tenant  was  forbidden  by  the  lord  to  cut  underwood 
upon  the  copyhold,  without  the  lord's  license,  the  court  granted  a  manda- 
nius  for  the  lord  to  permit  the  tenant  to  inspect  the  court  rolls,  so  far  as 
related  to  the  cutting  of  underwood,  after  a])plication  to  and  refusal  by  the 
lord ;  although  there  w^as  not  any  suit  depending. (^^)  But  this  privilege 
is  confined  to  the  tenants  of  the  manor :  for  the  lord  or  tenants  of  a  difte- 
rent  manor,  having  no  interest  in  the  court  rolls,  &c,,  cannot  claim  the  in- 
spection of  theni.(/)  And  even  though  the  party  applying  be  a  tenant  of  the 
manor,  the  court  will  not  grant  a  mandamus  to  inspect  court  rolls,  for  the 
purpose  of  supporting  an  indictment  against  the  lord,  for  not  repairing  a 
road  within  the  manor. (?>i)  In  the  King's  Bench,  if  the  rule  be  moved  for  on 
behalf  of  a  copyhold  tenant,  it  is  absolute  in  the  first  instance  ;(??)  but  other- 
wise it  is  only  a  rule  nisi  :{o)  In  the  Common  Pleas,  it  is  alwaj-s  a  rule  to 
show  cause  '■{}'>)  and  the  court  expect  an  affidavit  to  shoAV  that  the  person, 
on  whose  behalf  the  motion  is  made,  is  a  tenant  of  the  manor,  and  has  ap- 
plied to  the  lord  or  his  steward,  for  an  inspection  and  copies  of 
the  *covu-t  rolls,  which  have  been  denied. (a)  A  freehold  tenant  of  [  *595  ] 
a  manor  has  no  right  to  inspect  the  court  rolls,  unless  there  be 
some  cause  depending,  in  which  his  right  may  be  involved. (/>ft)  But  a 
mandamus  was  granted  to  the  steward  of  a  manor,  to  allow  inspection  of 

(6)   Schinolli  v.  Dumstead  and  others,  H.  36  Geo.  III.  K.  B. 

(r)  As  to  parish  hooks,  sec  5  Mod.  395.  1  Ld.  Riiym.  337,  S.  C.  12  Vin.  Ahr.  147.;>/. 
11.  1  Barnard.  100.  1  Wil.^.  240.  2  Cliit.  Rep.  288."  4  Barn.  &  Aid.  .Sol  :  t)nt  see  1  Blar. 
Rep.  27.  And  as  to  Custom  house  hooks,  &c.,  see  1  Ld.  Kavni.  70.').  2  Sir.  Io05.  1  Wils. 
240.     Say.  Rep.  250.     1  Blac.  Rep.  40,  S.  C. ;  but  sec  Barnes,  2.S5.     Com.  Rep.  555,  S.  C. 

(d)   7  Slod.  129.     2  Ld.  Raym.  851,  S.  C.  (*>)   1  Str.  646. 

(/)  2  Str.  717.  (</)   1  Ld.  Raym.  253.   2  Sir.  955,  1005. 

(hh)  3  Durnf.  k  East,  141 ;  and  see  Barnes,  236.     2  Blac.  Rep."  1061,  aerord. 

(If)   10  East,  2;!5.  {kk)  4  Maule  k  Sel.  162. 

(/)  12  Vin.  Ahr.  146.  Bunb.  269.  2  Str.  1005.  Talbot  v.  ViUfboys,  M.  23  Goo.  IIL  K. 
B.     3  Durnf.  k  East,  142. 

(m)  5  Barn.  &  Aid.  902.     1  Dowl.  &  Ryl.  559,  S.  C. ;  and  see  3  Durnf.  4  East,  142. 

\n\  3  Durnf.  k  East,  141. 

(o)  7  Durnf  k  East,  746  ;  and  see  5  Dowl.  &  Ryl.  484. 

(;))   2  Blac.  Rep.  1061.     Anit,  486,  (a). 

[a)  Barnes,  2.^6  ;  and  see  3  Wils.  399.     2  Blac.  Rep.  1061. 

[bb)  7  Durnf  k  East,  746;  and  sec  1  Wils.  104.  where  a  frrehnldrr  ^an  roftiscd  a  rule  to 
inspect  the  rolls  of  the  manor,  in  a  case  between  himself  and  the  lord,  touchinp  a  cnpi/hold : 
but  see  Barnes.  237.  2  Blac.  Rep.  1030,  semb.  con  It  ;  and  see  2  Ves.  620.  13  East.  10. 
PhiL  Evid.  4  Ed.  429,  30. 


r^Q^  OF  INSPECTION  AND  COPIES,  ETC. 

the  court  rolls  to  two  freehold  tenants,  litigating  a  right  of  common  in  the 
manor,  although,  the  cause  was  not  at  issue. (c) 

So,  the  books  of  a  Corporation  are  in  nature  of  public  books  •,{d)  and 
every  member  of  the  corporation,  having  an  interest  therein,  has  a  right 
t(.  inspect  and  take  copies  of  them,  for  any  matter  that  concerns  himself, 
though  it  be  in  a  dispute  with  others. (e)  And,  in  an  action  for  the  breach 
of  a  bye  law,  restraining  persons  from  exercising  trades  within  the  limits 
of  a  corporate  city,  unless  they  become  freemen,  the  court  will  compel  the 
corporation  to  allow  the  defendant  to  inspect  the  bye  law  in  the  corpora- 
tion books. (/)  But,  pending  an  action  by  a  corporation  for  tolls,  the 
courts  will  not  grant  leave  to  inspect  the  corporation  books  or  muniments, 
on  the  application  of  .the  defendant,  a  stranger  to  the  corporation  :{g)  And 
the  inspection,  when  granted,  is  confined  to  the  subject-matter  in  dis- 
pute. (A)  These  rules  of  inspection,  in  cases  of  copyholds,  corporations, 
&c.  are  never  granted,  but  only  where  civil  rights  are  depending  ;(^)  for  it 
is  a  constant  and  invariable  rule,  that  in  criminal  cases,  the  party  shall 
never  be  obliged  to  furnish  evidence  against  himself.(A:)  Informations 
however,  in  nature  of  quo  warayito,  are  now  considered  in  the  light  of  civil 
proceedings ;  and  therefore,  when  they  are  exhibited  at  the  relation  of  a 
member  of  a  corporation,  the  court  will  grant  a  rule  for  the  inspection  of 
such  of  the  corporation  books  as  relate  to  the  subject-matter  in  dispute  :(/Z) 
But  in  an  action  against  a  corporation,  upon  a  right  of  toll,  the  coui't  re- 
fused a  rule  to  inspect  the  public  books,  records,  and  writings  of  the  cor- 
poration ;  because  no  issue  was  joined,  so  that  it  could  not  appear  whether 
such  inspection  would  be  necessary. (m) 

The  motion  for  a  rule  to  inspect  and  take  copies  of  books,  &c.  when  an 

action  is  depending,  is  founded  on  an  affidavit,  stating  the  cir- 
[  *o96  ]  cumstances  *under  which  the  inspection  is  claimed,  and  that  an 

application  has  been  made  in  the  proper  quarter,  for  permission  to 
make  the  inspection,  which  has  been  refused. (a)  And  when  a  motion  for 
an  information,  in  nature  of  a  quo  tvarranto,  is  depending,  the  court  will 
grant  a  rule  absolute  in  the  first  instance  :{b)  but  when  no  action  is  depend- 
ing, the  proper  mode  of  proceeding  is  by  moving  for  a  rule  to  show  cause, 
why  a  mandamus  should  not  issue,  commanding  the  officer  who  has  the 
custody  of  the  books,  to  permit  the  party  applying  to  inspect  and  take 
copies  of  the  necessary  entries.  (<?c)  The  affidavit,  upon  which  this  motion 
is  founded,  ought  to  state  clearly  the  right  under  which  the  inspection  is 
claimed,  and  that  the  inspection  has  been  refused.  (c?fZ)     And  when   the 

(c)  5  Dowl.  &  Ryl.  484.  (d)  2  Str.  954,  5. 

(e)  Id.  1223.     Barnes,  235.     Com.  Rep.  555,  S.  C.  (/)  3  Barn.  &  Cres.  162. 

Iff)  8  Durnf.  &  East,  590;  and  see  5  Mod.  395.  1  Ld.  Rajm.  337,  S.  C.  2  Str.  1203. 
Barnes,  238.  3  Wils.  398.  2  Blac.  Rep.  877,  S.  C.  1  Chit.  Rep.  476,  (a),  accord.  1  Durnf. 
&  East,  689.     3  Durnf.  &;  East.  303.     1  H.  Blac.  211,  contra. 

(k)  1  Barnard.  455.  2  Str.  1005,  1223.  1  Wils.  239.  1  Blac.  Rep.  40,  S.  C.  3  Durnf. 
&  East,  303 ;  and  see  2  Chit.  Rep.  231,  290;  but  see  3  Durnf.  &  East,  579. 

(i)   1  Wils.  240. 

(k)  1  Ld.  Ravm.  705.  2  Ld.  Raym.  927.  2  Str.  1210.  1  Wils.  239.  1  Blac.  Rep.  37, 
S.  C.     Id.  351,  S.  P.     4  Bur.  2489.     1  Durnf.  &  East,  689.     3  Durnf.  &  East,  142. 

(11)  2  Chit.  Rep.  366,  (a)  ■  and  see  3  Durnf.  &  East,  142,  579.     4  Taunt.  162. 

(to)  2  Blac.  Rep.  877.     3  Wils.  398,  S.  C.     1  Ld.  Raym.  253.     Carth.  421,  S.  C. 

(«)  Barnes,  236.     Phil.  Evid.  4  Ed.  433. 

(6)  2  Chit.  Rep.  366;  and  see  3  Durnf.  &  East,  141.     Phil.  Evid.  4  Ed.  433. 

(cc)  4  Maule  <fe  Sel.  162  ;  and  see  Mr.  Nolan's  edition  of  .Strange,  p.  1223,  in  notis.  3  Durnf. 
&  East,  142.     10  East,  235.     2  Chit.  Rep.  366,  (a).     Phil.  Evid.  4  Ed.  434. 

{dd)  Barnes,  236.    Phil.  Evid.  4  Ed.  434. 


OF  PARTICULARS  OP  PLAINTIFFS  DEMAND.  59g 

motion  is  for  a  writ  of  mandamus  to  inspect,  grounded  upon  affidavits,  the 
rule  is  only  a  rule  /a'»/.(<;)  If  a  rule  be  made  to  show  cause,  why  aTi  infor- 
mation should  not  be  filed,  in  nature  of  a  yuo  warranto,  the  court  of  Kin<_f's 
Bench  will  make  a  rule  for  the  prosecutor  to  inspect  and  take  copies  of 
books  and  records,  as  soon  as  the  rule  to  show  cause  is  granted  :(/)  but  if  a 
rule  be  made  to  show  cause,  why  a  rnamiamuH  siiould  not  be  awardid,  tlie 
court  will  not  make  a  rule  for  the  prosecutor  to  inspe<-t  an<l  take  co|)i».'s  of 
books  and  records,  until  the  rule  be  made  absolute,  and  a  return  made  to 
the  mandamus. {g) 

When  the  declaration  docs  not  disclose  the  particulars  of  the  plaintiffs 
demand,  as  in  actions  of  afisumpsit,  or  debt  for  goods  sold,  or  work  and 
labour,  &c.  the  defendant's  attorney  or  agent  may  take  out  a  summons  be- 
fore a  judge,  for  the  plaintiffs  attorney  or  agent,  to  show  cause,  why  he 
should  not  deliver  to  the  defendant's  attorney  or  agent,  the  particulars  in 
writing  of  the  plaintift^s  demand,  for  which  the  action  is  brftught,  and  why 
all  proceedings  should  not  in  the  mean  time  be  stayed. (7i)[A]     This  sum- 


(e)  Phil.  Evid.  4  Ed.  433. 

(/)  Gas.  temp.  Hardw.  245.     Say.  Rep.  145.     3  Durnf.  &  East,  141.     2  Chit.  Rep.  306; 
but  see  3  Durnf.  &  East,  581. 

Say.  Rep.  145 ;  aud  see  1  Ld.  Raym.  253,  accord. 

3  Bur.  1390.     Imp.  C.  P.  7  Ed.  185,  6 ;  and  see  Append.  Chap.  XXIII.  ?  3. 


!fj 


[a]  "A  bill  of  particulars  is  a  i.icre  creature  of  the  court,  and  is  no  part  of  the  record. 
Blunt  V.  Cooke,  4  Man.  &  Gran.  458.  Tiie  object  of  it  is  to  give  the  defendant  mora 
specific  and  precise  information  as  to  the  nature  and  extent  of  the  demand  made  ujion 
him  by  the  plaintiff,  than  is  announced  by  the  declaration,  in  a  mode  unincumbered  by  the 
technical  formalities  of  pleading.  3  Starkie  on  Ev.  1055.  It  ought  to  be  as  certain,  and 
convey  as  much  information  as  a  sjjccial  declaration.  Gilpin  v.  Ilou-ell,  5  Harr,  53.  Thus 
it  has  been  held,  that  if  a  bill  of  particulars  state  the  plaintiff's  demand  to  be  for  goods 
sold  and  delivered  to  the  defendant,  no  evidence  can  be  received,  of  goods  sold  by  the  de- 
fendant as  plaintiff's  agent.  Holland  v.  Hopkins,  2  Bos.  &  Pul.  243.  Hence,  Mr.  Chitty  re- 
commends the  practitioner  to  describe  the  claim  in  the  particulars  in  every  possible  shajie 
that  could  be  admissible  under  the  counts  in  the  declaration.  3  Chitty,  Gen.  I'r.  01  (i.  Yet 
this  and  other  elementary  writers  seem  to  consider,  that  like  every  other  matter  in  pais,  the 
bill  of  particulars  may  be  used  against  the  party  who  has  furnished  it;  and  there  are  re- 
ported cases  which  sustain  this  view.  Ibid.  017  ;  3  Starkie  on  Ev.  1058.  Cohon  v.  Sdhtf, 
1  Esp.  N.  P.  C.  452.  Ihimer  v.  Cook,  Moody  &  Malkin,  80.  In  the  case  of  Ilarringlon  v. 
MacMorris,  5  Taunt.  228,  however,  it  was  decided  tliat  the  plaintiff  cannot  use  one  plea  of 
a  defendant  as  evidence  of  the  fact  which  the  defendant  denies  in  another  plea.  Nor  can 
he  use  a  notice  of  set-off  for  evidence  of  the  debt  on  the  issue  of  won  a-fnumpgit,  because  tho 
statute  gives  the  notice  of  set-off  in  the  nature  and  place  of  a  plea  ;  nor  can  he  use  a  par- 
ticular of  set-off  for  that  purpose,  because  it  is  incorporated  with  the  notice  of  set-off.  See 
also  Miller  v.  Johnson,  2  Esp.  N.  P.  C.  002.  Short  v.  Kdirardi.  1  Esj).  N.  P.  C.  374.  So  it 
has  been  held  in  other  cases,  that  one  count  of  a  declaration  cannot  be  called  in  as  proof 
by  the  defendant  to  contradict  or  affect  the  evidence  in  respect  to  another.  Cowen  k  Hills' 
notes  to  Phillips  on  Evid.  331,  and  the  cases  there  cited.  Upon  these  grounds,  and  con- 
sidering the  hill  of  particulars  as  a  part  of  the  pleadings,  a  very  respectable  court  in  New 
York  has  denied  any  effect  to  them  as  evidence.  Brittingham  v.  Stephmx,  1  Hall,  370; 
Gowcn  k  Hills'  notes  to  Phillips  on  Evid.  301,  and  cases  there  referred  to.  We  think  this  is 
the  sounder,  and  practically  tJie  more  just  and  convenient  doctrine.  In  providing  that  de- 
fendant shall  be  furnislu'(l  with  a  previous  knowledgi'  of  tho  nature  of  the  claim  which  he 
must  prepare  to  meet  on  the  trial,  we  must  take  care  that  the  plaintiff  be  not  tranmielled  by 
the  mere  forms  of  the  proceedings,  so  that  substantial  justice  may  in  all  cases,  so  far  ng 
possible,  be  attained."  Hartell  v.  Sei/l>ert,  District  Court,  Philadelphia  Co.,  March  25th, 
1848,  per  Shamwood,  P.  J. 

Where  the  particulars  of  the  plaintiff's  demand  are  not  disclosed  in  the  declaration,  the 
defendant  may  call  on  him  to  exhibit  them.  And  the  plaintiff  may  call  on  the  defendant 
for  the  particulars  of  his  set-off,  if  they  are  not  specified  in  the  plea  or  the  notice.  .Verc-r 
V.  Sat/re,  8  Johns.  24S.  And  it  may  be  demanded  by  the  defendant  before  appearance. 
EooseveU  v.  Oardinier,  2  Cow.  403,     And  a  defendant  may  refuse  to  plead  until  it  is  filed. 


rqg  OF  PARTICULARS 

mons  may  be  taken  out,  and  an  order  obtained  thereon,  in  the  King's  Bench, 
before  the  defendant  has  appeared. (e)  And,  in  the  Common  Pleas,  though 
the  practice  was  formerly  otherwise, (Ar)  it  is  ordered  by  a  late  rule,(?)  that 

(i)   1  Chit.  Rep.  724,  5,  (a).  (k)   1  Bos.  &  Pul.  378. 

(l)  n.  T.  2  Geo.  IV.  C.  P.  6  Moore,  211. 


Diivi.i  V.  Hunt,  2  Bailey,  416.  In  South  Carolina,  if  the  plaintiff  have  only  a  count  for 
money  had  and  received,  he  must  file  a  statement  of  particulars,  or  otherwise  give  the  de- 
fendant notice  of  the  nature  of  his  demand,  or  the  court  will  dismiss  the  action.  Smyth  v. 
Lchie,  1  Rep.  Con.  Ct.  240.  Barton  v.  JJvnlnp,  2  Jd.  140.  An  order  for  the  plaintiff  to  fur- 
nish a  bill  of  particulars  is  not  granted,  in  New  Yorli,  without  an  affidavit  showing  the  ne- 
cessity of  such  an  order.  Willis  v.  Bailey,  19  Johns.  208.  And  the  order  for  such  bill 
should  direct  the  plaintiff  to  deliver  one  at  a  given  day,  or  then  show  cause  why  he  has 
not.  If  no  cause  is  shown,  the  order  becomes  absolute,  and  the  defendant  may  move  for  a 
nonpros,  unless  a  bill  is  delivered.  Brewster  v.  Socket,  1  Cow.  571.  Fleurot  v.  Durand,  14 
Johns.  .329.  Or,  when  the  order  becomes  absolute,  the  defendant  may  move  for  a  rule,  that 
the  bill  be  furnished  within  a  ceitain  time,  and  costs  of  the  motion  be  paid  by  the  plaintiff, 
or  that  judgment  of  nan  pros,  be  entered.     May  v.  Richardson,  4  Cow.  56. 

After  regular  notice  of  a  motion  for  a  non  pros,  in  such  case,  if  the  plaintiff  furnish  a  bill, 
it  is  a  sutticicnt  answer  to  the  application,  provided  the  costs  are  paid  up  to  that  time  ; 
otherwise  not.  Symonds  v.  Craw,  5  Cow.  279.  A  plaintiff  may  be  non  pressed  as  to  the 
general  counts,  for  not  furnishing  a  bill,  and  be  allowed  to  proceed  on  his  special  count. 
lb.  And  though  an  order  for  a  bill,  staying  proceedings  absolutely  till  it  is  delivered,  is 
irregular,  and  may  be  vacated,  Hazard  v.  Henry,  2  Cow.  587  ;  yet  it  stays  proceedings  in 
the  mean-time.  Roosevelt  v.  Gardinier,  2  Cow.  463.  Yet  an  order  nisi  for  a  bill  is  not  a 
stay  of  proceedings  unless  a  stay  is  directed  by  it.  Vermont  Academy  v.  Landon,  2  Wend. 
620.  It  may  be  made  at  any  time  before  trial ;  but  when  applied  for  by  the  defendant, 
after  issue  joined,  a  good  excuse  for  the  delay  is  required,  and  he  must  satisfy  the  court 
that  his  object  is  not  further  delay.     Andrew  v.  Cleaveland,  3  Wend.  437. 

Under  the  Virginia  statute,  an  account  filed  in  an  action  of  indebitatus  assumpsit,  which 
gives  notice  of  the  character  of  the  claim,  is  sufficient,  though  made  up  of  various  items  of 
which  no  notice  is  given.  3Ioore  v.  Blauro,  4  Rand.  488.  A  bill  need  not  be  as  special  as 
a  count  on  a  special  contract ;  it  is  sufficiently  definite  if  it  apprize  the  other  side  of  the  evi- 
dence that  is  to  be  offered,  so  that  he  cannot  mistake  as  to  his  preparation  to  resist  the 
claim.  Smith  v.  Hicks,  5  Wend.  51.  Chesapeake,  cj-c.  Canal  Co.  v.  Knapp,  9  Pet.  541.  The 
bill  is  not  a  part  of  the  record ;  and,  where  evidence  is  given  which  supports  the  declara- 
tion, it  is  not  a  cause  for  non-suit  that  it  does  not  agree  with  the  bill.  Davis  v.  Hunt,  2 
Bailey,  412.  If  a  bill  is  unsatisfactory  and  defective,  the  party  to  whom  it  is  delivered  may 
obtain  an  order  for  further  particulars.  Goodrich  v.  James,  1  Wend.  289.  A  bill  is  amend- 
aljle  like  a  declaration.  Babcock  v.  Thompson,  3  Pick.  449.  Tillen  v.  Hutchinson,  3  Green. 
178.  Fcidler  v.  Collier,  13  Geo.  496;  but  not  without  leave  of  the  court.  Wayer  v.  Cheiv, 
3  Harris,  323.     Even  one  irregularly  filed  may  be  amended.     Adle  v.  Floyd,  3  Pike,  248. 

In  Kentucky,  whenever  a  declaration  is  so  general  as  not  to  apprize  the  defendant  of  the 
nature  and  extent  of  the  demand,  he  is  entitled  to  a  bill  of  particulars,  to  which  the 
plaintiff'  will  be  restricted  in  his  proof.  Broiim  v.  Calvert,  4  Dana,  219.  A  bill  of  particu- 
lars may  be  called  for  at  any  time  ;  it  is  not  regarded  as  an  appearance  to  the  declaration, 
or  as  confined  in  its  objects  to  a  defence  on  the  merits.  Watkins  v.  Brown,  5  Pike,  197. 
Where  a  bill  of  particulars  is  delivered  with  the  declaration,  and  the  plaintiff  is  subsequently 
served  with  an  order  for  a  bill,  he  may  disregard  it  and  enter  the  defendant's  default  for 
not  pleading  aliter,  where  the  order  is  for  further  particulars.  Payne  y.  Smith,  19  Wend. 
122.  After  a  peremptory  order  that  a  plaintiff  furnish  a  bill  of  particulars,  if  an  evasive 
bill  be  delivered,  the  defendant  may  move  for  judgment  of  non  pros. ;  but  if  the  bill  appear 
to  have  been  made  in  good  faith,  though  not  satisfactory,  a  better  bill  should  be  applied 
for.  Furdy  V.  Warden,  18  Wend.  671.  If  the  character  of  the  claim  sufficiently  appear 
from  the  declaration,  a  bill  of  particulars  is  not  necessary.  Nevitt  v.  Rabe,  5  How.  Miss. 
653.  And  the  only  effect  of  a  bill  of  particulars  is,  to  restrict  the  proofs  and  limit  the  re- 
covery or  set-off  to  the  matters  set  forth  in  it.  Starkweather  r.  Kiltie,  17  Wend.  20.  A 
copy  of  a  promissory  note,  attached  to  a  declaration  containing  the  common  counts,  will 
not  authorize  the  plaintiif  to  disregard  an  order  for  a  bill  of  particulars.  Reynolds  v.  Woods, 
22  Wend.  642.  Garret  v.  Teller,  22  Wend.  643.  In  South  Carolina,  where,  in  an  action  of 
as.mnpsit,  the  declaration  contained  only  a  count  for  money  had  and  received,  the  omission 
to  file  with  it  a  bill  of  particulars  was  held  a  cause  of  special  demurrer.  Cregier  v.  Smyth, 
1  Specrs,  298.  In  Illinois,  where  there  is  a  special  count  on  a  promissory  note,  a  copy  of 
which  is  filed  with  the  declaration,  a  bill  of  particulars  is  not  necessary  in  order  to  give  the 
note  in  evidence  under  the  common  counts.     The  People  v.  Pearson,  1  Scam.  458 ;  S.  C,  1 


OF  PLAINTIFF'S  DEMAND.  596 

"in  future,  defendants,  on  being  served  with  process  or  arrested,  will  be 

alloAVed  to  obtiiin  orders  for  the  particulars  of  the  phiintiff's  demand,  with- 
out waiting  till  appeaniiicc  entered  or  bail  put  in,  or  declaration  filed  and 
delivered ;  and  that  in  this  respect,  the  practice  of  this  court  will  be  made 
conforniable  to  that  of  the  court  of  King's  Bench."  The  suniiuons  for 
particulars,  however,  is  usually  taken  out  after  appearance  and 
*declaration,  and  before  plea  ;  and  unU-ss  good  cause  be  shown  [  *597  ] 
to  the  contrary,  the  judge  will  make  an  order, (r?)  agreeably  to 
the  summons ;  which  operates,  when  drawn  u[)  and  served,  as  a  stay  of 
proceedings,  till  the  particulars  are  delivered. (i)  But  a  judge's  order  for 
the  delivery  of  a  bill  of  particulars,  does  not  stay  proceedings,  unless  it  be 
drawn  up,  and  served  upon  the  plaintiff's  attorney. (^')  And  it  is  a  rule  in 
the  Kings  Bench, ((/)  that  "no  order  be  made  in  any  action  depending  in 
this  court,  to  compel  a  delivery  of  particulars  of  the  jdaintiff 's  demand, 
unless  the  defendant  or  defendants,  in  the  event  of  pleading,  do  by  such 
order  undertake  to  plead  issuably,  or  unless  the  plaintiff's  attorney  or 
agent  shall,  by  special  indorsement  on  the  summons,  consent  to  waive  the 
same."  It  is  also  usual  in  that  court,  on  granting  an  order  for  particu- 
lars, which  is  considered  as  a  matter  of  favour,  to  require  from  the  de- 
fendant some  admission  ;  as  of  the  signature  of  a  note,  &c. 

In  as>>umj)sit  for  non-performance  of  a  contract  for  tlie  sale  of  a  house, 
with  counts  to  recover  back  the  deposit,  the  plaintiff'  having  in  his  first 
count  alleged  that  the  defendant,  who  was  to  make  a  good  title,  had  deli- 
vered an  abstract  which  was  insufficient,  defective  and  objectionable,  the 
court  of  Common  Pleas  obliged  the  plaintiff  to  give  a  particular  of  all  ob- 
jections to  the  abstract,  arising  upon  matters  of  fact ;  but  said  he  was  not 
bound  to  state  in  his  particulars,  any  objections  in  point  of  law.(«)  So,  if 
an  action  be  brought  on  a  bond  conditioned  for  the  performance  of  cove- 
nants, or  to  indemnify,  &c.  the  defendant  may  call  for  a  particular  of  the 
breaches  for  which  the  action  is  brought:  And  where  a  general  form  of 
declaring  is  given  by  act  of  parliament,  as  upon  the  statute  9  Ann.  c.  14, 
or  upon  the  25  Geo.  II.  c.  30,  it  seems  reasonable  that  the  phiintiff,  if  re- 
quired, should  give  an  account  of  the  particulars  of  his  demand,  in  order 
to  enable  the  defendant  to  prepare  for  his  defence.  But  whenever  the 
particulars  of  the  demand  are  disclosed  in  the  declaration,  as  in  spcrial 
assumpsits,  covenant,  or  debt  on  articles  of  agreement,  &c.  or  in  actions 
on  matters  of  record,  an  order  for  such  particulars  does  not  seem  to  be  re- 
quisite. 

In  actions  for  wrongs,  the  injury  complained  of  is  in  general  stated 

{a)  Append.  Chap.  XXIII.  §  4.  And  for  the  forms  of  bills  of  particulars  in  different  cases 
see  id.  ^  ti,  &c. 

(6)  Ante,  469.  (c)   I  Chit.  Rep.  G47. 

\d)  R.  H.  59  Geo.  III.  K.  B. 

(c)  3  Bos.  &  Pul.  246;  and  see  1  Campb.  2r>3. 

Scam.  473.  And  a  bill  of  particulars,  recognized  by  the  parties  as  regular,  although  not 
called  for  bj-  the  defendant,  may  be  given  to  the  jurv  to  U»ke  out  with  them.  McCreary  v. 
Hood,  .5  Bliickf.  316.     Stnirits  v.  Bank  of  Troi/,  21  Wend.  186. 

In  an  action  under  the  statute  of  New  York,  by  the  representatives  of  a  person  killed  by 
the  alleged  negligence  of  the  defendant,  a  bill  of  particulars  of  the  damage  cannot  be  re- 
quired. Miirp/ii/  V.  Ivipp,  1  Duer,  (N.  Y.)  <>:>'.).  It  is  too  late  to  object,  at  the  trial,  to  a  bill 
of  particulars,  which  has  been  served  on  the  attorney  of  the  defendant,  that  it  is  not  .<worn 
to  according  to  the  statute.  If  the  defendant  was  not  satisfied  with  it,  he  should  have  re- 
ttirned  it,  or  moved  the  court  for  a  further  or  amended  bill.     Dennuon  v.  Smith,  1  Cal.  437. 


597 


OF  PARTICULARS 


in  tlic  declaration ;  and  therefore,  in  such  actions,  it  is  not  usual  to  make 
an  order  for  the  particulars  :  but  circumstances  may  occur  which  render  it 
necessary.  And  in  an  action  against  the  marshal  for  an  escape,  he  is  enti- 
tled to  a  particular  of  the  cause  of  action,  for  which  the  plaintiff  sues. (/)[!] 
Under  a  judge's  order  for  particulars,  the  plaintiff,  or  his  attorney  or  agent, 
should  deliver  a  particular  account  in  writing  of  the  items  of  the  demand, 
and  when  and  in  what  manner  it  arose  :[a]  And  where  there  has  been  an 

account  current,  and  payments  nave  been  made  for  which  the 
[  *598  ]  party  means  to  give  credit,  the  particular  ought  to  contain  as 

well  those  *matters  for  which  he  means  to  give  credit,  as  those 
for  which  the  action  is  brought. (a)     But  it  is  sufficient  to  refer  in  a  bill  of 

(/)  1  Dowl.  &  Ryl.  774. 

(a)  1  Esp.  Rep.  280.  2  Campb.  410.  In  the  latter  case,  an  attorney  having  delivered  a 
particular,  containing  only  the  debtor  side  of  the  account,  was  made  to  take  a  verdict  for 

[1]  In  order  to  obtain  particulars  in  an  action  of  trespass,  trover,  or  on  the  case,  it  seems 
to  be  necessary  to  produce  an  affidavit,  denying  the  defendant's  knowledge  of  what  the 
plaintiff  is  proceeding  for.  Snclling  v.  Chennels,  5  Dowl.  Rep.  80.  12  Leg.  Obs.  75,  S.  C. 
And  the  court  will  not  compel  a  plaintiff,  suing  for  the  breach  of  an  agreement,  and  assign- 
ing by  way  of  special  damage,  that  he  has  incurred  certain  expenses,  to  furnish  particulars 
of  such  special  damage.  Retallkk  v.  Ilawkcs,  1  Meeson  &  W.  573.  So,  in  an  action  on  the 
case  against  an  attorney  for  negligence,  in  assigning  leasehold  property  belonging  to  the 
plaintiff,  per  quod  the  plaintiff  had  to  pay  damages  to  the  assignee,  the  court  refused  to 
compel  the  delivery  of  a  particular  of  the  plaintiff's  demand.  Stannard  v.  UlUthorne,  3 
Bing.  N.  R.  326.     5  Dowl.  Rep.  370,  S.  C. 

At  the  trial,  an  erroneous  date  in  a  bill  of  particulars,  or  a  mistake  therein,  which  is  not 
calculated  to  mislead  the  defendant,  will  not  preclude  the  plaintiff  from  recovering  his  de- 
mand. Milhvoodv.  Walter,  2  Taunt.  224;  and  see  Harrison  y.  Wood,  8  Bing.  371.  Lam- 
birth  V.  jRoff,  1  Moore  &  S.  597.  8  Bing.  411,  S.  C.  Bagsier  v.  Robinson,  2  Moore  &  S.  160. 
9  Bing.  77,  S.  C.  Spencer  v.  Bates,  1  Gale,  108.  Fisher  v.  Waimcright,  1  Meeson  &  W.  480. 
1  Tyr.  &  G.  606.  5  Dowl.  Rep.  102.  12  Leg.  Obs.  99,  100,  S.  C.  And  a  printer,  who  had 
let  out  men,  presses,  and  type,  for  the  printing  of  a  newspaper,  was  allowed  to  recover,  in 
an  action  for  work  and  labour,  although  his  particular  described  the  demand  to  be  "for 
composing  and  printing  a  certain  newspaper,"  &c. ;  the  defendants  not  having,  at  the  trial, 
availed  themselves  of  the  variance  between  the  particular  and  the  evidence.  Bagster  v. 
Robinson,  2  Moore  &  S.  160.  9  Bing.  77,  S.  C.  So,  though  the  particulars  of  the  demand 
vary  from  the  evidence  which  the  plaintiff  adduces,  yet,  if  the  defendant  appears  and  de- 
fends, and  is  not  misled  by  them,  the  variance  is  no  ground  for  nonsuiting  the  plaintiff. 
Green  v.  Clark,  2  Dowl.  Rep.  18.  6  Leg.  Obs.  362,  S.  C.  Spencer  v.  Bates,  1  Gale,  108. 
But  where  the  plaintiff's  bill  of  particulars  stated  the  cause  of  action  to  be  for  the  amount 
of  stakes  deposited  in  the  defendant's  hands,  by  the  plaintiff  and  R.,  and  won  by  the  plain- 
tiff of  R.,  the  court  held  that  he  could  not  recover  the  amount  of  his  own  stake,  on  proof 
that  he  had  re-demanded  it  fi-om  the  defendant,  before  it  was  paid  over.  Davenport  v. 
Davies,  1  Meeson  &  W.  570. 

A  copy  of  the  particulars  of  the  plaintiff's  demand,  and  also  a  copj"^  of  the  particiilars,  if 
any,  of  the  defendant's  set-off.  Append,  to  Tidd,  Sup.  1832,  p.  113,  should  by  a  general  rule 
of  all  the  courts,  R.  T.  1  W.  IV.  reg.  II ;  2  Barn.  &  Ad.  788,  9  ;  7  Bing.  783  ;  1  Cromp.  & 
J.  470,  71  ;  4  Car.  &  P.  603,  be  annexed  by  the  plaintiff's  attorney  to  every  record,  at  the 
time  it  is  entered  with  the  judge's  marshal.  And  when  the  bill  of  particulars  of  the  plain- 
tiff's demand  is  appended  to  the  record,  it  is  not  necessary  to  prove  the  delivery  of  it  to  the 
defendant.  Macarthy  v.  Smith,  8  Bing.  145.  1  Moore  &  S.  227.  1  Dowl.  Rep.  253,  S.  C. 
Particulars  of  demand  having  been  delivered  to  the  defendant's  attorney,  under  a  judge's 
order,  another  bill  of  particulars  was  afterwards  annexed  to  the  record  by  the  plaintiflf'"s 
attorney,  pursuant  to  the  above  rule,  as  and  for  a  copy  of  the  particulars  of  the  demand, 
but  in  fact  containing  items  not  stated  in  the  particulars  delivered  to  the  defendant ;  the 
plaintiff's  evidence  at  the  trial  was  confined  to  the  items  exclusively  set  forth  in  the  par- 
ticular annexed  to  the  record ;  the  defendant  not  being  prepared  to  prove  the  delivery  of 
the  particulars  to  his  attorney,  under  the  judge's  order,  did  not  apply  for  a  nonsuit;  and 
the  court,  under  the  circumstances,  granted  a  new  trial  without  costs,  but  refused  to  enter 
a  nonsuit.  Morgan  v.  Harris,  2  Tyr.  Rep.  385.  2  Cromp.  &  J.  461.  1  Dowl.  Rep.  570, 
S.  C. 

[a]  Time  is  material.     Quin  v.  Astor,  2  Wend.  R.  577. 


OF  DEFENDANT'S  SET-OFF,  ETC.  698 

particulars,  to  an  account  already  delivered,  without  restating  it  :{b)  and 
in  general,  if  the  plaintifl"8  particular  convey  the  re(juisite  information  to 
the  defendant,  however  inaccurately  it  be  dra\sn  up,  it  is  8u{licient.('') 
And  if  a  bill  of  particulars  state  the  transaction  upon  which  tlie  plaintift's 
claim  arises,  it  need  not  specify  the  technical  descri])tion  of  the  right  which 
results  to  the  plaintiff  out  of  that  transaction. (J)  After  the  delivery  of  a 
bill  of  particulars,  the  defendant,  in  the  King's  Bench,  has  the  same  time 
to  plead,  as  he  had  when  the  summons  f(jr  it  was  returnable. (c)  And  in 
the  Common  Pleas,  we  have  seen,(/)  the  plaintiff  cannot  sign  ju<lgment 
for  want  of  a  plea  till  the  expiration  of  twenty-four  hours  after  the  delivery 
of  a  bill  of  particulars,  though  the  time  for  pleading  be  expired,  and  a  de- 
mand of  plea  given,  more  than  twenty-four  hours  before  that  time.  In  the 
Exche(|uer,  the  defendant  cannot  obtain  an  order  for  the  particulars  of  the 
plaintiff's  demand,  without  an  affidavit, (y)  that  he  is  unac<iuaiiited  with 
them:  but  he  is  entitled  to  receive  such  particulars  from  the  plaintiff, 
although  he  may  have  had  a  statement  of  them  before  the  action  was 
brought.(/i)  And  where  a  plaintiff  refused  to  deliver  a  particular  of  his 
demand,  in  obedience  to  a  judge's  order,  the  court  of  King's  Bench  refused 
to  allow  the  defendant  to  sign  a  judgment  of  7ion  prfls.[i) 

As  the  defendant  is  allowed  to  call  for  the  particulars  of  the  plaintiff's 
demand,  so  when  the  defendant  pleads  or  gives  notice  of  net  off,  for  goods 
sold,  &c.  the  plaintiff  may  take  out  a  sunnuons  for  the  particulars ;  upon 
which  the  judge  will  make  an  order,  which  should  be  regularly  drawn  up 
and  servcd,(A:)  for  the  defendant  to  deliver  them  in  a  certain  time,  or  in  de- 
fault thereof,  that  he  be  precluded  from  giving  evidence  at  the  trial,  in  sup- 
port of  his  set-off.(/)  But  the  plaintiff  cannot  make  any  objection  to  such 
particidars,  at  the  trial  of  the  cause,  which,  if  made  earlier,  the  defendant 
or  the  court  might  have  rectified. (w) 

If  the  particulars  delivered  under  a  judge's  order  be  not  sufficiently  ex- 
plicit, the  party  to  whom  they  are  delivered  may  take  out  a  summons,  and 
obtain  an  order,  ^ov further  particulars  ;  and  if,  on  the  other  hand, 
*they  are  incorrect,  or  not  sufficiently  comprehensive,  the  party  [  *599 
delivering   may  have  a    summons  and  order  to    amend  them. 
But  it  is  a  rule  in  the  King's  Bench, (a)  that  "  no  summons  for  further 
particulars  of  the  plaintiffs  demand,  defendant's  set  off,  or  other  particular, 
be  granted  in  an  action  depending  in  this  court,  unless  the  last  previous 
order  for  particulars  be  first  draw'n  up,  and  such  order  produced  at  the  time 
of  applying  for  any  such  summons."     And  in  the  Common  IMeas,   where 
the  declaration  was  delivered  at  the  same  time  as  a  bill  of  particulars  which 
was  insufficient,  and  another  order  was  afterwards  obtained  for  better  particu- 

the  balance  due  to  him,  without  costs.  Sed  guerre,  as  to  the  necessity  of  including  pny- 
monts  by  the  di'fendant,  in  the  particulars  of  the  plaintiff's  demand ;  the  practice  not  being 
conformable  to  the  cases? 

(A)  I'eake's  Cas.  Ni.  IVi.  3  Ed.  229.  (r)   1  Canijjb.  C9,  in  fioda. 

(d)  4  Taunt.  189 ;  and  see  Peakcs  Cas.  Xi.  Tri.  3  Ed.  229,  {a). 

(e)  13  Bast,  508  ;  and  see  5  Ham.  &  Cres.  7G9 ;  but  see  4  Barn.  &  Cres.  970.  7  Dowl.  it 
Ryl.  458,  S.  C.     5  Barn.  &  Cres.  770,  (i), 

(/)  Antfi,  409.  (ff)  Append.  Chap.  XXllI.  ?  5. 

(A)  Wifjhtw.  78.  {,)  7  Dowl.  &  Ryl.  125.     7  Barn,  i  Cres.  485. 

(k)  Tl.  II.  59  Geo.  HI.  K.  B.     AnU,  471. 

(I.)  For  the  form  of  particulars  of  set-off,  see  Append.  Chap.  XXIII.  {  10.  And  for  the 
effect  of  such  particulars,  see  8  Price.  213.  See  also  stnt.  5  Geo.  IV'.  c.  106,  §  8,  for  prant- 
intr  rules  in  vacation,  in  the  court.s  of  Great  iSessions  in  Wales,  for  a  particular  of  the  plain- 
tiff's demand,  and  defendant's  set-off,  &c.     AtUc,  486,  7,  (m). 

(mj  Holt,  Ni.  Pri.  552.  (a)  R.  H.  59  Geo.  III.  K.  B.     Atitc,  471. 


599  OF  PARTICULARS  OF  DEFENDANT'S  SET-OFF,  ETC. 

lars,  the  court  held,  that  as  the  defendant's  attorney  had  not  returned  the 
dechiration,  with  the  insufficient  particulars,  he  had  waived  the  irregular- 
ity. (/>)  An  amendment  was  allowed,  in  the  latter  court,  after  the  plaintiff 
had  been  nonsuited  for  a  defect  in  the  bill  of  particulars,  and  a  new  trial 
granted  on  payment  of  costs.(c)  And  the  plaintiff,  in  the  Exchequer,  is 
not  entitled  to  be  paid  the  costs  of  the  first  trial,  previous  to  and  as  the 
terms  of  the  amendment ;  but  the  court  will  order  them  to  abide  the  event 
of  the  cause.(f?)  But  where  a  particular  was  delivered  under  a  judge's  order, 
and  the  plaintiff  delivered  a  second  particular,  without  an  order,  containing 
merely  an  echo  of  the  counts  in  the  declaration,  that  court  would  not  allow 
him  to  give  evidence  of  any  claim  contained  in  the  second  particular,  which 
was  not  included  in  the  first.(e) 

At  the  trial,  the  particulars  of  the  plaintiff's  demand,  or  of  the  defendant's 
set-off,  if  delivered,  are  considered  as  incorporated  with  the  declaration, 
plea,  or  notice;  and  on  production  of  the  order,  and  proof  of  their  delivery, 
the  parties  are  not  allowed  to  give  any  evidence  oitt  of  them.(/)  There- 
fore, where  the  particular  of  the  plaintiff's  demand  was  a  promissory  note 
only,  and  on  being  produced  it  appeared  to  be  improperly  stamped,  so  that 
it  could  not  be  given  in  evidence,  the  plaintiff,  though  he  might  otherwise 
have  gone  into  the  consideration  of  the  note,  was  held  to  be  precluded  there- 
from by  his  particular.  (^)  But  an  erroneous  date  to  a  bill  of  particulars, 
which  is  not  calculated  to  mislead  the  defendant,  will  not  preclude  the  plain- 
tiff from  recovering  his  demand.(7i)  So,  where  the  plaintiff  declared  in 
debt  for  rent,  without  showing  in  what  parish  the  lands  Avere  situate,  and 
delivered  a  particular  of  his  demand,  describing  them  in  a  wrong  parish, 
the  court  held  that  the  plaintiff  might  recover ;  it  not  appearing  that  any 
mis-representation  was  intended,  or  that  the  defendant  held  more  than  one 
parcel  of  land  of  the  plaintiff,  so  as  to  be  misled  by  it  :(z)  So,  where  the 
plaintiff  declared  on  three  bills  of  exchange,  in  three  several  counts,  but, 
according  to  his  particular,  only  sought  to  recover  on  the  bill  set  forth  in 

the  first  count ;  and  the  defence  was,  that  the  defendants  were  not 
[  *600  ]  partners  when  the  latter  bill  was  drawn,  and  the  plaintiff  tendered 

in  ^evidence  the  other  two  bills,  for  the  purpose  of  establishing  the 
fact  of  partnership  ;  which  evidence  was  rejected,  on  the  ground  that  these 
bills  were  not  included  in  the  particular;  the  court  of  Common  Pleas 
granted  a  new  trial. (a)  So,  in  ejectment  to  recover  premises  forfeited  for 
non-payment  of  rent,  a  difference  between  the  amount  of  rent  proved  to 
be  due,  and  the  amount  demanded  in  the  lessor  of  the  plaintiff's  particular, 
is  not  material. (66)  And  although  the  plaintiff,  after  delivering  a  particular 
of  his  demand,  cannot  at  the  trial  himself  give  evidence  out  of  it,  yet  if  the 
defendant's  evidence  show  that  there  were  other  iteyns  which  he  might  have 
included  in  his  demand,  he  is  entitled  to  recover  all  that  appears  to  be  due 
to  him.(w)  An  itern^  however,  of  the  plaintiff's  demand,  appearing  on  the 
face  of  the  defendant's  set  off,  given  in  under  a  judge's  order,  is  not  such 

(b)  2  Moore,  90 ;  and  see  Id.  655.     8  Taunt.  592,  S.  C.     Ante,  514. 

(c)  2  Bos.  k  Pul.  245.  {d)  8  Price,  538. 
{«)   1  Taunt.  353. 

(/)  Peake's  Gas.  Ni.  Pri.  3  Ed.  229.  1  Esp.  Rep.  195.  3  Esp.  Bep.  168.  2  Bos.  &  Pul. 
243,  S.  C.     1  Sel.  Pr.  2  Ed.  329,  30. 

ig)  4  Esp.  Rep.  7.  (h)  2  Taunt.  224. 

(i)  3  Maule  &  Sel.  380. 

(a)  5  Moore,  567.     2  Brod.  &  Ding.  682,  S.  C. 

(bb)  10  Moore,  252.    3  Bing.  3,  S.  C.  {cc)  1  Campb.  68. 


OP  CHANGING  THE  VENUE.  600 

an  admission  as  supersedes  the  necessity  of  the  plaintiff's  proving  it.{d) 
In  an  action  of  assumpsit  brought  by  the  assignees  of  a  bankrupt,  the  de- 
fendant called  for  the  particulars  of  the  plaintiff's  demand,  which  were 
given  him,  and  then  j)leaded  in  abatement,  that  the  promises  were  made 
by  himself  and  another  person  jointly  :  issue  being  joined  on  this  plea,  it 
appeared  in  evidence  at  the  trial,  tiiat  the  particulars  ehielly  related  to 
transactions  between  the  bankrupt  and  the  defendant,  jointly  with  the  per- 
son mentioned  in  the  plea ;  and  though  there  were  Home  items  which  con- 
cerned the  defendant  only,  yet  as  these  were  not  distinguished  from  the 
rest,  the  chief  justice  would  not  suffer  them  to  be  given  in  evidence,  and 
nonsuited  the  plaintiff:  The  Court  of  King's  Bench  was  afterwards  moved, 
but  refused  to  set  aside  the  nonsuit.((j) 


♦CHAPTER    XXIV.  [  *601  ] 

Of  CHANGING  the  Venue,  consolidating  Actions,  and  striking  out 

Counts. 

The  law  having  settled  the  distinction  between  local  and  transitory 
actions,  it  seems  that  towards  the  reign  of  Richard  the  second,  it  was 
greatly  abused  ;(a)  for  a  litigious  plaintiff  would  frequently  lay  his  action 
in  a  foreign  county,  at  a  great  distance  from  where  the  cause  of  it  arose, 
and  by  that  means  oblige  the  defendant  to  come  with  his  witnesses  into  that 
county.  To  remedy  which,  it  was  ordained  by  statute, (^)  "  to  the  intent 
that  writs  of  debt  and  account,  and  all  other  such  actions,  be  from  hence- 
forth taken  in  their  counties,  and  directed  to  the  sheriffs  of  the  counties 
where  the  contracts  of  the  same  actions  did  arise  ;  that  if  from  henceforth, 
in  pleas  upon  the  same  writs,  it  shall  be  declared  that  the  contract  thereof 
was  made  in  another  county  than  is  contained  in  the  original  writ,  that 
then  the  same  writ  shall  be  utterly  abated."  The  design  of  this  statute 
was  to  compel  the  suing  out  of  all  writs  arising  upon  contract,  in  the  very 
county  where  the  contract  was  made,(6')  agreeably  to  the  law  of  Henry  the 
first  :{d)  Unusqutsque  per  pares  suos  judicandus  est,  et  ejnsdem  provincice  ; 
pcregrina  vero  jiulicia  modis  omnibus  submovcmus.{e)  But  as  the  statute 
only  prescribes,  that  the  count  shall  agree  with  the  writ,  in  the  place  where 
the  contract  was  made,  it  did  not  effectually  prevent  the  mischief :(/)  And 
therefore  a  statute  of  Henry  the  fourth(/y)  directs  all  attorneys  to  be  sworn, 
that  they  will  make  no  suit  in  a  foreign  county ;  and  there  is  an  old  rule 
of  court,(A)  which  makes  it  highly  penal  for  attorneys  to  transgress  this 
statute. 

Soon  after  the  statute  of  Henry  the  fourth,  a  practice  began  of  pleading 
in  abatement  of  the  writ,  the  impropriety  of  its  venue,  even  before  the 

{d)  2  Esp.  Rep.  602.     5  Taunt.  228.     1  .Marsh.  33,  S.  C. 

(f)   CoUon  ^-  othcis,  assignees,  S;c.,  v.  Selby,  E.  36  Geo.  III.  K.  B.    1  E.sp.  Rep.  452,  S.  C. 

ia)  Gilb.  C.  P.  89.  U>)  6  U.  II.  c.  2. 

(c)  2  Blac.  Rep.  1032.  {d)  Lcp.  Hen.  I.  c.  31. 

(e)  Gilb.  C.  P.  89,  in  notis.  (/)  2  Black.  Rep.  1032. 

\g)  4  Hen.  IV.  c.  18. 

(A)  R.  M.  1654,  \  5,  K.  B.     R.  .M.  1G54,  I  8,  C.  P. ;  and  see  R.  M.  15  Elic.  J  15,  C.  P. 


gOl  OF  CHANGING  THE  VENUE. 

plaintiff  had  declared.  At  first,  in  the  reign  of  Henry  the  fifth,  they  ex- 
amined the  plaintiff  upon  oath,  as  to  the  truth  of  his  venue  :  But  soon  after 
thej  began  to  allow  the  defendant  to  traverse  the  venue,  and  try  the  tra- 
verse by  the  country. (e)  This  practice  being  subject  to  much  delay,  the 
judges  introduced  the  present  method  of  changing  the  venue  upon  motion, 

on  the  equity  of  the  above  statute  •,{k)  which  Lord  Holt  8ays,(?) 
[  *602  ]  *began  in  the  time  of  James  the  first :  And  accordingly  we  find, 

that  among  the  fees  of  the  Court  of  King's  Bench,  as  found  by  a 
jury  under  the  King's  commission  in  1630,  one  is,  "for  every  rule  to  alter 
a  visne.'\aa)  The  form  of  the  rule  and  affidavit  are  also  stated  by  Styles^ihh) 
as  established  in  23  Car.  l.{cc) 

But  whenever  the  practice  began,  it  is  now  settled,  that  in  transitory 
actions,  the  venue  may  be  changed  upon  motion,  either  by  the  plaintiff  or 
defendant ;  And,  in  an  action  against  several  defendants,  it  may  it  seems  be 
changed  at  the  instance  of  some  of  them  only.(^)  The  plaintiff  shall  not 
directly  alter  his  venue,  after  the  essoin  day  of  the  next  term  after  appear- 
ance ;  though  he  would  pay  costs,  or  give  an  imparlance  :[e)  Yet  he  may  in 
effect  do  it,  by  moving  to  amend  ;(/)  and  that,  after  the  defendant  has 
changed  the  venue, (^f)  or  pleaded, (A)  and  even  after  two  terms  have  elapsed 
from  the  delivery  of  the  declaration.  (zY)  An  amendment  was  allowed  in  the 
King's  Bench,  in  an  action  for  a  penalty  under  the  bribery  act,  by  altering 
the  venue  from  the  county  at  large  to  an  interior  jurisdiction,  after  the  time 
limited  for  commencing  a  new  action  ;  the  particularity  of  the  declaration 
making  it  appear  probable  to  the  court,  that  the  plaintiff  was  proceeding  on 
the  same  fact  for  which  the  action  was  originally  brought,  when  laid  by 
mistake  in  the  wrong  county,  though  there  was  no  affidavit  that  it  was  the 
same  -.(klc)  And  in  another  case,  such  amendment  was  allowed  though  it  ap- 
peared that  there  were  distinct  causes  of  action  in  the  two  different  counties, 
upon  an  affidavit  that  the  plaintiffproceeded  on  a  mistake,  in  supposing  that 
both  causes  of  action  could  be  proved  in  the  county  where  the  election  was 
holden.(?/)  But,  in  the  Common  Pleas,  where  the  defendant  had  put  off  the 
trial  at  the  assizes,  on  the  absence  of  a  witness,  the  court  refused  to  let  the 
plaintiff  amend,  by  changing  the  venue  to  Middle  sex. [m)  And  that  court 
will  not  amend  a  declaration,  by  changing  the  venue,  unless  the  plaintiff 
show  substantial  ground  for  it :  Therefore,  where  the  plaintiff  moved  to 
amend,  by  changing  the  venue  from  Bedfordshire  to  Middlesex,  on  the 
ground  that  the  action  depended  on  a  question  of  law,  as  to  the  construction 
of  an  inclosure  act,  and  would  therefore  be  tried  better  and  more  expedi- 
tiously in  town  ;  the  court,  on  the  affidavit  of  the  defendant,  that  the  cause 

(i)  Rastal,  tit.  Debt,  184,  (h).     Fitz.  Abr.  tit.  Brief,  18. 

(k)   1  Wms.  Saund.  5  Ed.  73,  4,  (2).  (/)  2  Salk.  670. 

(aa)  Trye's  jus.  fil.  231.  (bb)  Sty.  Pr.  (Ed.  1707,)  631. 

(cc)  The  case  of  Lord  Gerrardv.  Floyd,  (East,  16  Car.  2.)  1  Sid.  185,  is  said  to  be  the 
first  case  in  the  books,  on  the  subject  of  changing  the  venue ;  but  that  case  mentions  the 
common  affidavit,  and  common  rule  for  changing  the  venue,  which  shows  that  the  practice 
was  then  well  known  and  established:  and  see  2  Blac.  Rep.  1033. 

{d)  Cas.  Pr.  C.  P.  133.  Pr.  Reg.  430,  S.  C.  4  Maule  &  Sel.  233 ;  but  see  5  Taunt.  87, 
631.     2  Chit.  Rep.  417,  18. 

(«)  Sty.  P.  R.  625,  R.  M.     10  Geo.  II.  reg.  2,  (c),  K.  B. 

(/)  2  Str.  1162.  Iff)  2  Barnard.  K.  B.  153.     2  Str.  1202. 

(h)   1  Wils.  173  ;  and  see  Barnes,  12,  488. 

(ii)  Say.  Rep.  150,  294.     1  Ken.  368,  S.  C.    2  Bur.  1098. 

(kk)  4  East,  433.  («)  4  East,  435. 

(m)  2  New  Rep.  C.  P.  58. 


OF  CHANGINa  THE  VENUE.  602 

of  action  arose  in  Bedfordshire,  tli.scharged  the  rule.(72)    So,  where 
an  attorney  has  waived  liis  privilege  to  sue  in  *  Middlesex,  by  hiy-  [  *G03] 
ing  the  venue  in  another  county,  he  cannot  avail  himself  of  his 
privilege  by  amending,  so  as  to  change  the  venue  to  Middle  sex. {(t) 

The  defendant  is  in  general  allowed  to  change  the  venue  in  all  transitory 
actions,  arising  in  a  county  different  from  that  where  the  plaintiff  has  laid 
it  ;{b)  and  he  may  even  change  it  from  London  to  MiddleHex,{c)  or  vice 
versd.{dd)  But  the  venue  cannot  be  changed  in  local  actions  :{ee)  And  in 
transitory  actions,  where  material  evidence  arises  in  two  counties,  the  venue 
may  be  laid  in  either  :{ff)  and  if  it  be  laid  in  a  third  county,  the  courts  will 
not  change  it ;  for  the  defendant  in  such  case  cannot  make  tlie  necessary  affi- 
davit, that  the  cause  of  action  arose  in  a  particular  county,  and  not  else- 
where.(//)  Thus,  where  the  venue  was  laid  in  London,  and  it  appeared  from 
the  affidavit,  that  the  cause  of  action  arose  upon  a  bridge  called  King's 
bridge,  partly  in  the  county  of  Kent,  and  partly  in  the  county  of  the  city  of 
Canterbury,  and  not  elsewhere,  the  court  refused  to  change  the  venue. (/t) 
And  for  a  similar  reason,  the  venue  cannot  be  changed  in  an  action  against 
a  carrier,(z)  or  lighterman, (A:)  or  for  an  escape,(^)  or  false  return. (w)  !So,  in 
scire  facias  to  repeal  a  patent,(w)  or  action  for  infringing  it,(o)  the  de- 
fendant cannot  change  the  venue  from  Middlesex,  to  any  other  county  ; 
nor  can  the  venue  be  changed,  in  such  an  action,  from  one  county  to  an- 
other, (ji?) 

"When  the  cause  of  action  arises  out  of  the  realm,  the  courts  will  not 
change  the  venue  ;  because  the  action  may  as  well  be  tried  in  the  county 
where  the  venue  is  laid,  as  in  any  other  where  the  cause  of  action  did  not 
arise.(9')  So,  where  the  cause  of  action  partly  arose  in  Derbyshire  and 
partly  in  Ireland,  the  court  of  King's  Bench  refused  to  change  the  venue 
from  London  to  Derbyshire,  on  an  affidavit  that  the  cause  of  action  arose  in 
the  county  of  Derby  and  in  Ireland,  and  not  in  London,  or  elsewhere  than 
in  the  county  of  Derby  and  in  Ireland.{r)  And  as  it  is  necessary,  for 
changing  the  venue,  that  the  cause  of  action  should  be  wholly  confined 
to  a  single  county,  the  courts  will  not  change  it  in  an  action  of  debt  on 

(n)  6  Taunt.  408.     2  Marsh.  121,  S.  C. 

(a)   7  Taunt.  146.     2  Marsh.  426,  S.  C. 

(6)  R.  M.  1654,  §  5,  K.  B.     R.  M.  1054,  §  8,  C.  P.     Barnes,  491. 

(c)  2  Str.  857.     Barnes,  487.     Pr.  Reg.  430,  S.  C. 

(dd)  2  Durnf.  &  East,  275.     Cas.  Pr.  C.  P.  41.     Pr.  Reg.  429,  30.     Barnes,  481. 

(ee)  Say.  Rep.  146. 

(/)  7  Co.  2,  a.  2  Salk.  669,  R.  M.  10  Geo.  II.  reg.  2,  (o),  K.  B.  2  Dumf.  &  East,  275. 
1  Durnf.  &  East,  58.3.     7  Moore,  520. 

(ff)  7  Durnf.  &  P^ast,  205.  3  Bos.  &  Pul.  579.  Rowland  v.  Knapp,  II.  41  Geo.  III.  C. 
P.  Id.  579,  80.  3  Taunt.  464.  2  Wms.  Saund.  5  Ed.  5,  (3) ;  but  .sec  2  Bhic.  Rep.  940. 
1  New  Rep.  C.  P.  110,  310.  1  Taunt.  259.  6  Taunt.  565,  566.  2  Marsh.  278,  S.  C.  2 
Moore,  64. 

(h)   1  Wils.  178. 

(i)  Edie  V.  Glover,  IT.  27  Geo.  III.  K.  B. ;  but  see  4  Taunt.  729. 

(k)  2  Salk.  670. 

(/)  Id.  1  Keb.  65.  1  Sid.  87.  Barnes,  491.  2  Marsh.  152 ;  but  see  Barnes,  493.  2  Chit. 
Rep.  418. 

(m)  2  Salk.  669.     2  Str.  727.     Say.  Rep.  54.     1  Wils.  336,  S.  C. 

(nn)   2  Cox,  235. 

(o)  6  Durnf.  &  East,  363.     1  East,  115,  (a).     2  Chit.  Rep.  418. 

(;))  Per  Cur.  T.  22  Geo.  III.  K.  B.     7  Dowl.  k  Ryl.  103,  4. 

(q)  Say.  Rep.  77.  Cowp.  176;  and  see  1  H.  Blac.  280.  1  Taunt.  259,  60.  2  Taunt.  197. 
6  Taunt.  569.     2  Marsh.  280,  S.  C. 

(r)  4  East,  495;  and  see  2  New  Rep.  C.  P.  397.     3  Bing.  429. 


603 


OF  CHANGING  THE  VENUE. 


[  *604  ]  bond  *or  other  speciality, (a)  or  in  covenant  on  alea8e,(J)  or  policy 
of  insurance  by  deed,(6')  or  in  assumpsit  or  on  an  award, (c?)  or 
charter  party  of  affreightment,  (e)  unless  some  special  ground  be  laid  :  (/)  for 
debitum  et  contractus  sunt  nullius  loci,  and  bonds  and  other  specialities 
are  bo?ia  notabilia  wherever  they  happen  to  he.{gg)  And  it  is  now  holden 
in  the  King's  Bench,(AA)  agreeably  to  the  practice  of  the  court  of  Common 
Pleas,(iY)  that  the  venue  cannot  be  changed,  unless  upon  a  special  ground, (M) 
in  an  action  upon  a  promissory  note,  or  bill  of  exchange.  And  if  an  action 
be  bond  fide  brought  on  a  promissory  note,  the  plaintijQF  may  retain  the  venue, 
though  the  action  be  for  other  causes  also  ;  and  the  court  will  not  restrain 
the  plaintiff  from  proceeding  in  the  county  he  has  elected,  for  the  other 
causes. (Z^)  But  the  venue  may  still  be  changed  in  an  action  upon  a  policy  of 
insurance,  not  being  by  deed  ;(m)  or  in  any  other  action,  the  right  of  which, 
is  founded  upon  simple  contract,  (w)  And  in  covenant  upon  a  lease,  for  di- 
verting water  from  a  mill,  &c.  a  view  being  proper  to  be  had,  the  venue  was 
changed  in  one  case,  to  the  county  where  the  premises  lay  ;  though  most  of 
the  plaintiff's  witnesses  resided  in  the  county  where  the  venue  was  laid  :(o) 
But,  from  a  subsequent  case  it  seems,  that  the  granting  of  a  view  is  not 
alone  a  sufficient  reason  for  changing  the  venue,  in  an  action  of  cove- 
nant.[p) 

The  venue  may  be  changed  in  an  action  for  criminal  conversation,  on  the 
usual  affidavit,  that  the  whole  cause  of  action,  if  any,  arose  in  the  county  to 
which  it  is  changed ;  for  the  whole  cause  of  action  is  the  trespass  committed 
on  the  plaintiff's  wife.(^)  So,  the  venue  may  be  changed  in  an  action  for  an 
assault,  (r)  And  the  court  of  Common  Pleas  will  change  it  in  a  penal  action, 
on  the  usual  affidavit  as  well  as  in  any  other. (s)  In  an  action  on  the  case, 
for  overturning  the  plaintiff  in  a  stage  coach,  the  venue  may  be  changed  into 
the  county  whez'e  the  accident  happened.(^)  And  it  is  no  reason  against 
changing  the  venue,  that  if  changed,  the  cause  is  likely  to 
[  *605  ]  *be  tried  by  persons  interested  in  the  question,  if  they  are  likely 
to  have  as  strong  an  interest  on  one  side  as  on  the  other,  (aa)  But, 
in  an  action  ioxscandalum  magnatum,  the  courts  will  never  change  the 
venue  ',{bb)  because  a  scandal  raised  of  a  peer  of  the  realm  is  not  confined  to 

{a)  1  Keb.  65.  1  Sid.  8Y.  Sty.  P.  R.  631.  2  Str.  878.  Andr.  66,  R.  M.  10  Geo.  II. 
(c),  KL  B.  Gilb.  K.  B.  339.  Gilb.  C.  P.  90.  Balein  v.  Kent,  E.  20  Geo.  III.  K.  B.  Barnes, 
491.  {b)   2  Chit.  Rep.  419,  20.  (c)  1  M'Clel.  &  Y.  212. 

{d)  2  Bos.  &  Pul.  355.     3  Barn.  &  Ores.  9.     4  Dowl.  &  Ryl.  635,  S.  C. 

(e)  7  Taunt.  306.     1  Moore,  54,  S.  C. ;  but  see  4  Bing.  39. 

(/)  Pole  V.  Uorobin,  M.  22  Geo.  III.  K.  B.,  cited  in  1  Durnf.  &  East,  782,  (a).  1  Durnf. 
&  East,  781 ;  and  see  1  Bos.  &  Pul.  425.     8  East.  268. 

(ffg)   1  Durnf.  &  East,  571. 

{hh)  Andr.  66,  joe/-  Chappie,  J.  R.  M.  10  Geo.  II.  (c),  K.  B.  Precious  v.  Benetf,  E.  25  Geo. 
III.  K.  B. ;  but  see  the  opinion  of  the  other  justice,  in  Andr.  66.  1  Wils.  41.  Say.  Rep.  7, 
contra. 

{ii}  Gas.  Pr.  C.  P.  119.  Pr.  Reg.  417,  18.  Barnes,  480,  483,  485,  487,  491,  492.  2  Blac. 
Rep.  993.     1  Bos.  &  Pul.  20.     2  Bos.  &  Pul.  355. 

(kk)  Per  Cur.  T.  25  Geo.  III.  K.  B.     2  Chit.  Rep.  418,  19.     Id.  (a). 

(U)  5  Taunt.  576.     2  Dowl.  &  Ryl.  164;  but  see  7  Price,  564,  semb.  contra. 

(m)  Andr.  66.  2  Str.  1180.  Say.  Rep.  7.  2  Durnf.  &  East,  275.  7  Durnf.  &  East.  205  ; 
but  see  1  M'Clel.  &  Y.  212. 

(n)  Sav.  Rep.  7.  (o)  8  East,  268  ;  but  see  2  Chit.  Rep.  419,  20. 

(p)  2  Chit.  Rep.  419,  20. 

(q)  10  East,  32  ;  and  see  2  Chit.  Rep.  417  ;  7  Moore,  62.  (r)  2  Chit.  Rep.  417. 

(s)  5  Taunt.  754.     1  Marsh.  320,  S.  C. ;  but  see  1  Sid.  287,  semb.  contra. 

(t)  4  Taunt.  729.  (aa)  5  Taunt.  605. 

(bb)  1  Lev.  56.  2  Salk.  688.  Carth.  400,  S.  C.  2  Str.  807.  Barnes,  482.  Cas.  Pr.  C.  P. 
132.     Pr.  Reg.  417.     S.  C.  Gilb,  C.  P,  90. 


OF  CHANGING  THE  VENUE.  605 

any  particular  county,  but  reflects  on  him  through  the  whole  kingdom ;  and 
he  is  a  person  of  so  great  notoriety,  that  there  is  no  necessity  for  obliging 
him  to  try  his  cause  in  the  neighbourliood.  So,  in  an  action  fur  a  libel,  pub- 
lished in  a  newspaper  in  oiie  county,  and  circulated  in  other  countie8,(t')  or 
contained  in  a  letter,  written  by  the  defendant  in  one  county,  and  directed 
into  anothcr,((^)  the  court  of  King's  Jk-ncii  will  not  change  the  venue ; 
because  the  defendant  cannot  make  the  common  aflidavif,  that  the  cause  of 
action  arose  in  a  single  county,  and  not  elsewhere:  Kut  the  court  will  change 
the  venue  into  a  county  in  which  the  libel  was  both  written  and  published  :{e) 
And  the  distinction  seems  to  be,  between  a  libel  which  is  dispersed  through 
several  counties,  and  a  letter  which  is  written  in  one  county  and  not  opened 
in  another ;  on  the  former,  the  venue  cannot  be  changed,  on  the  latter  it 
may.(/) 

Though  the  courts  in  general  will  not  change  the  venue,  when  it  is  laid 
in  the  proper  county,  yet  they  will  change  it  even  then,  upon  a  special 
ground  :{g)  Thus,  in  debt  on  bond,  where  the  venue  was  laid  in  London^ 
and  the  plaintiff's  and  defendant's  witnesses  lived  in  Lincolnshire,  the  court 
of  King's  Bench  changed  it  into  the  latter  county. (^)  So,  where  the  cause 
of  action  arose  in  another  county  than  that  in  which  the  venue  is  laid  by  the 
plaintiff",  and  the  justice  of  the  case  requires  the  trial  to  be  had  there,  all  the 
witnesses  residing  at  a  great  distance  from  the  county  where  the  venue  is 
laid,  the  courts,  on  the  application  of  the  defendant,  will  change  the  venue, 
on  his  agreeing  to  admit  a  particular  fact,  which  in  point  of  form  exists  in 
the  original  co\inty.[i)  But  in  an  action  by  an  attorney  for  an  escape,  it  is 
not  a  sufficient  ground  for  deviating  from  the  general  rule  not  to  change  the 
venue  in  such  case,  that  the  witnesses  on  both  sides  reside  in  the  county  to 
which  the  venue  is  wished  to  be  changed. (A;) 

When  a  fair  and  impartial  trial  cannot  be  had  in  the  county  where  the 
venue  is  laid,  the  courts,  on  an  affidavit  of  the  circumstances,  will  change  it, 
in  transitory  actions  \{l)  or,  in  local  actions,  will  give  leave  to 
enter  a  *suggestion  on  the  roll,  with  a  nient  dedire,  in  order  to  [  *606  ] 
have  the  trial  in  an  adjoining  county  :{a)  And  the  parties  by  con- 
sent may  change  the  venue  in  local  actions,(6)  or  have  them  tried  out  of 
their  proper  county,  such  consent  being  entered  by  suggestion  on  the  roll.(6r) 
On  the  other  hand,  though  the  courts  will  in  general  change  the  venue, 
where  it  is  not  laid  in  the  proper  county,  yet  if  an  impartial  or  satisfactory 
trial  cannot  be  had  there,  they  will  not  change  it ;  as  in  an  action  for  words 
spoken  of  a  justice  of  the  peace,  by  a  candidate  upon  the  hustings,  at  a 


(c)  Iloskins  V.  Ridgway,  H.  23  Geo.  III.  K.  B.     1  Durnf.  &  East,  571. 

(d)  1  Diirnf.  &  East,  (547.     1  Brod.  &  Bing.  299. 

(e)  3  Durnf.  &  East,  306.  Aris  v.  Taylor,  T.  35  Geo.  III.  K.  B. ;  and  see  1  Moore  &  P. 
188. 

(/)   3  Durnf.  k  East,  C52. 

{g)   2  Chit.  Rep.  418,  19. 

(A)  1  Durnf.  k  East,  781  ;  and  see  1  Bos.  k  Pul.  20,  425.  1  Chit.  Rep.  334;  but  see  1 
Wils.  162.  1  Durnf  &  East,  782,  in  notia.  2  Marsh.  152.  6  Price,  612.  7  Mooro,  82,  520. 
3  Barn,  k  Cress.  552. 

(t)  3  East,  329.  Edit  v.  Glover,  H.  27  Geo.  III.  K.  B. ;  and  see  2  Chit.  licp.  418,  19.  3 
Bos.  k  Pul.  581.     8  Taunt.  635. 

{k)   1  Marsh.  152  ;  and  sec  2  Chit.  Rep.  418,  19. 

(^  2  Str.  874.  3  Bur.  1564.  1  Blac.  Rep.  480,  S.  C. ;  but  see  1  Baraard,  K.  B.  283. 
Foley  V.  Lord  Peifrborough,  H.  25  Geo.  III.  K.  B. 

(a)   10  Mod.  198.     1  Str.  235.     3  Bur.  1334.     1  Durnf.  k  East,  363. 

{b)   1  Wils.  298.      Groves  v.  Durall,  II.  38  Geo.  III.  K.  B. 

\cc)  Fonnerau  v.  Fonnerau,  in  K.  B.^er  Cur. 

Vol.  I.— 38 


gQg  OF  CHANGING  THE  VENUE. 

county  electIon.(c?)  And,  in  order  to  avoid  delay,  the  courts  will  not  change 
the  venue,  except  by  consent,  or  upon  an  affidavit  of  merits,(e)  into  the  city 
of  Bristol  or  Norwich,  where  there  are  no  Lent  assizes,  in  Michaelmas  or 
Hilary  term ;(/)  nor  into  Hull,  Canterbury,  &c.  where  the  justices  of 
nisi  prius  seldom  come  ;{g)  nor  into  the  city  of  Worcester  or  Crloucester, 
out  of  the  county  at  large,  because  the  assizes  for  the  city  and  county  at 
large  are  holden  at  the  same  place.  (A)  But  the  venue  may  be  changed, 
as  a  matter  of  course,  into  the  city  of  Bristol,{ii)  &c.  previous  to  the 
summer  assizes. 

So,  when  the  venue  is  not  laid  in  the  proper  county,  the  privilege  of  the 
plaintiff  will  in  some  cases  prevent  the  courts  from  changing  it.  Thus,  in 
an  action  brought  by  a  serjeant,(M)  barrister, (ZZ)  attorney,(m)  or  other  officer 
of  the  court, (w)  if  the  venue  be  laid  in  Middlesex,  the  plaintiff,  suing  as  a 
privileged  person,  has  a  right  to  retain  it  there,  on  account  of  the  supposed 
necessity  of  his  attendance  on  the  court :  But  if  the  venue  be  laid  in  any 
other  county,  as  in  London  ;{o)  or  the  plaintiff,  though  privileged,  sue  as  a 
common  person,  by  original  or  otherwise,(p)  or  en  auter  droit,  as  execu- 
tor or  administrator,  or  jointly  with  his  wife  or  other  persons, (9')  he  has  no 
such  privilege :  and  the  court  will  not  suffer  him  to  use  his  privilege,  so  as 
to  oppress  a  defendant. (r)  When  a  Serjeant,  barrister,  attorney,  or 
[  *607  ]  other  *officer  of  the  court  is  defendant,  he  has  no  privilege  what- 
ever respecting  the  venue. (a) 

It  was  formerly  doubted,  whether  the  venue  could  be  changed,  without 
consent,  into  Wales,{b)  or  the  next  adjoining  English  county  ;(<?)  and  the 
objection  in  the  latter  case  was,  that  the  defendant  could  not  make  the 
common  affidavit,  which  is  never  dispensed  with,  that  the  cause  of  action 
arose  in  that  particular  county  and  not  elsewhere. ((ic?)  But  now,  since  the 
latitat  is  holden  to  run  into  Wales,  it  has  become  the  common  practice  to 
change  the  venue  directly  from  an  English  to  a  Welch  county  -.[ee]  and  this 
is  80  much  a  matter  of  course,  that  the  rule  for  changing  it  is  absolute  in 

(d)  Cowp.  510  ;  and  see  2  Salk.  670.     4  Burr.  244Y. 

\e)  1  Chit.  Rep.  14. 

(/)  Cas.  Pr.  C.  P.  129.  Barnes,  481,  S.  C.  Pr.  Reg.  428.  2  Str.  1180,  1216.  1  Wils. 
138.  Per  Cur.  M.  37  Geo.  III.  K.  B. ;  and  see  3  Blac.  Com.  294.  5  Price,  613.  But  see  1 
Chit.  Rep.  334,  where,  in  an  action  on  a  bond,  the  venue  was  changed  from  London  to 
Northumberland,  in  Easter  term,  on  an  affidavit  stating  that  all  the  defendant's  witnesses 
lived  there,  on  the  terms  of  withdrawing  the  plea  of  non  est  factum. 

(g)  R.  M.  1654,  ^  9.     K.  B.  R.  M.  1654,  g  12,  C.  P.     Barnes,  489,  90. 

(A)  Barnes,  490. 

hi)  Stanley  v.  Preston,  T.  24  Geo.  III.  K.  B.     Tucker  v.  Morgan  E.  35  Geo.  III.  K.  B. 

{kk)  Pr.  Reg.  420. 

\ll)  2  Show.  176,  242.  1  Mod.  64.  Sty.  Rep.  460.  2  Salk.  668,  670,  671.  2  Ld.  Raym. 
1556.     2  Str.  822.     1  Wils.  159.     1  Blac.  Rep.  19  S.  C. 

(m)  2  Salk.  668.  Say.  Rep.  153,  180.  Barnes,  479.  Pr.  Reg.  418,  S.  C.  Barnes,  487, 
493.     2  Blac.  Rep.  1065.     2  Marsh.  152.     Ante,  80,  320. 

(n)  2  Salk.  670.     2  Ld.  Raym.  1253. 

\o)  2  Salk.  668.     7  Taunt.  146.     2  Marsh.  426,  S.  C. 

\p)  Cas.  P.  R.  C.  P.  132,  145.     Pr.  Reg.  419,  20.     Barnes,  479,  484,  S.  C. 

{q)  R.  M.  10  Geo.  II.  reg.  2,  (c),  K.  B. 

(r)  Tomlinson  v.  Harrison,  M.  16  Geo.  III.  K.  B. 

\a)  Carth.  126.  1  Show.  148.  4  Bur.  2027.  Sparke  v.  Stokes,  one,  ^c.  H.  24  Geo.  III. 
K.  B.  3  Durnf  &  East,  573.  Barnes,  482.  Pr.  Reg.  419.  Cas.  Pr.  C.  P.  134,  S.  C. ;  but  see 
a  Salk.  668.     1  Str.  619.     2  Str.  1049,  contra. 

(b)  Say.  Rep.  48.  Doug.  262,  3.  Jones  v.  Thomas,  T.  22  Geo.  III.  K.  B.  cited  in  Doug. 
263,  n. 

(c)  2  Str.  1258.     1  Wils.  138,  S.  C.  (dd)  4  Bur.  2452. 
(ee)  2  Str,  1270.     1  Wils.  222.     4  Bur,  2450.     2  Blac.  Rep.  962      6  Bast,  355, 


or  CHANGING  THE  VENUE.  607 

the  first  instance,  on  the  usual  affidavit. (/)  So,  the  venue  has  been  fre- 
quently changed  into  the  counties  palatine  ;  because  the  courts  can  send 
down  the  record  there  by  ynitthnus  :(ff)  and,  in  one  instance,  it  was  changed 
into  the  next  adjoining  county. (A)  liut  where  the  venue  is  changed  into  a 
county  pahitine,  the  courts  will  re(iuire  an  undertaking  from  the  defend- 
ant, not  to  assign  for  error  tlie  want  of  an  original. (e)  And,  in  tlic  Com- 
mon Pleas,  it  is  considered  as  a  matter  of  favour  to  change  the  venue  to  a 
county  palatine ;  and  therefore,  where  it  would  be  attended  with  inconve- 
nience to  the  plaintiff,  that  court  will  not  grant  the  indulgence. (Ar)  So, 
they  will  not  permit  one  only  of  several  defendants  to  change  the  venue 
to  a  county  palatine  ;  because  they  have  in  that  case  no  authority  to  bind 
the  other  defendants,  to  the  terms  of  not  assigning  for  error  tlie  want  of 
an  original  :(^)  And  where  one  of  several  defendants  liad  sufl'erefl  judg- 
ment by  default  in  Middlesex,  the  court  would  not,  on  the  apj)lication  of 
another  defendant,  change  the  venue  to  a  county  palatine.(7??)  So,  where 
the  venue  was  laid  in  a  county  palatine,  and  after  a  writ  of  inquiry  exe- 
cuted, and  final  judgment  signed,  a  writ  of  error  was  brought,  and  error 
assigned  for  want  of  an  original,  the  com-t  would  not  amend  the  declaration 
by  changing  the  venue :(??)  And  where,  in  an  action  by  original  against 
four  defendants,  the  venue  was  changed  into  a  county  palatine,  on  the 
application  of  three  of  them,  who  appeared  separately  by  one  attorney, 
and  undertook  not  to  assign  the  want  of  an  original  for  error, 
the  court  of  King's  Bench  required  *a  similar  undertaking  from  [  *608  ] 
i\ie  fcnirth,  who  had  appeared  by  a  different  attorney. (^)  Where 
the  cause  of  action  arises  in  Berwick,  and  the  venue  is  laid  elsewhere,  it  is 
not  settled,  whether  it  can  be  changed  into  Northumherland,  as  being  the 
next  adjoining  county  :{6)  But  it  seems  that  the  courts,  upon  a  proper 
suggestion,  will  order  the  cause  to  be  tried  there,  (c) 

In  the  King's  Bench,  the  motion  for  a  rule  for  the  defendant  to  change 
the  venue  is  in  general  a  motion  of  course,  requiring  only  counsel's  signa- 
ture ;  and  must  formerly  have  boon  made  within  eight  days  after  the  de- 
claration delivered, ((i)  which  was  the  time  allowed  by  the  rules  of  the  court, 
for  pleading  :(c)  And  accordingly  it  is  said,(^)  that  if  a  declaration  be  de- 
livered so  early  in  term,  that  the  defendant  has  eight  days  in  that  term, 
he  cannot  move  to  change  the  venue  the  next  term.  But  it  is  now  settled, 
that  where  the  defendant  has  not  obtained  an  order  for  time  to  plead,  he 
may  move  to  change  the  venue,  at  any  time  before  plea  pleaded  :{gg)  and 
he  is  even  allowed  to  change  it,  after  an  order  for  time  to  plead,  though 
upon  the  terms  of  pleading  issuably  \{hh)  but  not  after  an  order  for  time  to 

(/)  6  East,  355.  Powell  v.  Wilking,  H.  37  Geo.  III.  K.  B.  Anon.  H.  37  Geo.  III.  K.  B. 
contra. 

(ff)  2  Ld.  Raym.  1418.  1  Wils.  222.  7  Durnf.  &  East,  735;  but  see  2  Str.  807.  Cas. 
Pr.  C.  P.  91,  129.     Pr.  Ileg.  428.     9  Barnes,  478,  481,  488,  contra. 

(A)   12  Mod.  313  ;  and  see  Pr.  Reg.  428. 

(t)  1  Sel.  Pr.  2  Ed.  251.  Marsden  v.  Bell,  E.  28  Geo.  III.  C.  P.  Imp.  C.  P.  7  Ed.  218, 
220.     1  Taunt.  120.     13  Price,  52,  S.  P.     Ante,  105.     Append.  Chap.  XXIV.  2  4. 

(k)   1  Taunt.  432.  (/)   5  Taunt.  87  ;  and  see  2  Chit.  Hep.  417,  18.     Antf,  602. 

(m)  5  Taunt.  631  ;  and  see  2  Chit.  Rep.  417,  18  ;  but  see  4  Maule  &  Sel.  233.  Cas.  P.  R. 
C.  P.  133.     Pr.  Reg.  430,  S.  C. 

(n)  7  Taunt.  466.     1  Moore,  186,  S.  C. ;  and  see  6  Moore,  567. 

(a)  4  .Maule  &  Sel.  233.  (b)  2  Blac.  Rep.  1036,  1068;  and  see  2  Ken.  519. 

(c)   2  Bur.  859.  (</)   2  Salk.  G68. 

(e)  Id.  2  Str.  1192.  (/)   1  Str.  211  ;  and  see  R.  M.  1654,  J  5,  K.  B. 

(gff)  R.  M.  1054,  ?  5,  K.  B.     Gilb.  K.  B.  339. 

(hh)  Say.  Rep.  207.  Saxby  v.  Ly»,  M.  26  Geo.  III.  K.  B.  Hudton  v  Netdham,  T.  27  Geo. 
III.  K.  B. 


608 


OP  CHANGING  THE  VENUE. 


plead,  where  the  terms  are  to  plead  issuablj,  and  take  short  notice  of  trial, 
at  tlie  first  or  other  sittings  within  term,  in  London  or  Middlesex  ;  because 
a  trial  would  by  that  means  be  lost.(^)  And,  for  the  same  reason,  a  de- 
fendant under  terms  of  taking  short  notice  of  trial  for  the  sittings  in  Middle- 
sex, after  a  non-issuable  term,  cannot  move  to  change  the  venue  into  the 
country,  upon  the  common  affidavit.  1  Man.  &  Ryl.  142.  And  the  venue 
cannot  in  general  be  changed,  at  the  instance  of  the  defendant,  after  plea 
pleaded ;  even  though  he  afterwards  have  leave  to  withdraw  his  plea,  and 
plead  it  de  novo,  with  a  notice  of  set-off. (A;)  In  the  Common  Pleas,  the 
motion  is  for  a  rule  to  show  cause ;  and  may  be  made,  as  in  the  King's 
Bench,  at  any  time  before  plea  pleaded, (/)  notwithstanding  the  defendant 
may  have  previously  applied  for  and  obtained  further  time  to  plead, (m) 
unless  he  be  under  terms  of  taking  short  notice  of  trial  in  Londoti  or  Middle- 
sex ;{n)  or  for  the  adjourned  sittings  after  term  in  London.io)  But  the 
motion  cannot  in  general  be  made  after  the  defendant  has  pleaded  in  abate- 
ment,(j9)  or  in  bar  •,[q)  though  if  he  plead  pending  a  rule  wm  for  changing 

the  venue,  this  will  not  prevent  the  court  from  making  it  abso- 
[  *609  ]  lute  :(r)  and  being  for  a  rule  *to  show  cause,  the  motion  cannot 

regularly  be  made  on  the  last  day  of  term,  unless  the  declaration 
was  delivered  so  late  in  the  term,  that  the  defendant  had  not  an  opportu- 
nity of  making  it  sooner,  (a)  In  the  Exchequer,  the  court  will  not  change 
the  venue  in  any  case  where  a  trial  has  been  had  :(6)  And  in  that  court, 
the  defendant  cannot  change  the  venue,  after  having  obtained  an  order  for 
time  to  plead,  "  on  all  the  usual  terms  ;"  it  being  considered  as  one  of  these 
terms,  that  the  defendant  shall  not  afterwards  move  to  change  the  venue  :(<?) 
Therefore,  when  the  order  is  intended  to  be  without  prejudice  to  a  change 
of  venue,  it  should  be  so  expressed  in  the  summons. (c)  And  the  court 
will  not  order  the  venue  to  be  changed,  after  an  order  for  time  to  plead, 
although  the  defendant  proposes  to  give  judgment  of  the  term.(c) 

In  order  to  change  the  venue,  when  not  laid  in  the  proper  county,  the 
defendant,  in  all  the  courts,  must  make  a  positive  affidavit,  that  "  the  plain- 
tiff's cause  of  action,  {if  any,)  arose  in  the  county  of  A.  and  not  in  the 
county  of  B.  (where  the  venue  is  laid,)  or  elsewhere  out  of  the  county  of 
A.'\d)  An  affidavit  was  necessary,  because  the  motion  to  change  the  venue 
succeeded  and  was  equivalent  to  a  plea  in  abatement  ;(g)  and  the  form  of  the 
affidavit,  which  was  settled  so  long  ago  as  the  reign  of  King  Charles  the 

(i)  Cowp.  511.     T  Durnf.  &  East,  698  ;  but  see  1  Wils.  245,  contra. 

{k)  Palmer  ^  Turner,  H.  26  Geo.  III.  K.  B.     3  Bos.  &  Pul.  13,  {b). 

{I)  R.  M.  1654,  I  8,  C.  P. 

(to)  Willes,  318.  Barnes,  489.  R.  M.  16  Geo.  II.  C.  P.  Before  the  making  of  this  rule, 
the  defendant,  in  the  Common  Pleas,  could  not  have  moved  to  change  the  venue,  after 
taking  out  a  summons,  or  obtaining  an  order,  for  further  time  to  plead.  Gas.  Pr.  C.  P.  126. 
Barnes,  478,  481,  483,  485,  6  Pr.  Reg.  424,  5,  6.  S.  C. ;  and  see  Gas.  Pr.  G.  P.  159.  Pr. 
Reg.  425.     Barnes,  487,  S.  C.     2  Bos.  &  Pul.  320. 

(n)  Barnes,  478.     2  Bos.  &  Pul.  320.     3  Bos.  &  Pul.  12. 

(o)  Barnes,  493.     1  Bing.  186.     7  Moore,  598,  S.  G.  {p)  4  Bing.  18. 

[q)  Gas.  Pr.  G.  P.  33,  112.  Pr.  Reg.  423,  S.  G.  Pallister  v.  Willan,  T.  33  Geo.  III.  C.  P. 
Imp.  C.  P.  7  Ed.  222,  3.     2  Moore,  64.     8  Taunt.  169,  S.  G. 

{r)   Gas.  Pr.  G.  P.  136.    Pr.  Reg.  423,  S.  G.    Barnes,  492.    3  Bos.  &  Pul.  12.    1  Taunt.  58. 

(a)  Barnes,  480,  486,  489.     Pr.  Reg.  426,  7.     Ante,  498,  9.  (6)   1  Price,  146. 

(c)  3  Price,  3.     2  M'Glel.  &  Y.  106. 

{d)  Sty.  P.  R.  631.  R.  M.  10  Geo.  II.  reg.  2,  (c),  K.  B.  Fleetwood  v.  Cross,  H.  26  Geo. 
III.  K.  B.  3  Durnf.  &  East,  495 ,  and  see  Append.  Chap.  XXIV.  §  1 ;  and  for  the  rule 
thereon,  see  id.  §  2. 

(e)  2  Blac.  Rep.  1033. 


OF  CIIANGIXO  THE  VENUE.  609 

Beconfl,(/)  has  been  ever  most  rcH^riously  fidhered  to.(q)  Upon  this  affida- 
vit, the  clerk  of  the  ruh'S  will  draw  ujj  a  rule  for  chaii;,'infi;  the  veiiu(?  in  the 
King's  Bench,  which  is  absolute  in  the  first  instance. (/i)  But  inconvenience 
having  arisen  from  the  venue  having  been  improperly  changed,  without 
adverting  to  the  cause  of  action,  a  rule  was  made  in  that  court,  that  in 
future,  all  rules  for  changing  the  venue  in  any  action,  should  be  drawn  up 
"  upon  reading  the  declaration,"(0  &c. :  and  accordingly,  the  court  will  not 
change  the  venue,  unless  the  affidavit  state  what  the  cause  of  action  is,  or  it 
appear  by  producing  the  declaration,  that  it  is  of  such  a  nature  as  to  enable 
the  defendant  to  change  it. (A:)  In  the  Common  ]Meas,  the  rule  for  chang- 
ing the  venue  is  a  rule  to  show  cause  ;(/)  which  is  drawn  up  by  the  seconda- 
ries, on  the  usual  affidavit,  that  "  the  cause  of  action  arose  in  the  county  to 
which  it  is  sought  to  be  changed,  and  not  elsewhere, "(?«)  and  on 
inspecting  the  declaration. (?i)  If  the  defendant,  in  either  *court,  [  *G10  ] 
have  occasion  to  change  the  venue  in  varaficm,  he  may  obtain 
a  judge's  order  for  that  purpose,  on  producing  a  motion  paper,  signed  by  a 
counsel  or  Serjeant,  with  the  usual  alRdavit,  and  a  copy  of  the  declaration. 

Yet,  as  it  would  be  hard  to  conclude  the  plaintiff,  by  the  single  affidavit 
of  the  defendant,  he  is  at  liberty  to  aver,  that  the  cause  of  action  arose  in  the 
county  where  the  venue  is  laid,  and  go  to  trial  thereon  at  the  same  time  that 
the  merits  are  tried,  by  umlertaking  to  give  material  evidence,  arising  in 
that  county.  This  practice  is  equivalent  to  joining  issue,  that  the  cause  of 
action  arose  in  the  first  county  :  and  if  the  plaintiff  fail  in  jiroving  it,  he 
must  be  nonsuited  at  the  trial ;  which  has  in  this  case  the  same  effect,  as 
quashing  the  writ  by  a  judgment  on  a  plea  in  abatement,  viz.  quod  dcfendens 
eat  sine  die,  and  the  plaintiff  must  begin  again. (a) 

In  the  King's  Bench,  when  the  rule  to  change  the  venue  is  absolute  in 
the  first  instance,  the  only  wa}'-  by  Avhich  the  plaintiff  can  bring  it  back,  is 
by  a  separate  motion :  And  Avhen  the  venue  has  been  irregularly  changeil, 
as  where  the  affidavit  is  defective, (6)  &c.  the  motion  is  for  a  rule  nisi,  which 
the  court  will  make  absolute,  on  an  affidavit  of  service,  unless  good  cause  be 
shown  to  the  contrary.  But  when  the  venue  has  been  regularly  changed, 
the  motion  is  a  motion  of  course,  requiring  only  counsel's  signature ;  and 
the  court  will  require  an  undertaking  to  give  material  evidence  in  the  county 
in  which  the  venue  was  originally  laid.((?)  It  was  formerly  holden,  in  the 
King's  Bench,  that  the  plaintiff  must  inove  to  discharge  the  rule  for  changing 
the  venue,  before  replication  ;(c^)  and  therefore  that  he  came  too  late  after 
issue  was  joined,  and  delivered  to  the  defendant's  agent. (e)  But  now  as 
the  plaintiff  may  alter  his  venue,  by  moving  to  amend, (^^')  so,  for  avoiding 

(/)  1  Sid.  185,  442. 

Iff)  Say.  Rep.  77.  4  Bur.  2452.  3  Durnf.  k  East,  495.  Biirne.9,  477,  8,  9.  Pr.  Reg. 
421,  2,  S.  C. 

(A)   1  Chit.  Rep.  691,  (a).     Append.  Clmp.  XXIV.  ^  2. 

(i)  R.  T.  49  Geo.  III.  K.  H.     11  East,  27H.     1  Marsh.  243.     1  Chit.  Rep.  67,  (a). 

h)   1  Chit.  Rep.  57.  :!:!4. 

h)  Append.  Chap.  XXIV.  ^  5  ;  and  for  the  rule  absolute  thereon,  sec  id.  \  G. 

(m)   2  Marsh.  278,  9.     0  Taunt.  5f,7,  H.  C.      1  Chit.  Rep.  378. 

\n)  Append.  Chap.  XXIV.  ^  5.     1  rhit.  Rep.  57,  (n). 

(a)  2  Hlac.  Rep.  10.13;  andsee  Gilh.  C.  P.  Chap.  VII.     1  Wms.  Saund.  5  Ed.  74,  (2). 

h)  Fleetwood  v.  Crnnn,  H.  26  CJeo.  III.  K.  13.     3  Durnf.  k  East,  495. 

(c)  2  Salk.  G69.  6  Taunt.  5G7.  2  Marsh.  273,  S.  C.  1  Chit.  Rep.  378.  Append.  Chap. 
XXIV.  ?  4. 

(rf)  2  Str.  858. 

(c)  V.  Boddington  ^-  others,  M.  20  Geo.  III.  K.  B.  (/)  Ante,  692. 


gjQ  OF  CHANGING  THE  VENUE. 

circuity,  he  may  move  to  discharge  the  rule  for  changing  the  venue,  on 
undertaking  to  give  material  evidence  in  the  county  where  it  is  laid,  at  any 
time  before  the  cause  is  tried :  and  it  was  accordingly  discharged  in  one 
case,  after  the  cause  had  been  twice  taken  down  for  trial. (^)  If  the  venue 
be  changed  from  A.  to  B.,  on  the  usual  affidavit,  that  the  cause  of  action 
arose  wholly  in  B.  when  in  fact  a  part  of  it  arose  in  another  county,  it  was 
holdon  in  one  case,(7i)  that  the  venue  might  be  brought  back  to  A.  as  a  mat- 
ter of  course.  But  in  a  subsequent  case(t)  it  was  determined,  that  though 
the  venue  be  changed  by  the  defendant  upon  a  false  affidavit,  yet  the  plain- 
tiff cannot  bring  it  back  to  the  county  where  it  was  first  laid,  without  the 
usual  undertaking  to  give  material  evidence  in  that  county :  and  of  course, 
if  the  venue  be  laid  in  a  county  where  no  part  of  the  cause  of  action  arose, 

it  cannot  be  brought  back  into  that  county ;  nor  will  the  court, 
[  *611  ]   in  such  case,  change  it  into  the  *county  where  the  cause  of  action 

arose.(aa)  So,  where  the  venue  had  been  changed  by  the  defen- 
dant from  London  to  Staffordshire,  on  the  usual  affidavit,  that  the  cause  of 
action  arose  in  the  latter  county,  and  not  elsewhere,  the  court  of  King's 
Bench  would  not  bring  it  back  to  Londo7i,  on  an  affidavit  that  the  cause  of 
action  arose  partly  in  Staffordshire  and  partly  in  Worcestershire^  and  that 
a  material  witness  resided  in  London,  and  on  the  plaintiff's  undertaking  to 
give  material  evidence  in  one  or  other  of  those  counties  ;  particularly  as  no 
special  facts  were  stated,  to  show  that  the  defendant's  affidavit  was  not  cor- 
rect. (W)  And  mere  hardship  and  delay  in  being  obliged  to  try  a  cause  at 
Lancaster,  when  all  the  plaintiff's  witnesses  reside  in  London,  is  no  ground 
for  bringing  back  the  venue  to  the  latter  place,  unless  the  defendant  was 
under  terms  to  take  short  notice  of  trial  in  London,  and  had  undertaken  not 
to  assign  for  error  the  want  of  an  original  writ.((7c) 

In  the  Common  Pleas,  the  rule  for  changing  the  venue  being  only  a  rule 
nisi,  the  court,  on  showing  cause,  will  either  make  it  absolute  or  discharge 
it,  according  to  circumstances. (ci)  On  a  motion  to  change  the  venue  from 
London  to  Worcester  on  the  usual  affidavit,  an  affidavit  stating  that  the 
action  was  brought  for  the  seduction  of  the  plaintiff's  daughter,  and  that 
she  was  so  ill  it  was  not  expected  she  would  live  till  the  assizes,  was  holden, 
in  that  court,  to  be  an  answer  to  the  application. (e)  And  it  was  determined 
in  one  case,(/)  that  an  application  to  change  the  venue  from  A.  to  B.  in  an 
action  for  goods  sold  and  delivered,  upon  an  affidavit  that  the  cause  of  action 
arose  at  B.  and  not  elsewhere,  might  be  successfully  answered,  by  an  affida- 
vit that  the  goods  were  sold  at  C,  without  an  undertaking  by  the  plaintiff, 
to  give  material  evidence  in  A.  So,  where  it  appeared  that  the  action  was 
brought  on  a  charter-party  of  affreightment,  (^^^f)  or  that  the  cause  of  action 
principally  arose  in  Ir eland, {hh)  or  partly  in  a  foreign  country,(zV)  the  court 
discharged  a  rule  for  changing  the  venue.     But  the  circumstances  of  an 

(g)  Cowp.  409.  (A)  1  Durnf.  &  East,  205. 

(i)  6  East,  433.     2  Smith  R.  447,  S.  C. ;  and  see  1  Wils.  162.     10  East,  32. 

{aa)  Massey  v.  Anderton,  H.  43  Geo.  III.  8.  B.     1  Chit.  Rep.  691,  (a). 

{bb)  2  Bara.  &  Aid.  618.     1  Chit.  Rep.  377,  S.  C.  (cc)   1  Chit.  Rep.  691. 

(rf)  2  Marsh.  278,  9.  6  Taunt.  567,  S.  C.  1  Chit.  Rep.  378.  Append.  Chap.  XXIV. 
I  5,  6,  7. 

(e)  7  Moore,  62. 

(/)  3  Bos.  &  Pul.  579 ;  and  see  3  Taunt.  464 ;  but  it  should  be  observed,  that  these  deci- 
sions seem  to  have  been  since  overruled. 

{gg)   7  Taunt.  306.     1  Moore,  54,  S.  C.     Ante,  604.         \ 

{hh)  2  New  Rep.  C.  P.  397 ;  and  see  4  East,  495. 

(m)  2  Taunt.  197.     Ante,  603 ;  and  see  3  Bing.  429. 


OP  CHANGING  THE  VENUE.  611 

action's  being  brought  on  a  writing,  is  not  a  ground  for  rejecting  an  applica- 
tion to  change  the  venue,  unless  the  declaration  disclose  the  existence  of 
the  writing.(A;)  And  in  general,  where  there  has  been  no  irregularity,  the 
court  will  not  try  the  matter  u[»on  atiidavits ;  but  if  there  be  a  positive  aflB- 
davit  that  the  cause  of  action  arose  in  a  difTi-rcnt  countv  from  that  where  the 
venue  is  laid,  they  will  re((uire  an  undertaking  from  the  i)laintiff 
to  give  material  evidence  in  the  latter  county,  if  the  *  whole  cause  [  *612  ] 
of  action  is  supposed  to  have  arisen  there  ;{a)  but  if  it  arose  in 
several  counties,  the  court  will  retain  the  venue,  on  theplaintiflf's  undertak- 
ing, in  the  alternative,  to  give  material  evidence  in  some  of  them  :{l>}  And 
when  the  whole  cause  of  action  arises  abroad,  the  court  will  discharge  the 
rule  for  changing  the  venue,  without  any  undertaking  by  tiie  j)laintiff  to 
give  material  evidence  in  this  country. (c)  In  the  Exchecjuer,  as  in  the 
Common  Pleas,  the  rule  to  change  the  venue  is  a  rule  to  show  cause  :{dd) 
And  it  is  the  practice  in  the  former  court,  as  in  the  King's  Bench,  not  to 
discharge  the  rule  for  changing  the  venue,  without  an  undertaking  to  give 
material  evidence  in  the  county  in  which  it  was  originally  laid  •,{ee)  it  not 
being  sufficient,  as  in  the  Common  Pleas,  Avlien  the  cause  of  action  is  sup- 
posed to  have  arisen  in  several  counties,  to  undertake  to  give  material 
evidence  in  some  of  them.(ge) 

Originally  it  was  required,  that  the  plaintiff  should  give  no  evidence  at 
the  trial,  but  what  arose  in  the  county  wherein  the  venue  was  retained  :(ff) 
and  if  he  gave  no  such  evidence,  he  must  have  been  nonsuited  of  course. 
But  when  it  was  laid  down  (more  liberally,)  in  Sivaines  case,(_9/y)  tliat  the 
plaintiff  might  lay  his  venue  in  any  county,  wherein  part  of  the  cause  of 
action  arose,  he  was  then  bound  only  to  give  some  evidence,  {dare  aliquam 
evidentiam^)  and  not  the  whole,  in  the  county  where  the  venue  was 
laid,(AA)  or,  in  the  Common  Pleas,  when  it  arose  in  several  counties,  in  some 
of  them  \{i)  which  continues  to  be  the  rule  at  this  day.  The  evidence  how- 
ever must  be  material :  and  therefore  it  is  not  sufficient  merely  to  prove, 
that  the  witnesses  to  the  contract  reside  in  the  county  where  the  venue  is 
laid  :{kk)  And  the  undertaking  to  give  material  evidence,  does  not  apply  to 
collateral  issues,  but  must  be  confined  to  matters  stated  in  the  declaration. (/) 
In  the  King's  Bench,  when  the  venue  has  been  changed,  in  an  action  brought 
by  the  assignee  of  a  bankrupt,  the  plaintiff's  undertaking,  upon  bringing  it 
back  to  Middlesex^  is  satisfied  by  the  production  of  the  commission  of 
bankruptcy  tested  at  Westminster.{m)  And  in  an  action  for  an  escape, 
the  issuing  of  the  writ,  under  which  the  party  was  taken,  is  deemed  mate- 
rial evidence  ;(«)  or  the  patent,  in  an  action  for  infringing  it.(;i)     So,  where 

(k)  4  Binp.  39. 

(a)   1  H.  Blac.  216;  and  see  I  New  Rep.  C.  V.  110,  310. 

\b)  1  Taunt.  259.  6  Taunt.  565,  6.  2  Marsh.  278,  S.  C.  7  Taunt.  178.  2  Mar.sh.  494, 
S.  C,  but  differently  reported.  2  Moore,  64.  8  Taunt.  169,  S.  C.  3  Bing.  429 ;  and  see  I 
Chit.  Rep.  377,  (a). 

(c)  6  Taunt.  569.  2  Mar.sh.  280,  S.  C. :  and  see  1  H.  Blac.  280.  1  Taunt.  259,  60.  4 
East,  495.     2  New  Rep.  C.  P.  397.     2  Taunt.  197.     Ante,  603. 

(dd)  5  Price.  359,  612. 

\ee)  6  Price,  336  ;  but  see  5  Price,  359,  semb.  contra.  (f)   1  Keb.  859.     1  Sid.  442. 

(ffff)   1  Sid.  405.  (hh)   2  Salk.  669.     12  Mod.  515. 

(tj  1  Taunt.  259.  6  Taunt.  565,  6.  2  Marsh.  278,  S.  C.  2  .Moore,  04.  8  Taunt.  169, 
S.  C. 

(**)  2  Blac.  Rep.  1031.  (/)   1  Taunt.  618. 

(m)  2  Maulc  &  Sel.  36 ;  but  see  2  Salk.  669.     1  New  Rep.  C.  P.  310. 

(n)  2  Chit.  Rep.  418. 


Q-^2  OF  CHANGING  THE  VENUE. 

a  rule  to  change  the  venue  from  Middlesex  to  London  was  discharged,  on 
the  phiintiff 's  undertaking  to  give  material  evidence  in  Middlesex,  the  court 

held  that  the  undertaking  was  complied  with,  by  proving  a  rule 
r  *613  ]  of  court,  obtained  by  the  defendant  in  Middlesex,  *for  paying 

money  into  court ;  although  that  rule  was  obtained  after  the  rule 
for  changing  the  venue  was  discharged. (a)  So,  where  a  rule  to  change  the 
venue  from  A.  to  B.  had  been  discharged,  on  the  plaintiff's  undertaking  to 
give  material  evidence  in  C,  proof  of  the  delivery  of  the  goods  for  which 
the  action  was  brought,  to  a  carrier  in  C,  to  be  delivered  to  the  defendant 
in  B.,  was  holden,  in  the  Common  Pleas,  to  be  a  sufficient  compliance  with 
the  undertaking  :(6)  And,  in  that  court,  if  the  plaintiff  retain  the  venue, 
on  the  usual  undertaking  to  give  material  evidence  Avithin  the  county,  yet 
if  the  plea  and  issue  joined  be  such  as  to  render  that  evidence  irrelevant, 
the  performance  of  the  undertaking  is  it  seems  dispensed  with :  Thus,  if 
the  local  evidence  be  the  trading  of  a  bankrupt,  or  a  petitioning  creditor's 
debt  within  a  county,  yet,  if  the  defendant  do  not  give  notice  of  his  inten- 
tion to  dispute  the  commission,  under  6  Geo.  IV.  c.  16,  §  90,  so  that  the 
mere  production  of  the  commission  and  proceedings  under  it  proves  the 
trading  and  petitioning  creditor's  debt,  the  undertaking  it  seems  need  not 
be  further  complied  with.((?)  But  it  is  no  answer  to  an  application,  in  the 
latter  court,  to  change  the  venue  from  London  to  Essex,  on  the  usual  affi- 
davit, in  an  action  commenced  by  the  assignees  of  a  bankrupt,  that  the 
commission  was  issued,  and  bankruptcy  declared  in  Middlesex,  and  the 
assignees  chosen  in  London  :{d)  For  though  it  was  admitted,  that  if  the 
cause  of  action  arise  in  two  different  counties,  the  defendant  has  no  right 
to  change  the  venue,  yet  it  was  said,  that  the  cmise  of  action,  and  the 
right  to  bring  the  action,  are  two  different  things  :  A  cause  of  action  may 
arise  in  the  life-time  of  a  testator  ;  but  the  right  to  bring  the  action  by  the 
executors  must  accrue  after  his  death. (g) 

When  the  venue  is  laid  in  the  proper  county,  but  there  is  a  special 
ground  for  changing  it  into  another,  as  where,  in  an  action  on  a  specialty, 
the  witnesses  reside  in  a  distant  county, (/)  or  a  fair  and  impartial  trial 
cannot  be  had  in  that  where  the  venue  is  laid,(/)  the  defendant  should 
move  the  court,  on  an  affidavit  of  the  circumstances,  for  a  rule  to  show 
cause,  why  the  action  should  not  be  laid  in  the  county  where  the  witnesses 
reside,  or  in  the  adjoining  county  to  that  in  which  the  cause  of  action 
arose.  The  affidavit  for  this  purpose  should  state  the  nature  of  the  cause 
of  action,  and  of  the  defence  thereto  ',{g)  and  that  all  the  witnesses  reside 
in  a  distant  county,  or  the  grounds  upon  which  the  fair  and  impartial  trial 
cannot  be  had  in  that  where  the  venue  is  laid  :  And  the  court  will  not 
entertain  a  motion  to  change  the  venue,  in  an  action  on  a  specialty,  before 
issue  joined ;  for  till  then,  they  cannot  know  whether  the  defendant  in- 
tends to  set  up  any  defence  to  the  action,  or  what  is  the  question  in- 

(a)  2  Durnf.  &  Ecast,  275  ;  and  see  1  H.  Blac.  280.  6  Durnf.  &  East,  363.  6  Taunt.  566. 
2  Marsh.  494. 

(b)  2  Marsh.  494.     1  Taunt.  178,  S.  C,  but  differently  reported. 

(c)  3  Taunt.  86. 

(d)  1  New  Rep.  C.  P.  310.  Lapworth,  assignee  v.  Wilkes,  M.  46  Geo.  III.  K.  B.  S.  P. ;  and 
see  10  East,  32,  accord. 

(e)  Per  Heath,  J.,  1  New  Rep.  C.  P.  310 ;  and  see  2  Salk.  669.     3  Bing.  429. 
(/)  Ante,  605,  6. 

{g)  7  Moore,  82. 


OF  CHANGING  THE  VENUE.  613 

tended  *to  be  tried,  or  the  witnesses  it  will  be  necessary  to  ex-  [  *G14  ] 
amine  on  the  trial  of  the  cause. (a)[A] 

(a)  3  Barn.  4  Cres.  552.     5  Dowl.  k  Ryl.  441,  S.  C. 

[a]  modk  op  cha.n'Oino  thi  venue. 

Reasonable  notice  must  he  piven  to  the  adverse  party  of  a  motion  for  a  chanpe  of  venue. 
What  is  reasonahle  notiie,  will  depeutl  )ij)on  the  ciri-uniHtances  of  each  ]>iirli<'u!ar  case,  and 
must  necessarily  he  left  to  the  lej^al  riiscretion  of  tlie  judj^e  or  court  to  which  the  applica- 
tion is  made.  Brrryy.  Wilkinson,  1  Scam.  1G4.  And  this  notice  must  state  the  time  when, 
and  the  place  where,  the  aplication  will  l)e  made,  and  the  action  in  relation  to  wi»i<h  it  is 
made.  Rybum  v.  I'ri/er,  5  Knp.  417.  The  application  is  made  in  the  form  of  a  petition, 
with  accompanying  aflidavits ;  ami  where  the  application  for  a  change  of  venue  shows  a 
proper  cause,  it  is  the  duty  of  the  court  to  change  it  to  the  nearest  county  not  made  ohjeu- 
tiouahle  hy  the  petition  and  allidavit.^,  without  other  evidence.  C(/m  v.  Thr  State,  1  Greene, 
(Iowa,)  S."");}.  Powers  v.  Browder,  1,3  Mis.  154.  In  all  cases,  special  cause  should  ho  shown 
tor  changing  a  venue.  State  Bank  v.  Iledenherg,  1  Ilarr.  .352.  A  motion  to  change  the 
venue  will  not  always  he  granted  on  account  of  the  mere  jireponderance  in  the  number  of 
witnesses.  Wallacew  Bond,  A  Hill,  536.  Porter  \.  Mann,  ■i  Hill,  540.  But  where  a  njotion 
is  made  for  a  change  of  venue,  it  will  not  be  refused  on  an  nllidavit  stating  the  number  of 
witnesses  to  exceed  the  number  on  the  opposite  side,  provided  a  motion  to  change  is  based 
on  a  special  aflidavit.  Benedict  v.  Hihbard,  5  Hill,  501*.  Where,  however,  upon  a  showing 
made  by  a  defendant  for  a  change  of  venue,  it  ap])eiircd  that  the  showing  of  the  |)laintitf 
was  as  strong  as  that  of  the  defendant  against  the  county  to  which  the  change  was  desired ; 
and  the  court,  after  the  first  trial  term,  granted  such  change  of  venue,  the  appellate  court 
granted  process  to  restrain  the  last  court  from  exercising  jurisdiction,  and  returned  the  case 
to  its  original  court.  Innerarity  v.  Hitchcock,  3  Stew.  <fc  I'ort.  9.  It  is  no  answer  to  a  mo- 
tion to  change  the  venue,  that  thereh}-  the  plaintitt'  will  lose  a  trial  or  term,  where  the  de- 
fendant is  not  chargeable  with  laches.  Oarlock  v.  Dunkle,  22  Wend.  615.  F^tarr  v.  Fran- 
cis, 22  lb.  633.  Or  that  the  cause  is  at  issue  upon  demurrer  only.  Thurberv.  Brown,  2  Hill, 
382.  In  New  Jersey,  it  has  been  held,  the  venue  of  transitory  actions  may  be  changed  after 
plea  pleaded,  if  it  appears  that  the  defendant  would  otherwise  be  expired  to  unnecessary 
difficulty,  or  the  fair  administration  of  justice  would  be  interrupted.  Bell  v.  Morris  Canal 
and  Banking  Co.,  3  Green,  63.  In  transitory  actions,  a  venue  is  laid  to  show  where  the 
trial  is  to  take  place.  It  is  a  legal  fiction  devised  for  the  furtherance  of  justice,  and  cannot 
be  traversed.  McKenna  v.  Fisk,  1  How.  U.  S.  241,  S.  C.  17  Pet.  245.  Hut  trespass  quore 
clausum  being  a  local  action,  the  venue  must  be  laid  in  the  county  in  which  the  hois  in  quo 
is  situated  at  the  time  the  trespass  is  alleged  to  have  been  committed.  And  if  that  p.irtof  the 
county  is  set-off  to  a  different  county,  after  the  trespass  and  before  the  suit  is  instituted,  tlie 
venue  must  be  laid  in  the  old  county.  Champion  v.  Doughty.  3  Ilarr.  3.  Where  a  venue  is 
laid  in  the  margin,  or  in  the  commencement  of  the  declaration,  that  is  to  be  held  as  the 
venue  for  all  other  matters  where  no  venue  is  laid.  Benton  v.  Brown,  1  .Mis.  .393.  So.  too, 
a  venue  laid  in  the  body  of  the  declaration  is  suflicicnt,  although  none  is  found  in  the  mar- 
gin. Dwight  V.  Wing,  2  McLean,  580.  Rucker  v.  MrXrehj.  4  Hlackf  170.  It  has  been  held 
ill  Arkansas,  that  it  is  sufficient  to  state  the  venue  in  the  margin  of  the  declaration,  without 
stating  it  in  the  body.     Pollen  v.  Cha.te.  4  Pike,  210. 

Where  there  is  a  motion  for  change  of  venue,  it  is  a  safe  and  judicious  practice  to  require 
the  plea  to  be  entered  before  the  motion  is  awarded,  (iarduer  v.  The  People,  3  Scam.  83. 
Ami  after  the  defendant  pleads,  he  cannot  object  to  the  order  made.  Burnham  v.  Ilatjield, 
5  Hlackf.  21.  In  Mississippi,  a  change  of  venue  must  l)e  by  order  of  a  court  entered  of  re- 
cord, and  a  mere  statement  on  the  record,  by  the  clerk,  that  the  venue  has  been  changed, 
is  not  sufficient.  Saunders  v.  Morse,  3  How.  Miss.  lOl.  And  the  order,  it  seems,  must  be 
unconditional ;  thus  it  has  been  held,  tiiat  where  a  party  jjrayed  a  change  of  venue,  the 
court  granted  it,  on  condition  tiiat  the  party  should  pay  the  costs  attending  the  .same,  and 
cause  a  transcript  of  the  record,  and  the  papers  in  the  cause,  to  be  filed  in  the  court  of  the 
county  to  which  the  change  of  venue  was  ordered,  within  fifteen  days  before  the  first  day  of 
the  next  term ;  upon  his  neglecting  to  comply  with  the  terms,  the  opposite  |»arty  made  affi- 
davit of  the  fact,  and  the  cause  was  ordered  to  be  reinstated  upon  the  docket,  and  the  cause 
then  proceeded  to  trial  and  judgment:  Held,  that  the  court  had  no  authority  to  impose  on 
the  party  the  performance  of  those  acts,  as  conditions  precedent,  and  that  the  change  was 
consummated  by  the  order  of  the  court,  and  that  the  party  could  fully  disregard  the  condi- 
tions.    Bellingall  v.  Duncan,  2  Gil.  591. 

WHKN  THE  VENDE  WILL  BE  CHANOED. 

The  court  will  order  the  venue  changed,  even  when  laid  in  the  proper  county,  if  it  appears 
that  a  fair  trial  cannot  be  had  there.     Murray  v.  Nexp  Jersey  Railroad  Co.,  3  Zab.  63.     The 


Q-^^  OF  CONSOLIDATING  ACTIONS. 

If  two  actions  are  depending  at  one  time,  by  the  same  plaintiff  against 
the  same  defendant,  for  causes  which  may  be  joined,  and  particularly  if  the 

necessity  of  chanjjino;  the  venue,  in  any  case,  in  order  to  secure  an  impartial  trial,  is  not  to 
depend  on  the  suggestion,  or  even  the  belief,  of  the  defendant,  but  upon  facts  shown  to  the 
court,  or  admitted,  sufficient  to  satisfy  the  court  that  the  change  is  necessary  to  procure  an 
impartial  trial.  The  State  v.  Burris,  4  Harring.  582.  Murray  v.  Railroad,  supra.  And  it  is 
held,  iu  Ohio,  that  the  venue  should  not  be  changed  on  the  affidavit  of  the  party  alone,  but 
only  upon  clear  and  satisfactory  proof  that  fair  and  impartial  justice  probably  cannot  be 
obtained  in  the  county  where  the  suit  was  commenced.  Bank  of  Cleveland  v.  Ward,  11 
Ohio,  128.  So,  in  Virginia,  an  application  by  a  defendant  for  a  change  of  venue,  on  the 
ground  of  general  prejudices  existing  against  hira  in  the  town  where  the  cause  is  to  be 
tried,  should  be  supported  by  the  affidavits  of  disinterested  individuals.  Bosicell  v.  Flock- 
heart,  8  Leigh,  364.  Where  the  defendant  procured  a  change  of  venue,  on  the  ground  that 
the  judge  was  interested,  and  the  case,  on  the  plaintiff's  motion,  was  stricken  from  the 
docket  by  the  court  to  which  the  change  of  venue  had  been  ordered  ;  the  Supreme  Court, 
on  error  by  the  defendant,  remanded  the  case  to  the  original  court,  at  the  costs  of  the  plain- 
tiff in  error.  Rogers  v.  Watrous,  8  Texas,  62.  Where  a  party  filed  his  petition,  verified  by 
affidavit,  in  which  he  swore  that  he  entertained  serious  and  well  grounded  fears,  that  he 
would  not  receive  a  fair  and  impartial  trial  in  the  court,  on  account  of  the  prejudices  which 
he  believed  existed  in  the  mind  of  the  judge  against  him ;  it  was  held,  that  the  defendant 
had  brought  himself  within  the  provisions  of  the  statute,  and  that  he  was  entitled  to  a 
change  of  venue.  McGoon  v.  Little,  2  Gil.  42.  Venue  may  in  all  cases  be  changed  by 
consent  of  parties,  where  the  court  has  jurisdiction  of  the  subject-matter  of  the  suit.  Da- 
vidso7i  V.  Wheeler,  1  Morris,  238.  The  People  v.  Scales,  3  Scam.  354.  Thus  an  order  for  a 
change  of  venue,  reciting  that,  by  consent  of  parties,  it  is  agreed  that  the  cause  shall  go  to 
either  of  two  counties  at  the  election  of  the  plaintiff,  is  incomplete,  until  the  plaintiff  has 
made  his  election,  and  the  court  has  acted  upon  it,  by  ordering  the  papers  sent  to  the  clerk 
of  the  court  of  the  county  chosen.     Ex  parte  Remson,  23  Ala.  23. 

It  does  not  lie  in  the  mouth  of  the  party  who  has  obtained  a  change  of  venue,  to  object  to 
a  trial  in  the  court  to  which  he  has  caused  the  case  to  be  removed,  if  enough  appears  to 
give  that  court  jurisdiction.  McBain  v.  Enloe,  13  111.  YS.  And  all  objections  to  the  juris- 
diction arising  out  of  a  defective  certificate  of  proceedings,  in  cases  of  change  of  venue,  will 
be  considered  as  waived,  if  the  parties  proceed  to  trial  without  having  taken  exception. 
Hitt  V.  Allen,  13  111.  592.  The  statute  requisition  that  all  parties  shall  join  in  an  applica- 
tion for  change  of  venue,  extends  only  to  such  of  them  as  have  a  trial  pending ;  defendants 
in  default,  need  not  join  in  the  application  ;  the  whole  cause  will  be  removed  and  final  judg- 
ment will  be  rendered  for  or  against  all,  in  the  court  to  which  the  cause  is  taken.  Ih.  A 
change  of  venue  removes  the  whole  cause ;  and  the  court  to  which  the  same  is  transferred, 
after  a  default  by  one  of  the  parties,  and  a  plea  by  another,  may,  when  the  issue  is  found 
against  the  plea,  or  a  decision  is  made  against  it,  properly  render  a  judgment  against  both 
of  the  defendants.  Wight  v.  Meridith,  4  Scam.  360.  The  court  to  which  the  venue  is 
changed,  in  order  to  proceed  and  determine  the  cause,  must  have  before  it  the  pleadings  of 
the  parties,  and  all  other  papers  filed  during  the  progress  of  the  cause  in  the  court  from 
which  it  is  removed,  as  well  as  the  action  of  that  court  prior  to  the  change  of  the  venue. 
Wight  V.  Kirkpatrick,  4  Scam.  339.  An  order  for  changing  the  venue  of  a  cause,  and  di- 
recting the  clerk  to  transmit  a  transcript  of  the  record  to  the  Circuit  Court  of  the  county  to 
which  the  venue  is  changed,  impliedly  prohibits  him  from  sending  the  original  papers,  and 
is  void,  as  the  court  cannot  take  jurisdiction  unless  the  original  papers  are  filed  with  its 
clerk.  Walker  v.  Snowden,  1  Swan,  (Tenn.)  193.  And  where  the  venue  of  an  action  is  or- 
dered to  be  changed,  the  original  petition  and  order  should  not  be  transmitted  to  the  court 
to  which  the  change  is  made,  but  a  transcript  only.  Ri/hurn  v.  Pryor,  5  Eng.  417.  Where 
a  change  of  venue  takes  place,  the  clerk  should  certify  and  transmit  a  transcript  of  the  pro- 
ceedings previously  had  in  the  cause,  as  the  same  appear  from  the  record,  together  with  all 
the  original  papers  which  have  been  filed  in  and  belong  to  the  case.  White  v.  Kirkpatrick, 
4  Scam.  339.  If  the  papers  are  transmitted  without  the  requisite  certificate  of  their  being 
the  original  papers  in  the  cause,  the  court,  upon  motion,  will  grant  the  party  leave  to  with- 
draw them,  together  with  the  transcript.  Wight  v.  Kirkpatrick,  lb.  Where  the  papers 
in  a  cause  have  not  been  transmitted  by  the  clerk  to  the  court  to  which  the  venue  is 
taken,  it  is  the  duty  of  the  court,  at  the  instance  of  either  party,  to  grant  a  rule  on  the  clerk, 
to  certify  and  transmit  the  papers,  and  continue  the  cause  until  the  order  has  been  complied 
with.  lb.  If  a  motion  is  made  to  dismiss  a  cause,  wherein  a  venue  has  been  changed, 
because  the  original  papers  have  not  been  transmitted  with  the  record  of  the  proceedings, 
the  cause  will  be  dismissed,  unless  a  cross  motion  be  interposed,  for  a  rule  upon  the  clerk 
to  certify  and  transmit  the  papers ;  in  which  case  the  court  will  continue  the  cause  until 
the  order  is  complied  with.  lb.  Where  a  party  gives  notice  for  a  change  of  venue,  and 
files  his  petition,  sworn  to,  in  which  he  sets  forth  that  the  facts  therein  stated  came  to  his 


OP  CONSOLIDATING  ACTIONS.  61-t 

defendant  be  holden  to  bail  in  both,  the  courts  will  compel  the  plaintiff  to 
consolidate  the  actions ;  and,  on  account  of  the  vexation,  to  pay  the 
costs  of  the  application. (6)  But  the  court  refused  to  consolidate  two  ac- 
tions brought  on  two  bonds,  although  they  were  precisely  similar  to  each 
other. (f)  And  where  three  actions  were  successively  brought  by  the  same 
plaintiff  against  the  same  defendant,  upon  three  notes  of  hami,  which  be- 
came due  at  different  times,  the  court  of  Kinjr's  Bench  refuseil  to  consoli- 
date  them.(ci)  So,  wlierc  three  actions  were  brought  for  bribery,  at  an 
election  for  members  of  parliament,  and  in  each  action  there  were  counts 
for  forty  different  penalties,  for  distinct  acts  of  bribery,  that  court  would 
not  consolidate,  on  account  of  the  difficulty  of  doing  justice  between  the 
parties,  if  so  many  distinct  acts  of  bribery  were  to  be  discussed  in  one 
action. (e)     And  the  courts  will  not  consolidate  actions  against  different 

(A)  2  Durnf.  &  East,  639.  Anon.  E.  55  Geo.  III.  K.  B.  1  Chit.  Rep.  709,  (a) ;  but  see  2 
Str.  WIS,  xemb.  contra.     9  Price,  303. 

(c)  Rn,/al  Exchange  Company  v.  ,  H.  55  Geo.  III.  K.  B.     1  Chit.  Rep.  709,  (a). 

id)  Mussenden  ^  O' Uara^  M.  25  Geo.  III.  K.  B. ;  and  see  Forrest,  30  accord.  9  Price,  393. 
(«)   1  Smith  R.  423. 

knowledge  for  the  first  time,  on  thiit  day,  and  brinfrs  himself  within  the  provisions  of  the 
statute,  a  change  of  venue  mu.st  be  granted.  Barrows  v.  Tht  Peo/tle,  11  111.  121.  And  a 
party  who  has  obtained  a  change  of  venue,  taken  several  steps  in  the  cause,  consented  to  a 
continuance,  and  at  a  subsequent  term  submitted  the  cause  for  trial  without  objection,  can- 
not obtain  an  order  of  dismissal,  for  the  reason  that  the  original  papers  in  the  cause  had  not 
been  transmitted  by  the  clerk  from  the  county  where  the  suit  was  commenced ;  application 
for  a  rule  upon  the  clerk  of  the  court,  to  send  the  original  papers,  should  be  made  at  the 
first  term  after  obtaining  a  change  of  venue.  Granger  v.  Warrington,  3  Gil.  299.  Wight  v. 
Kirkpatrick,  4  Scam.  340.  Upon  a  change  of  venue,  the  witnesses,  unless  re-summoned, 
are  not  required  to  attend  the  court  of  the  county  to  which  the  venue  has  been  changed ; 
and  if  this  be  not  done,  their  failure  to  appear  at  the  final  trial  is  no  reason  why  the  costs 
of  their  attendance  at  the  court  from  which  the  cause  was  removed  should  not  be  allowed 
them.     Hodges  v.  Nance,  1  Swan.  (Tenn.)  57. 

WHEN    IT    WILL    BE    REFUSED. 

A  change  of  venue  will  be  refused,  unless  the  party  applying  for  it  has  complied  with  the 
statute.  Lewin  v.  Dille,  17  Mis.  (2  Bennett.)  64.  And  in  some  States  but  one  application 
can  be  made.  Thus,  in  Tennessee,  Act  of  1819,  c.  43,  ^  1,  gives  to  the  plaintiff  and  defen- 
dant each  a  right  to  change  the  venue  once  only.  Ga.^awag  v.  Stnith,  3  Humph.  l.")4.  And 
the  general  rule  is,  that  a  party  cannot  repeat  an  application  for  change  of  venue  without 
very  special  cause.     MilUi^on  v.  Holmes,  1  Smith,  55. 

By  statute,  in  Te.xas,  the  cases  of  executors,  administrators,  guardians,  and  trustees,  are 
made  exceptions  to  the  general  rule  in  reference  to  the  venue  of  actions.  They  must  be 
sued  in  the  county  where  the  estate  is  administered,  no  matter  what  may  be  the  subject- 
matter  in  controversy.  Neill  v.  Owen,  3  Texas,  145.  When  a  defendant,  immediately  after 
a,  decision  made  against  him,  on  his  objection  to  proceeding  with  the  trial,  moves  for  a 
change  of  venue,  on  the  ground  of  prejudice  in  the  judge,  without  giving  previous  notice  of 
such  application,  and  when  the  jury  is  about  to  be  sworn,  the  change  will  proj)erly  be  re- 
fused. I'errg  w  Roberts,  17  .Mis.  (2  Bennett,)  36.  Entertainment  of  a  prejudice,  and  the 
use  of  harsh  and  violent  terms,  derogatory  to  the  character  of  a  party  to  a  suit,  on  the  part 
of  the  judge  before  whom  the  suit  is  to  be  tried,  is  not  cause  for  change  of  venue  under 
Rev.  Stat,  of  Indiana,  1843,  [>.  950,  §  9.  MiUison  v.  Holmes,  1  Carter,  (Ind.)  45.  In  Indiana, 
prejudice  in  the  president  judge  is  not  one  of  the  statutory  causes  for  a  change  of  venue. 
Morris  v.  Graves,  2  Carter,  (Ind.)  354.  Where  a  petition  for  a  ihange  of  venue  alleged  for 
a  cause  that  the  judge  entertained  towards  the  plaintiff  a  violent  prejudice,  incapacitating 
him  to  do  the  plaintiff  justice,  and  that  the  judge  repeatedly,  as  the  plaintiff  had  been  in- 
formed and  believed,  spoke  of  the  plaintiff  in  harsh  and  violent  terms,  derogatory  to  the 
plaintiff's  character  for  fairness  and  honesty,  it  was  held,  that  the  petition  did  not  show 
suflicient  groimd  for  the  change  of  venue.  Ih.  MiUi.ion  v.  Holmes,  1  Smith,  55.  The 
application  of  a  person,  who  is  not  a  p:irty  to  the  suit,  for  a  change  of  venue,  need  not  be 
sustained.  Sherry  v.  Denn,  8  Blackf  542.  Vermilga  v.  Beat}/,  6  Barb.  Sup.  Ct.  429.  And 
none  but  the  party  to  the  record  in  the  suit  can  make  an  application  for  a  change  of  venue ; 
and  then  his  petition  must  be  verified  by  affidavit.     Crowtll  v.  Maughs,  2  Gil.  419. 


614  OF  CONSOLIDATING  ACTIONS. 

defendants ;  Tims,  where  it  was  raoved-tliat  four  several  declarations  in 
trespass,  against  four  diflFerent  defendants,  might  be  put  into  one,  on  an 
affidavit  that  the  trespass,  if  any,  was  committed  by  all  jointly ;  the  court 
of  King's  Bench  said,  they  never  went  so  far  as  the  case  of  different  de- 
fendants, but  only  where  the  declarations  are  between  the  same  parties : 
The  plaintiff  may  have  the  benefit  of  the  other's  evidence,  in  his  action 
against  cither ;  but  this  would  be  to  deprive  him  of  that  benefit.(/)  So, 
the  court  of  King's  Bench  will  not  consolidate  several  informations  in  na- 
ture of  quo  warranto,  against  several  persons,  for  distinct  offices  ;  for  there 
must  be  an  information  against  each,  to  enable  each  to  disclaim. (^^) 

In  actions  upon  a  policy  of  assurance,  against  several  underwriters,  the 
court  of  King's  Bench,  by  consent  of  the  plaintiff,  will  make  a  rule,  on  the 
application  of  the  defendants,  which  is  called  the  Consolidation  rule,(A) 
for  staying  the  proceedings  in  all  the  actions  except  one,  upon  the  de- 
fendant's undertaking  to  be  bound  by  the  verdict  in  that  action,  and  to 
pay  the  amount  of  their  several  subscriptions  and  costs,  in  case  a  verdict 
shall  be  given  therein  for  the  plaintiff.  This  nde,  though  attempted  before 
without  success, («')  was  introduced  by  Lord  Mansfield  into  general  use, 
in  the  court  of  King's  Bench,  to  avoid  the  expense  and  delay 
I]  *615  ]  arising  from  *the  trial  of  a  multiplicity  of  actions  upon  the  same 
question  ;(a)  and  if  the  plaintiff  will  not  give  his  consent,  the 
courts  have  the  power  of  granting  imparlances  in  all  the  actions  but  one, 
till  the  plaintiff  has  an  opportunity  of  proceeding  to  trial  in  that  action. (6) 
On  the  other  hand,  if  the  plaintiff  consent  to  the  rule,  the  courts  will  make 
the  defendants  submit  to  reasonable  terms ;  such  as  admitting  the  policy, 
producing  and  giving  copies  of  books  and  papers,  and  undertaking  not  to 
file  a  bill  in  equity,  or  bring  a  writ  of  error. (c)  In  the  Common  Pleas, 
there  is  no  rule  of  court,  but  a  judge's  order  is  obtained,  for  consolidating 
actions.  ((^) 

The  court  will  not  allow  a  consolidation  rule  to  be  opened,  on  the  ground 
that  fresh  evidence  has  been  discovered,  since  it  was  entered  into  :[e)  But 
it  has  been  set  aside,  for  the  absence  of  a  material  witness,  on  bringing 
money  into  court.(j^)  And  though  the  defendants  undertake  to  be  bound 
by^a'yerdict  in  one  action,  yet  this  must  be  understood  to  mean  such  a 
verdict  as  the  courts  think  ought  to  stand,  as  a  final  determination  of  the 
matter ;  and  therefore  where  the  defendant,  after  a  verdict  for  the  plain- 
tiff in  one  action,  obtained  a  new  trial,  the  court  of  King's  Bench  would 
not  make  a  rule,  previous  to  the  new  trial,  for  the  other  defendants  to  pay 
the  money  to  the  plaintiff,  pursuant  to  their  undertaking. (^)  So,  if  the 
court  think  it  reasonable  to  open  a  consolidation  rule,  and  try  a  second 
cause,  they  will  extend  to  the  second  trial,  all  such  terms  imposed  on  the 
successful  party  in  the  first,  as  are  requisite  for  attaining  the  justice  of  the 
case.(7«7i)     And  the  consolidation  rule  relates  solely  to  the  verdict :    There- 

(/)   1  Str.  420;  and  see  Cas.  temp.  Hardw.  137.     2  Wils.  227. 

(ffg)  2  Maule  &  Sel.  7.5.     2  Chit.  Rep.  366,  (6).  (h)  Append.  Chap.  XXIV.  §  8. 

(i)   2  Barnard.  K.  B.  103. 

(a)  Park's  Insur.  Introd. ;  and  see  Marshall  on  Insurance,  1  Ed.  p.  602,  &c.  8  Price,  575, 
6,  per  Wood,  Baron. 

(6)  Id.  Ibid.     Brou'n  v.  Ncwham  ^'  others,  E.  25  Geo.  III.  K.  B. 

(c)  Park's  Insur.  Introd.     Ante,  591.  (d)  Append.  Chap.  XXIV.  §  9. 

(e)  ruUm  V.  Parry,  H.  52  Geo.  III.  K.  B.  1  Chit.  Rep.  709,  10,  («) ;  and  see  6  Moore,  437. 

iff)  Ilolman  v. ,  H.  55  Geo.  III.  K.  B.     1  Chit.  Rep.  710,  in  notis. 

(ff)  3  Bur.  1477.  (hh)  5  Taunt.  165. 


OF  STRIKING  OUT  COUNTS,  ETC.  615 

fore,  A\}icre  several  causes  are  consolidated,  if  a  writ  of  error  be  issued  in 
the  cause  tried,  and  execution  taken  out  f<tr  want  of  i)ail  in  error  being 
duly  put  in,  and  writ.s  of  error  be  issued  in  the  other  caut^es,  and  bail  duly 
put  in  thereon,  execution  in  those  causes  is  there)»y  stayed. (tV)  iSo, 
where  the  defendant  having  entered  into  a  consolidation  rule,  the  plaintiff 
obtained  a  verdict  in  the  cause  tried,  which  waa  afterwards  turned  into  a 
special  verdict,  to  enable  ihe  defendant  to  reuiove  it  byw  rit  of  error  to 
the  King's  IJench,  which  was  done,  and  bail  put  in  acc(»rdiiigly  ;  the  court 
of  Coniinon  IMeas  stayed  execution  in  tiie  action  a^'ainst  tiie  defendant, 
till  the  determination  of  the  writ  of  error  was  known,  on  his  giving  secu- 
rity to  be  bound  by  the  judgnicit  of  the  King's  Bench. (/;)  But  where 
several  underwriters  to  a  policy  had  entered  into  a  consolidation  rule,  by 
which  they  undertook  to  abide  the  event  of  a  verdict,  and  the  cause  was 
referred  by  consent  before  trial,  and  the  arbitrator  awarded  the  aggregate 
sum  due  to  the  assured  from  the  underwriters  at  large ;  the  court  of  Com.- 
mon  Pleas  would  not  order  it  to  be  referred  back  to  tlic  arbitra- 
tor, to  *insert  the  amount  of  the  sum  due  and  payable  from  each  [  *G10  ] 
underwriter  individually,  without  the  consent  of  such  underwri- 
ters.(a)  And,  in  that  court,  if  a  verdict  be  given  in  favour  of  the  plaintiff,  to 
the  satisfaction  of  the  judge  who  tried  the  cause,  the  plaintiff  may  proceed  to 
tax  his  costs  on  the  verdict,  and  get  the  defendant's  attorney  to  attend 
the  prothonotaries,  who  will  tax  the  costs  in  the  other  actions :  and  if  the 
debt  and  costs  are  not  paid,  the  court  should  be  moved,  on  an  affidavit  of 
the  facts,  for  leave  to  enter  up  judgment,  and  take  out  execution,  kc.{b) 
In  actions  upon  a  policy  of  assurance,  against  several  underwriters,  where 
the  parties  had  not  entered  into  a  consolidation  rule,  the  attorney  for  the 
plaintiff  made  out  a  full  brief  in  one  cause,  but  only  a  short  statement  in 
the  rest:  and  the  master,  on  taxation,  having  allowed  for  full  briefs  in  all 
the  causes,  the  com-t  of  King's  Bench  made  a  rule  for  him  to  review  hia 
taxation.  (c)[a] 


As  the  courts,  for  the  sake  of  avoiding  expense,  will  consolidate  unne- 
cessary actions,  so  when  it  appears,  on  the  face  of  the  declaration,  that 
some  of  the  counts  are  superfluous,  they  will  order  them  to  be  expunged : 
and  if  there  be  any  vexation,  will  make  the  plaintiff  pay  the  costs  of  the 
application. (cf)  Thus,  where  several  counts  in  a  declaration  are  precisely 
the  same,  or,  which  more  frequently  happens,  there  is  only  a  formal  differ- 
ence between  them,  and  the  same  evidence  will  su))port  each,((')  as  if  the 
plaintiff  declare  specially  and  generally,  for  a  matter  that  may  be  given 
in  evidence  upon  a  general  count,  the  courts  will  expunge  the  superfluous 


n 


2  New  Rep.  C.  P.  430.  (*)  1  Moore,  79. 

8  Moore,  223.  (b)  Imp.  C.  P.  7  Ed.  711. 

(rj   Martintau  v.  Borneo  and  othrrx,  H.  23  (rco.  III.  K.  B. 
\d)   Per  Cur.  T.  5G  Geo.  III.  K.  U.     1  Chit.  Kep.  44y,  (a).     And  for  the  use  of  several 
count.s,  and  when  proper  to  insert  them,  see  Stej)!).  PI.  279,  Ac. 

(e)  Cas.  temp.  Hanhv.  129.  Barnes,  3G0.  2  Hur.  1188.  1  Blue.  Rep.  270.  1  New 
Rep.  C.  P.  289.     1  Chit.  PI.  4  Ed.  351.     l_Chit.  Ucp.  449,  (a). 

[\]  Con.sult  Brown  v.  Scott,  1  Dallas,  145.  Rnrnfty  v.  Wi/tiroop,  1  Yeate.s,  5.  Prior  v. 
Kdli/,  4  Yeates,  128.  Groff\.  Massen,  3  S.  A  R.  2()2.'  Toudnda  Bank  v.  JJuUard,  7  Watts 
A  Serg.  434.      Wolverton  v.  Lacey,  8  Month.  Law  Ucp.  672. 


gjg  OF  STRIKING  OUT  COUNTS,  ETC. 

counts.  So,  If  the  declaration  contain  special  counts  for  work  and  labour, 
besides  the  general  counts,  the  special  counts  may  be  struck  out  on  mo- 
tion, if  they  appear  to  be  unnecessary :(/)  and,  in  the  King's  Bench, 
where  the  plaintiff  was  an  attorney,  the  rule  was  made  absolute  with 
costs.  (/)  And,  if  there  be  any  doubt,  the  court  will  refer  it  to  the  mas- 
ter, to  determine  whether  superfluous  counts  are  introduced  vexatiously.(^) 
But  where  there  is  a  material  difference  between  the  counts,  the  courts 
"will  not  determine  upon  affidavits,  whether  they  are  well  founded  in  point 
of  fact ;  for  if  not,  the  plaintiff  will  be  sufficiently  punished  by  being  de- 
prived of  costs,  on  such  of  the  counts  as  are  found  for  the  defendant  :{h) 
Therefore,  where  the  declaration,  which  was  in  debt  for  penalties,  on  the 

statute  9  Ann.  c.  14,  consisted  of  480  counts,  for  money  won  at 
[  *617  ]  play  of  different  *persons,  at  different  times,  and  a  rule  nisi  was 

granted  for  limiting  the  declaration  to  ten  counts,  the  court  of 
King's  Bench,  on  showing  case,  discharged  the  rule  with  costs.(aa)  So, 
where  the  declaration  consisted  of  286  counts,  upon  as  many  banker's 
notes  for  a  guinea  each,  payable  to  bearer,  with  the  common  counts  for 
money  lent,  and  money  had  and  received,  the  court  refused  to  strike  out 
the  counts  upon  the  notes ;  as  it  might  have  put  the  plaintiff  to  unneces- 
sary difficulty  in  proof  at  the  trial,  or  made  it  necessary  for  him  to  have 
a  writ  of  inquiry  on  a  judgment  by  default.(5)  But  in  a  similar  case,  the 
court  made  a  rule  by  consent,  to  strike  out  all  the  counts  but  one,  the  de- 
fendant undertaking  to  permit  all  the  other  notes  to  be  given  in  evidence, 
either  before  the  master  or  a  jury,  under  the  count  upon  an  account 
stated. (c)  And  where  the  counts  do  not  appear  on  the  face  of  them  to 
be  superfluous,  the  court  of  King's  Bench  will  not  order  them  to  be  struck 
out,  merely  on  the  ground  that  the  causes  of  action  are  not  included  in 
the  particulars  of  the  plaintiff's  demand. (cZ)  In  an  action  on  a  bill  of  ex- 
change, the  court  of  Common  Pleas  refused  to  strike  out,  as  unnecessary, 
a  count  for  interest ;  though,  besides  counts  on  the  bill,  the  declaration 
contained  the  usual  money  counts. (e)  So,  where  there  were  counts  in  a 
declaration  for  work  and  labour  as  an  attorney,  and  for  work  and  labour 
generally,  that  court  refused  to  strike  out  the  former  counts  as  unneces- 
sary.(/) 

If  a  declaration  contain  slanderous  or  impertinent  matter,  the  court  will 
order  it  to  be  expunged  '.{gg)  And  where  a  declaration  unnecessarily  con- 
tains indecent  language,  the  court  it  seems  will  order  it  to  be  referred  for 
scandal  and  impertinence ;  and  direct  the  master  or  prothonotary  to  tax 
exemplary  costs. (AA)  So,  if  a  declaration  be  unnecessarily  long,  the  court 
will  expunge  the  superfluous  matter:  as  where  in  an  action  of  covenant 
upon  an  indenture,  the  plaintiff  recites  the  whole  of  it,  and  not  merely 
such  parts  as  are  necessary  ;(z)  or  where,  in  an  action  of  trover,  he  sets 

(/)  1  Chit.  Rep.  449,  (a).  2  Chit.  Rep.  299.  1  Dowl.  &  Ryl.  171,  S.  C.  7  Dowl.  & 
Ryl.  383. 

(g)   1  Dowl.  &  Ryl.  508. 

(A)  Turner  and  others^  assignees,  v.  Kingston,  H.  23  Geo.  III.  K.  B.  Hurd  v.  Cock,  M.  36 
Geo.  III.  K.  B.     Imp.  K.  B.  6  Ed.  754. 

(aa)    Cowan  v.  Berry,  E.  38  Geo.  III.  K.  B. 

(b)  Lane  v.  Smith,  M.  46  Geo.  III.  K.  B.     3  Smith  R.  113,  S.  C. 

(c)  3  Barn.  &  Aid.  272.     1  Chit.  Rep.  709,  S.  C. 

{d)  1  Chit.  Rep.  448,  9,  50.  (e)  1  Bing.  281.     8  Moore,  243,  S.  0. 

\ff)  9  Moore,  358.     2  Bing.  184,  S.  C. ;  and  see  9  Moore,  785.     2  Bing.  412,  S.  0. 
{gg)  1  Chit.  Rep.  676,  and  n.  (a).  (AA)  2  Wils.  20. 

(i)  Cowp.  665,  727 ;  and  see  2  H.  Blac.  123.     1  Campb.  196,  in  notia. 


OF  BRINGING  MONEY  INTO  COURT.  617 

out  a  long  inventory  of  goods,  with  frequent  and  unnecessary  repetitions 
and  descriptions.  So,  in  an  action  against  forty-six  defendants,  the  court 
of  Common  Pleas  ordered  the  word  '■'■(UfviKlanta"  to  he  substituted  for  the 
names  of  the  defendants,  in  all  the  places  where  they  occurred,  except  the 
first. (^)  In  these  cases,  when  the  ohjoction  is  clear,  the  courts  will  order 
the  superfluous  counts  or  mutter  to  he  expunged  on  motion,  in  the  first  in- 
stance ;  but  otherwise  they  will  refer  it  to  tiie  master,{/)  or  prothon(ttary,(7/j) 
and  decide  upon  his  report.  In  general,  however,  the  court  of  King's 
Bench  will  not  refer  a  declaration  to  the  master,  to  strike  out 
superfluous  *counts ;  but  will,  on  motion,  order  them  to  he  struck  [  *G18  ] 
out,  if  they  appear  vexatious. (a)  An<l,  in  the  Common  Pleas, 
the  motion  may  be  made,  after  the  defendant  has  taken  the  declaration 
out  of  the  office,  and  pleaded  to  the  action. (/y//)  Jiut  an  application  to  strike 
out  unnecessary  counts  should  regularly  be  made  before  they  are  engrossed 
on  record. (c'tr) 


♦CHAPTER    XXV.  [  *G19  ] 

Of  BRINGING  Money  itito  Court. 

The  practice  of  bringing  money  into  court  is  said  to  have  been  first  in- 
troduced in  the  reign  of  Car.  II.  at  the  time  when  Kelyng  was  chief  jus- 
tice, to  avoid  the  hazard  and  difficulty  of  pleading  a  tender. (aa)  And  it  is 
allowed  in  cases  where  an  action  is  brought  upon  contract,  for  the  recovery 
of  a  debt, (6)  which  is  either  certain,  or  capable  of  being  ascertained  by 
mere  computation,  without  leaving  any  sort  of  discretion  to  be  exercised 
by  the  jury.[c)  In  these  cases,  when  the  dispute  is  not  whether  anything, 
but  how  much  is  due  to  the  plaintiff,  the  defendant  may  have  leave  to 
bring  into  court  any  sum  of  money  he  thinks  fit ;  and  the  courts  will  make 
a  rule,  that  unless  the  plaintiff  accept  of  it,  with  costs,  in  discharge  of  the 
action,  it  shall  be  struck  out  of  the  declaration,  and  paid  out  of  court,  to 
the  plaintiff  or  his  attorney , [a]  and  the  plaintiff,  upon  the  trial,  shall  not 
be  permitted  to  give  evidence  for  the  sum  brought  in  :{d)  which  rule  should 

(k)   1  New  Rep.  C.  P.  289.  (/)  Cowp.  727.     1  Dowl.  &  Ryl.  508. 

\m)  2  Blac.  Rep.  906.     1  Chit.  Rep.  450.  {a).         [a)   1  Chit.  Rep.  450. 
\bb)  Law  V.  Williamson,  H.  31  Geo.  HI.  C.  P.     Imp.  C.  P.  7  Ed.  179. 
\cc)  2  Bing.  453.     10  Moore,  152,  S.  C. 

\aa)  1  Ld.  Raym.  255.  2  Salk.  597.    2  Str.  787.    Cas.  temp.  Hardw.  207.    1  Wms.  Saand. 
Sd.  33,  a,  (2) ;  but  see  R.  H.  5  Jac.  I.  K.  B. 
lb)  Com.  Dig.  tit.  Pleader,  C.  10.  (f)  2  Bur.  1120. 

\d)  Say.  Rep.  196,  7.  2  Bur.  1121.  3  Bur.  1773.  Imp.  K.  B.  10  Ed.  251.  R.  M.  6  Geo. 
III.  in  Scac.  Man.  Ex.  Append.  217,  18  ;  and  see  Append.  Chap.  XXV.  J  1,  2,  3. 

[a]  After  a  defendant  has  brought  into  court,  on  the  common  rule,  as  much  money  as  he 
thinks  proper,  and  the  plaintiff  has  refused  to  receive  it  in  satisfaction,  the  defendant  is  en- 
titled to  have  the  same  considered  as  a  payment  made  on  the  day  on  which  it  was  bronplit 
in ;  he  is  answerable  for  further  damages  only  ;  for  he  then  stands  on  tlie  same  ground  as 
if,  on  tendering  money  before  the  action,  the  jjlaintiff  had  refused  to  receive  it,  but  had 
commenced  his  action,  in  which  the  tender  was  pleaded.  Boyden  v.  Moore,  5  Mass.  365. 
And  if  the  defendant  pays  money  into  court,  the  plaintiff  goes  on  to  trial,  and  a  verdict  is 
rendered  against  him,  he  neither  pays  nor  receives  coats  for  the  time  previous  to  the  pay- 
ment into  court.      Williamt  v.  Ingenoll^  12  Pick.  345. 


g29  OF  BRINGING  MONEY  INTO  COURT. 

be  accompanied  with  the  general  issue,  or  other  plea,  to  the  residue  of  the 
demand. (<■) 

Thus,  in  assumpsit,{f)  or  covenant ^{g)  for  the  payment  of  money,  the 
defendant  may  bring  money  into  court ;  and  in  covenant  to  find  diet  and 
lodging,  or  pay  ten  pounds,  the  court  allowed  him  to  bring  in  the  ten 
pounds. (A)  In  debt  for  rent,  the  defendant  may  bring  money  into  court 
in  the  King's  Bench, (^')  as  well  as  in  the  Common  Pleas, (A;)  and  Exche- 
quer \{l)  although,  in  the  former  court,  it  was  refused,  in  the  time  of  Lord 
Jlardwicke  ;{m)  and  in  a  case  previous  to  that  time,(n)  the  court  said  they 
never  did  it  in  debt.  But  there  is  a  distinction  between  those  actions  of 
debt,  wherein  the  plaintiif  cannot  recover  less  than  the  sum  demanded,  as 
on  a  record,  specialty,  or  statute  giving  a  sum  certain  by  way  of  pen- 
alty ;(o)  and  those  actions  wherein  the  plaintiff  may  recover  less, 
[  *620  ]  as  in  debt  for  rent,(|))  *or  on  simple  contract  :{aa)  In  the  for- 
mer, the  defendant  cannot  bring  money  into  court  ;{bb)  though 
he  may  move  to  stay  the  proceedings,  on  payment  of  the  whole  penalty 
and  costs  :{cc)  but  in  the  latter,  the  defendant  has  been  allowed  to  bring 
money  into  court  •,{dd)  because  the  plaintiff  does  not  recover  according  to 
his  demand,  but  according  to  the  verdict  of  the  jury.  When  an  action, 
however,  is  brought  for  several  penalties  on  the  game  laws,  the  defendant, 
we  have  seen,{ee)  may  have  leave  to  pay  one  penalty  into  court,  leaving 
the  plaintiff  at  liberty  to  proceed  for  the  rest.  And  the  defendant,  by  act 
of  parliament,  may  bring  money  into  court  in  debt,  covenant,  or  other 
action  on  a  policy  of  assurance, (_^)  or  in  an  action  for  non-residence. (^^) 
In  an  action  for  general  damages,  upon  a  contract, (AA)  or  for  a  tort,(w) 
or  trespass, (M)  as  a  tender  cannot  be  pleaded,  so  the  defendant  is  not  allow- 
ed to  bring  money  into  court :  And  it  cannot  be  brought  into  court,  in  an 
action  for  dilapidations. (?Z)  But  in  an  action  of  assumpsit  against  a  car- 
rier, for  not  delivering  goods,  the  defendant  having  advertised  that  he 
would  not  be  answerable  for  any  goods  beyond  the  value  of  twenty  pounds, 
unless  they  were  entered  and  paid  for  accordingly,  the  court  of  King's 
Bench  allowed  him  to  bring  the  twenty  pounds  into  court  '.{turn)  So,  money 
may  be  brought  into  court,  in  an  action  on  the  case  for  navigation  ca\h.{nn) 
And  where,  in  an  action  for  general  damages,  the  bringing  of  money  into 
court  is  irregular,  if  the  plaintiff  take  it  out,  he  thereby  waives  the  irregu- 

(e)  Barnes,  339,  350.  (/)   1  Vent.  356.     2  Salk.  596,  7. 

(g)  2  Salk.  596.     1  Wils.  15.     2  Bur.  1120.     Barnes,  284.     2  Blac.  Rep.  837. 

(h)  8  Mod.  305.  (t)   2  Salk.  596,  7. 

(k)  Barnes,  280,  282.     Pr.  Reg.  257.  (l)  Bunb.  124. 

(m)  Cas.  temp.  Hardw.  173.  («)   2  Str.  890. 

(o)  Cro.  Jac.  128,  498,  629.     3  Mod.  41.  (p)  5  Mod.  212. 

(aa)   1  H.  Blac.  249. 

(bb)  2  Str.  890.     1  Barnard.  K.  B.  420,  S.  C.     Barnes,  285. 

(tr)  Ante,  541. 

(dd)   1  Vent.  356.     2  Salk.  596,  7.     2  Ken.  292.  (ee)  Ante,  541. 

(/)  Stat.  19  Geo.  II.  c.  37,  §  7.     3  Bur.  1773.     2  Taunt.  317. 

(ffff)  57  Geo.  III.  c.  99,  §  43. 

(hh)   1  Vent.  356.    2  Blac.  Rep.  837.    2  Bos.  &  Pul.  234.     3  Bos.  &  Pul.  14. 

(lY)  2  Str.  787,  906.     2  Barnard.  K.  B.  4,  S.  C.     7  Durnf.  &  East,  335. 

(kk)  2  Wils.  115.  (11)  8  Durnf.  &  East,  47. 

(mm)  Ihittonv.  Bolton,  E.  22  Geo.  III.  K.  B.  1  H.  Blac.  299,  in  notis  ;  Beardmore  v.  Boul- 
ton,  H.  30  Geo.  III.  Excheq. ;  but  see  2  Bos.  &  Pul.  234.  And  as  to  the  liability  of  carriers, 
in  consequence  of  such  advertisements,  see  1  H.  Blac.  298.  2  East,  128.  4  Esp.  Rep.  177. 
4  East,  371.  5  East,  507.  5  Barn.  &  Cres.  322.  10  Moore,  247  ;  and  for  the  mode  of  de- 
daring  thereon,  see  2  East,  128.     4  Esp.  Rep.  177.     6  East,  564. 

{nn)  7  Durnf.  &  East,  36. 


OF  BRINGING  MONEY  INTO  COURT.  620 

larity,  and  cannot  afterwards  have  a  verdict,  unless  lie  recover  more  than 
the  sum  brought  in.(o)  In  an  action  for  frei^rht  by  a  foreigner,  there 
being  a  cross  action  against  him  for  unlicjuidated  damages,  the  court  of 
C(thimon  Pleas  refused  to  permit  the  freight  to  be  paid  into  court,  as  a 
fun<l  lial)le  to  payment  of  the  damages  when  ascertained. (y>)  But  where 
a  separate  commission  had  been  sued  out  against  A.,  and  a  joint  cdinmis- 
sion  against  him  and  J5.,  and  the  assignees  under  the  first  commission  had 
recovered  a  verdict  in  truvcr  against  0.,  the  court  of  King's  Bench  allow- 
ed the  amount  of  the  verdict  to  be  brought  into  court,  to  abide  the  event 
of  a  petition  to  the  Chancellor,  to  supersede  the  first  commission. (<y) 

In  an  action  by  an  executor  or  administrator,  the  plaintilTiiot  being  liable 
to  costs,  the  defendant  was  not  formerly  allowed  to  bring  money 
into  *court  ;(<?)  but  now  it  is  otherwise  :(/')  and  the  effect  of  the  [  *G21  ] 
rule  will  be,  not  to  make  the  plaintiff  pay,  but  only  to  lose  his 
8ubse(iuent  costs.  And,  in  actions  against  justices  of  the  peace,(c)  officers 
of  the  excise,(c^  or  customs,(t')  commissioners  of  bankrupt,(^)  or  officers 
of  the  army,  navy  or  marines, (/y//)  for  anything  done  in  the  execution  of 
their  offices,  "  in  case  the  defendants  shall  have  neglected  to  tender  any,  or 
shall  have  tendered  insufficient  amends,  before  the  action  brought,  they  niay, 
by  leave  of  the  court,  at  anytime  before  issue  joined,  pay  into  court  such 
sum  of  money  as  they  shall  sec  fit ;  whereupon  such  proceedings,  orders  and 
judgment  shall  be  had,  made  and  given,  in  and  by  such  court,  as  in  other 
actions  where  the  defendant  is  allowed  to  pay  money  into  court. "(/<//) 

There  is  said  to  be  no  precedent,  where  there  are  several  defendants,  for 
one  to  pay  money  into  court. (/)  AVhere  there  are  several  counts  or  breaches 
in  the  declaration,  and  as  to  some  of  them  the  defendant  may  bring  money 
into  court,  but  not  as  to  the  others,  he  may  obtain  a  rule  for  bringing  it  in 
specially,  upon  some  of  the  counts  or  breaches  only.  Thus,  where  an  action 
of  covenant{h)  was  brought  upon  a  lease,  for  non-payment  of  rent,  and  not 
repairing,  &c.,  the  court  of  King's  Bench  made  a  rule,  that  ujion  payment  of 
"what  should  appear  to  be  due  for  rent,  the  proceedings  as  to  that  should  be 
stayed  ;  and  as  to  the  other  breaches,  that  the  plaintiff  might  proceed  as  he 
should  think  fit.  So,  in  covenant  upon  a  charter-party,(/)  the  defendant 
■was  allowed  to  bring  money  into  court,  upon  two  of  the  breaches  only  ;  viz. 
for  freight  and  demurrage.  But  in  debt  for  the  penalty  of  a  charter-party, 
the  court  of  Common  Pleas  discharged  the  rule  for  bringing  money  into 
court  :{pi)  and  in  another  case,  they  refused  to  permit  the  defendant  to  pay 


i; 


(o)   1  Purnf.  &  East,  710,  and  sec  1  Campb.  559,  n.  (;>)  3  Taunt.  525. 

\q)   1  Barn.  &  Cres.  257.     2  Dowl.  &  Ryl.  409,  S.  C. 

[a)  2  Salk.  596.  (i)  2  Str.  79G. 

(c)  Stat.  24  Geo.  II.  c.  44,  §  4.  And  note,  this  seem.?  to  have  been  the  first  statute,  which 
allows  money  to  be  brought  into  court,  in  an  action  for  general  damages. 

{d)  Stat.  23  Geo.  III.  c.  70,  §  33. 

(<•)  Stat.  24  Geo.  III.  sess.  2,  c.  47,  §  35,  (repealed  by  C  Geo.  IV.  c.  105.)  28  Geo.  III.  c. 
37,  §  28.     G  Geo.  IV.  c.  108,  §  96. 

\ff)  Stat.  6  Geo.  IV.  c.  16,  §  43.  (gg)  Stat.  6  Goo.  IV.  c.  108,  g  96. 

(hh)  See  also  the  statutes  13  Geo.  III.  c.  78.  §  79.  13  Geo.  III.  c.  84.  ?  81,  *  3  Geo.  IV. 
c.  126,  ^  144,  as  to  bringing  money  into  court,  by  persons  acting  under  tiie  general  hightraj/ 
and  turnpike  acts.  And  as  to  bringing  it  in,  by  jiersons  acting  in  pursuance  of  the  laws 
relative  to  larceny,  &c.,  or  malicious  injuries  to  property,  see  the  statutes  7  &  8  Geo.  IV.  c. 
29,  I  75,  and  c.  30,  §  41. 

(i)  2  Blac.  Rep.  1030. 

{k)  2  Salk.  669.  1  Wils.  75.  Barnes,  284,  but  see  1  Vent.  356,  contra;  and  see  Pr.  Reg 
C.  P.  256.    2  Blac.  Rep.  837. 

(/)  2  Bur.  1120.  (m)  Barnes,  285. 

Vol.  I.— 39 


g21  OF  BRINGING  MONEY  INTO  COURT. 

money  into  court  on  all  the  counts  in  the  declaration  except  the  last,  and  to 
demur  to  that  count.(w)  If  a  defendant  bring  money  into  court  upon  some 
of  the  counts,  and  the  plaintiff  take  it  out,  the  latter  is  only  entitled  to  the 
costs  of  those  counts,  (o) 

The  motion  for  leave  to  bring  money  into  court  is  a  motion  of  course,  and 
should  regularly  be  made  before  plea  pleaded  ;{p)  but  it  is  fre- 
[  *C22  ]  quently  *made,(a)  and  in  some  cases  expressly  authorised,(J) 
after  plea,  on  obtaining  a  judge's  order  for  that  purpose  :  and  if 
there  has  been  no  delay,  (c)  the  courts  will  give  the  defendant  leave  to  with- 
draw the  general  issue,  in  order  to  bring  money  into  court,  and  replead  it, 
on  payment  of  costs  :[a]  And  he  has  even  been  allowed  to  bring  it  in,  after  the 
granting  of  a  new  trial. (tZ)  In  the  King's  Bench,  the  motion  paper  being 
signed  by  counsel,  the  money  should  be  paid  to  the  signer  of  the  writs,  who 
acts  in  this  instance  as  deputy  to  the  master  ;(e)  and  will  give  a  receipt  for 
the  money,  on  being  paid  20s.  for  every  1001.  and  so  in  proportion  for 
every  greater  or  lesser  sum,  exceeding  101.  and  2s.  for  every  sum  under  10?. 
beside  2s.  4:d.  for  the  receipt. (/)  The  rule  for  bringing  in  the  money  is 
drawn  up,  in  this  coui't,  by  the  clerk  of  the  rules  in  term  time,  or  within  a 
week  after,  on  the  motion  paper  and  receipt  being  left  with  him  as  instruc- 
tions ;  but  after  a  week  from  the  end  of  the  term,  there  must  be  a  judge's 
order  for  drawing  up  the  rule,  which  is  granted  of  course,  without  a  sum- 
mons. In  the  Common  Pleas,  if  the  sum  be  under  ^re  pounds  it  may  be 
paid  in  on  a  side-bar  or  treasury  rule,  which  is  granted  of  course  by  the 
secondaries  ;  but  if  it  amount  to  that  sum  or  upwards,  a  Serjeant's  hand  is 
necessary  for  obtaining  the  rule  :  and  after  a  week  from  the  end  of  the  term, 
there  must  also  be  a  judge's  order  for  drawing  it  up.  The  rule  in  this  court 
being  taken  to  the  prothonotaries'  oflEice,  the  clerk  there  will  receive  the 
money,  and  write  a  receipt  in  the  margin,  on  being  paid  Id.  in  the  pound, 
and  Is.  4:d.  for  the  receipt.  On  a  plea  of  tender,  with  a  profert  in  curid, 
the  sum  tendered  must  be  paid  to  the  signer  of  the  writs  in  the  King's 
Bench,  or  prothonotaries  in  the  Common  Pleas,  who  will  give  a  receipt  for 
it  in  the  margin  of  the  plea  ;  and  if  not  paid,  the  plaintiff  may  consider  the 
plea  as  a  nullity,  and  sign  judgment. (^)    K  the  defendant  bring  money  into 

(n)  Pr.  Reg.  256.  (o)  4  Durnf.  &  East,  579.    2  Taunt.  266, 

(p)   1  Ld.  Raym.  398.    1  Wils.  157.    Barnes,  279.  (a)   1  Durnf.  &  East,  711. 

(b)  Stat.  24  Geo.  II.  c.  44,  |  4,  and  see  7  Taunt.  33.  2  Marsh.  356,  S.  C,  where,  in  an 
action  against  a  magistrate,  the  defendant,  after  issue  joined,  was  allowed  to  withdraw  the 
general  issue,  pay  money  into  court,  and  plead  de  novo.  3  Barn.  &  Cres.  159.  4  Dowl.  & 
Ryl.  776,  S.  C.  accord. 

(c)  2  Str.  1271.   Barnes,  289,  362.  (d)  Per  Cur.  M.  29  Geo.  III.  K.  B. 
(e)  1  Cromp.  3  Ed.  142.                                                       (/)  R.  H.  5  Jac.  1  K.  B. 

(g)  1  Str.  638.  Barnes,  252.  Ante,  565. 

[a]  Money  paid  into  court  is  payment  joro  ianto.  The  plantiflf  can  take  it  out,  but  the 
defendant  cannot ;  where  a  defendant  dies  after  the  payment,  the  revival  of  the  action  against 
his  executor,  or  even  the  commencement  of  a  new  suit,  will  not  change  the  effect  of  the  pay- 
ment. Murray  v.  Bethune,  1  Wend.  191.  If  the  defendant  pays  money  into  court,  either 
upon  the  whole  or  any  single  count  in  the  declaration,  he  must  pay  costs  up  to  the  time 
when  the  money  is  paid  in,  even  although  the  plaintiff  should  proceed  and  recover  no  more 
than  the  amount  paid  in.  State  Bank  v.  Halcomb,  2  Halst.  193.  If,  in  an  action  on  a  policy 
of  insurance,  the  defendant  pays  the  amount  of  the  premium  into  court,  which  the  plaintiflf's 
attorney  takes  out,  after  informing  the  defendant  of  the  intention  to  go  for  a  total  loss,  he 
will  not  be  concluded  from  proceeding  for  a  total  loss.  Sleght  v.  Ehinelander,  1  Johns,  192. 
In  an  action,  on  a  policy  of  insurance,  the  defendant  may,  after  plea  pleaded,  bring  what 
sum  he  pleases  into  court,  with  costs  to  the  time,  but  not  specifically  as  the  premium  on  the 
policy.     Dunlap  v.  Commercial  Ins.  Co.,  lb.  149. 


OF  BRINGING  MONEY  INTO  COURT.  622 

court  on  a  plea  of  tender,  the  plaintiff  may  take  it  out,  tliough  he  reply  that 
the  teiuler  was  not  made  before  aetion  hroii^dit  :(/<)  Or  he  may  reply  a  sub- 
sequent demaml  and  refut^al  ;  and  on  a  verdict  f»jr  the  plaintiff,  on  issue  taken 
thereon,  Lord  Mannjicld  said  :  ''  The  money  havin;,'boen  taken  out  of  court, 
the  plaintiff  shall  recover  only  nominal  damages,  but  otherwise  the  verdict 
would  have  been  for  the  sum  tendered. 'Y?) 

The  rule  to  bring  money  into  court  is  commonly  drawn  up  with  costSj 
to  be  taxed  by  the  master  in  the  King's  Bench,  or  one  (jf  the  ])rothono- 
taries  in  the  (Jonnnon  Pleas  :  And,  in  the  King's  ]>ench,  the  court  will  not 
in  general  permit  the  defendant  to  l)ring  into  court  the  debt  and  costs  up  to 
a  certain  day  after  the  action  brought,  (thereby  excluding  the  costs 
*of  the  declaration  delivered,)  upon  the  ground  of  an  offer  to  pay  [  *623  ] 
the  debt  and  costs  up  to  that  })eriod,  without  having  made  a  tender 
before  action,  or  obtaining  the  common  rulefor  staging  j)roceedings  on  pay- 
ment of  debt  and  costs,  up  to  the  time  of  the  application. ((/)  liut  where  the 
plaintiffs  conduct  appeared  to  have  been  oppressive,  the  court  of  King's 
Bench,  on  motion,  discharged  so  much  of  the  rule,  for  bringing  money  into 
court,  as  related  to  the  payment  of  costs. (i)  So,  where  an  action  was 
brought  for  two  separate  sums  of  money,  one  of  which  the  defendant  offered 
to  pay,  with  all  costs  to  that  time,  and,  the  plaintiff's  attorney  having  re- 
fused to  stay  proceedings  on  those  terms,  the  defendant  })ai<l  that  sum  into 
court ;  but  the  plaintiff  afterwards,  finding  that  he  could  not  support  the 
action  for  the  other  part  of  his  demand,  took  the  money  out  of  court,  and 
discontinued  the  action  ;  the  court  allowed  the  defendant  his  costs,  from  the 
date  of  his  offer  to  pay  the  sum  paid  into  court,  and  directed  that  the  same 
should  be  set  off  against  the  plaintiff's  costs  previously  incurred. (f) 

So,  in  tlie  Common  Pleas,  according  to  several  recent  decisions,  where 
the  defendant,  after  action  brought,  and  before  declaration,  offers  to  pay  the 
debt  and  costs,  and  the  plaintiff  refuses  to  receive  it,  the  court  will  permit 
the  defendant  to  pay  the  debt  into  court,  with  the  costs  of  the  action  up  to 
the  time  of  his  offer  only  ;  and  if  the  plaintiff  take  the  money  out  of  court, 
he  will  be  compelled  to  pay  the  costs  of  the  application,  and  all  costs  in  the 
action  subsequent  to  the  offer  :{d)  And  in  like  manner,  upon  setting  aside  a 
writ  of  in(|uiry,  the  court  of  Common  Pleas  permitted  the  defendant  to  pay 
money  to  the  plaintiff,  under  a  rule  of  court,  with  the  costs  of  the  action  up 
to  that  time,  and  ordered  that  the  plaintiff's  further  proceedings  should  be 
at  the  peril  of  paying  the  subsequent  costs.((^)  So,  in  the  Exchequer,  the 
court,  in  a  proper  case,  would  it  seems  adopt  a  similar  mode  of  proceeding.(/) 
But  where,  in  an  action  for  work  and  labour,  the  defendants,  having  offered 
by  letter  to  pay  a  certain  sum  for  the  debt  with  the  costs  up  to  that  time, 
which  was  refused  by  the  plaintiff,  obtained  a  rule  to  show  cause  why  the 
sum  offered,  and  the  costs  should  not  be  paid  into  court,  and  further  proceced- 
ings  stayed,  and  why  the  plaintiff  should  not  pay  the  costs  incurred  since 
the  offer,  and  why,  if  the  plaintiff  refused  to  accept  it,  that  sum  should  not 
be  paid  into  court,  and  struck  out  of  the  declaration  ;  the  court  of  Common 

(h)  1  Bos.  &  Pul.  3.32. 

(t)  V.  Ashbij,  Mid.  Sit.  after  T.  22  Geo.  III.  K.  B. 

(a)   13  East,  551.  (fj)   1  Bur.  578. 

(c)  2  Barn.  &  Aid.  776.    1  Chit.  Rep.  471,  S.  r. 

(d)  2  Taunt.  203,  283.  4  Taunt.  255.  Holt.  Ni.  Bri.  7  n.;  but  sec  Cas.  Pr.  C.  P.  120.  Pr. 
Reg.  258,  y.  C.  semb.  contra. 

(e)  1  Taunt.  491,  but  sec  Cas.  Pr.  C.  P.  85.    Barnes,  281,  285. 
(/)   11  Price,  545,  but  see  id.  533. 


g23  OF  BRINGING  MONEY  INTO  COURT. 

Pleas  (liscliargccl  the  rule,  it  appearing  that  there  was  nothing  oppressive  in 
the  phiintifF's  conduct  :{g)  And  in  general,  where  money  is  paid  into  court 
upon  tlic  common  rule,  the  latter  court  will  not  discharge  that  part  of  it 
which  directs  the  payment  of  costs,  unless  the  defendant  have  been  prevented 
from  making  a  legal  tender,  by  the  fraud  or  vexatious  conduct  of 
[  *62-4  ]  the  plaintiff:  *  Therefore,  they  refused  the  application,  where  the 
defendant  had  merely  pulled  out  his  pocket  book,  for  the  purpose 
of  making  a  tender,  six  weeks  before  action  brought,  and  was  prevented  by 
the  plaintiff's  walking  away ;  the  defendant  never  having  repeated  the 
offer,  (a)  A  copy  of  the  rule  is  usually  annexed  to  the  plea,  or  otherwise 
served  on  the  plaintiff's  attorney  :  And  bringing  money  into  court  can  only 
be  proved,  by  the  rule  for  bringing  it  m.(h) 

Bringing  money  into  court  is  in  general  considered  as  an  acknowledgment 
of  the  right  of  action,  to  the  amount  of  the  sum  brought  in  ;(c)[a]  which  the 
plaintiff  therefore,  on  producing  an  office  copy  of  the  rule,  is  entitled  to  re- 
ceive at  all  events  whether  he  proceed  in  the  action  or  not,  and  even  though 
he  be  nonsuited,  or  have  a  verdict  against  him:((Z)  And  where  goods  have 
been  sold  to  the  defendant  by  sample,  at  a  stipulated  price,  he  cannot, 
after  payment  of  money  into  court,  in  an  action  of  indebitatus  assumpsit, 
insist  upon  any  defect  in  the  goods ;  since,  by  paying  money  into  court,  he 
admits  the  original  contract: (e)  If  a  purchaser  mean  to  insist  on  such  an 
objection,  he  ought  to  return  the  goods.(e)  Bringing  money  into  court 
bemo-  an  acknowledgment  on  record,  the  party  can  never  recover  it  back 
again  though  it  afterwards  appear  that  he  paid  it  wrongfully :{/)  And 
the  court  of  Common  Pleas  will  not  order  money  brought  in  by  the 
defendant  through  a  mistake  to  be  restored,  unless  it  appear  that  some 
fraud  or  deceit  has  been  practised  upon  him.(gg)  But  bringing  money 
into  court  is  said  to  be  an  admission  of  a  legal  demand  only  :{h)     And 

(ff)  5  Taunt.  840.  1  Marsh.  392,  S.  C. ;  and  see  6  Moore,  430.  3  Brod.  &  Bing.  1G8,  S.  C. 
6  Moore,  431,  436,  in  noiis.    11  Price,  533. 

(a)  2  Marsh.  478,  (6)  3  Campb.  41.    1  Car.  &  P.  21,  n. 

(c)  5  Bur.  2640.    2  Durnf,  &  East,  275. 

(d)  2  Salk.  597.  2  Str,  1037.  Cas.  temp.  Hardw.  206,  S.C.  Pr.  Reg.  250.  Cas.  Pr.  C.  P. 
36,  S.  C. 

(e)  2  Stark.  Ni.  Pri.  103,  (f)  2  Durnf.  &  East,  645. 
(r/g)  2  Bos.  &  Pul.  392.  (A)  1  Bos.  &  Pul.  264. 

[a]  Payment  of  money  into  court  admits  the  cause  of  action  stated  in  the  declaration  to  the 
amount  j^aid  in  ;  and,  beyond  that  amount,  the  party  may  make  his  defence.  Spalding  v. 
Vandercook,  2  Wend.  431.  Johnson  v.  Columbian  Ins.  Co.,  7  Johns,  315.  Where  money  is 
paid  into  court,  the  sum  paid  in  is  considered  as  stricken  out  of  the  declaration  ;  and  unless 
the  plaintiff  proves  a  larger  sum,  the  defendant  must  have  a  verdict.  And  where,  in  such 
case,  a  verdict  is  taken  for  the  plaintiff,  subject  to  the  question  of  practice  to  be  settled  by 
the  Supreme  Court,  that  question  must  be  determined,  on  a  case  made,  not  as  a  non-enume- 
rated motion.  Bank  of  Columbia  y.  SoutJierlatid,  3  Cow.  336.  Upon  payment  of  money  into 
court,  the  clerk  takes  it  as  the  private  agent  of  the  party  paying,  except  in  two  cases,  upon 
tender  pleaded,  and  where  the  party  has  obtained  leave  of  the  court  so  to  do.  3Iazych  r. 
irEwen,  2  Bailey,  28,  A  payment  made  to  the  plaintiff  after  action  brought  is  held,  in  Vir- 
ginia, equivalent  to  bringing  the  money  into  court,  in  reference  to  the  costs  of  the  plaintiff. 
Hudson  V.  Johnson,  1  Wash.  10.  And  if  the  defendant,  in  an  action  of  assumpsit,  contain- 
ing the  common  money  counts,  and  also  a  count  for  the  use  and  occupation  of  certain  pre- 
mises described,  pays  a  part  of  the  sum  demanded  into  court,  without  specifying  to  which 
of  the  counts  the  payment  is  to  be  applied,  such  payment  is  an  admission  only  that  the  de- 
fendant owes  the  plaintiff  on  some  one  or  several  of  the  counts,  the  sum  so  paid,  but  it  is 
not  an  admission  of  any  particular  contract  or  debt  under  any  one  of  the  counts,  nor  a  lia- 
bility on  all  of  them.  Hubbard  v.  Knous,  7  Cush.  556.  As  to  forms  and  practice  on  paying 
money  into  court,  see  J3ank  of  Columbia  v.  Soiitherland,  3  Cowen,  336. 


OF  BRINGING  MONEY  INTO  COURT.  624 

beyond  the  amount  of  the  sum  liroujrlit  in,  it  i.s  no  acknowledgment  of  the 
right  of  action  :{i)  therefore  if  the  j)hiintifl'  proceed  further,  it  is  at  his  peril. 
So,  in  actions  of  trespass  against  justices  of  the  peace,  ic.  for  acts  done 
by  tliem  ex  officio,  bringing  money  into  court  seems  to  be  no  admission  of  the 
right  of  action. (^)  And  wlu're  money  has  btt-n  paid  into  court,  sliort  of 
the  |)laintiirs  di-mand,  and  it  is  taken  out  of  court,  evidence  is  admissible 
to  sh(»w  (juo  ((ni)ito  it  was  done;  and  it  is  not  to  be  taken  conclusively  as 
an  admission  tiiat  the  rest  of  the  demand  was  unf(juniled.(/) 

It  has  been  doubted,  whether  the  plaintiff  can  be  nonsuiteiJ,  after  bring- 
ing money  into  court ;  but  there  seems  to  be  little  reason  for  such  a 
doubt. [a]  When  money  is  brought  into  court,  unless  the  plaintifl'  will 
accept  it  with  costs,  in  discharge  of  the  suit,  it  is  considered  as  ])aid  before 
action  brought,  and  struck  out  of  tlie  declaration:  and  the  action  jiroceeds 
for  the  residue  of  the  demand,  in  like  manner  as  if  it  had  been  originally 
commenced  for  that  only.(;/i)  And,  accordingly,  the  practice  of  nonsuiting 
the  plaintiff,  after  money  paid  into  court,  appears  to  be  supported 
by  many  *authorities.(r/)  It  seems,  therefore,  that  after  payment  [  *G25  ] 
of  money  into  court,  there  may  be  a  nonsuit,  a  judgment  as  in 
case  of  a  nonsuit,  a  demurrer  to  evidence,  or  a  ])lea^/iH/»  darrein  cant  in  nance : 
in  short,  that  the  cause  goes  on  substantially  in  the  same  manner,  as  if 
the  money  had  not  been  paid  in  at  all. (6) 

When  the  declaration  contains  a  count  on  a  special  contract,  bringing 
money  into  court  gen eralli/  is  an  admission  of  the  contract,  so  as  to  super- 
sede the  necessity  of  proving  it  at  the  trial  :(t')[i']  therefore  in  such  case, 
if  the  defendant  mean  to  deny  the  existence  of  the  contract,  he  should  pay 
money  into  court  specialli/,  on  the  other  counts  of  the  declaration.  So, 
where  the  defendant  paid  money  into  court  generally,  upon  a  declaration 
containing  a  count  on  a  policy  of  assurance,  together  with  the  money 
counts,  the  court  of  Kings  Bench  held,  that  this  was  an  admission  of  the 
contract  stated  in  the  special  count ;  and  that  it  was  not  competent  to  the 

(t)   1  Durnf.  &  East,  464,  and  see  3  Durnf.  &  East,  G57.     4  Durnf.  &  East,  570. 
h)   U  East,  202,  3.  (/)  5  Esp.  Rep.  GO. 

(m)  3  Durnf.  &  East,  6,  1. 

(a)  2  Salk.  507.  Pr.  Reg.  250.  Cas.  Pr.  C.  P.  3G,  S.  C.  Cas.  temp.  Hardw.  200.  2  Str. 
1027,  S.  C.  4  Durnf.  &  East,  10.  7  Durnf.  &  East,  372.  2  Esp.  Rep.  481,  G07.  2  U.  Blac. 
374  ;  and  see  1  Canipb.  327,  8,  m7iotis.    3  Ring.  290.    2  Car.  k  P.  b5,  S.  C. 

(b)  2  H.  Blac.  375,;;pr  Eijre,  Ch.  J. 

(r)  2  Durnf.  &  East,  275.  4  Durnf  &  East,  579.  Penke's  Cas.  XL  Pri.  3  Ed.  20,  Id.  (a.) 
1  Esp.  Rep.  347.  2  East,  128.  2  H.  Blac.  374.  Jin/an  v.  Williamson,  M.  38 Geo.  111.  C.  P.  2 
Bos.  &  Pul.  550.    2  Campb.  357.     1  Car.  &  P.  20.  \b.) 

[a]  It  is  settled,  that  a  plaintiff  may  be  nonsuited  after  plea  of  tender  and  payment  into 
court.  Jenkins  v.  Cutchens,  2  Miles,  G5,  Peri'e/^jV,  P.  J.  Arconl.  MCrcedyy.  Fay,  1  Watts. 
400. 

[b]  Whore  money  is  paid  into  court  generally,  it  is  an  admission  of  the  contract  set  forth 
in  each  of  the  counts  ;  but  if  the  payment  was  not  intended  to  be  made  on  all  the  counts, 
the  court  will  allow  an  amendnunt  of  the  rule,  so  as  to  ni)])ly  it  to  particular  c«)unt.s.  Jonct 
V.  Hour,  5  Pick.  285.  Hiinliiii/lon  v.  American  Bunk.  G  Pick.  34u.  Thus,  where  liy  the  vote 
of  the  directors  of  a  bank,  the  plaintiff  was  appointed  special  director,  to  receive  such  com- 
pensation as  "should,  in  the  opinion  of  the  board,  be  reasonable  and  fair,"  and  he  declared 
for  a  reasonable  compensation  in  a  quantum  mrruit  count,  and  the  defemlant,'?  pai<l  into  court 
the  amount  voted  by  the  directors  to  be  a  "  reasonable  ( onipcnsation," — it  wa."*  held,  that, 
by  paying  the  money  into  court,  the  defendants  waived  this  limitation  of  the  contract.  Hun- 
tington V.  American  Bank,  G  Pick.  340.  The  holder  of  a  jiromissory  note  commenced  actions 
thereon  against  the  maker,  and  against  the  indorser,  and  the  maker  brought  into  court  the 
full  amount  of  the  note  with  interest.  It  was  held,  that  the  holder  was  not  bound  to  accept 
it,  unless  the  costs  of  both  actions  should  be  paid.      Whipple  v.  Netcton,  17  Pick.  168. 


(325  OF  BRINGING  MONEY  INTO  COURT. 

defendant  to  sIioav  that  the  policy,  by  which  the  risk  was  originally  made 
to  cease  after  the  ship  had  moored  twenty-four  hours  in  safety,  was  after- 
wards altered  by  the  broker,  without  the  defendant's  knowledge. (t^)  So, 
where  two  breaches  were  assigned  in  one  count  of  a  declaration  upon  a 
contract,  and  the  defendant  paid  money  into  court  upon  one  of  them,  the 
court  held  that  he  thereby  admitted  the  whole  contract,  as  set  out  in  that 
count. (e)  And  after  payment  of  money  into  court  by  a  defendant,  in  an 
action  brought  against  him  on  the  2  &  3  Edw.  VI.  c.  13,  by  a  farmer  of 
tithes,  he  cannot  object  to  the  plaintiff's  title  to  the  tithes  ;  because  he  has 
admitted  the  plaintiff's  right  generally,  and  has  reduced  the  cause  to  a 
mere  question  of  the  amount  of  the  damages. (/)  A  tender  also,  upon  which 
money  is  paid  into  court,  admits  the  contract  and  facts  stated  in  the  declara- 
tion :  Therefore,  where  a  count  averred,  that  in  consideration  that  the 
plaintiff  would  let  to  the  defendant  certain  tithes,  the  defendant  agreed  to 
pay  41?.,  and  that  plaintiff  did  let  the  said  tithes,  and  permit  the  defendant 
to  take  them ;  a  tender  pleaded  to  all  the  counts  generally,  was  held  to 
preclude  the  defendant  from  showing  a  legal  interruption  to  his  taking 
the  tithes,  if  any  such  interruption  had  subsisted.  ((/)  But  payment  of  money 
into  court  generally,  upon  a  declaration  containing  a  count  on  a  policy  of 
assurance,  and  the  money  counts,  is  only  an  admission  of  the  contract ;  but 
does  not  preclude  the  defendant  from  disputing  his  liability  beyond  such 
payment,  for  goods  which  were  not  loaded  according  to  the  terms  of  the 

policy.  (7i)  And  where,  in  an  action  on  a  policy  of  *  assurance, 
[  *626]    it  appeared  that  the  plaintiff,  by  his  conduct  previous  to  the  trial, 

had  induced  the  defendant  to  believe  that  the  only  point  to  be  tried 
was  a  question  of  fraud,  and  suffered  him  to  prepare  his  evidence  accordingly  ; 
the  court  of  Common  Pleas  would  not  allow  the  plaintiff  to  object  to  the 
receipt  of  that  evidence  at  the  trial  upon  the  ground  of  the  contract  having 
been  admitted  by  the  payment  of  money  into  court. (a)  So,  in  an  action 
on  a  valued  policy,  the  payment  of  money  into  court,  upon  a  count  which 
states  a  total  loss  by  capture,  is  no  admission  of  a  total  loss  ;  but  the  plaintiff 
is  bound  to  prove  that  he  has  suffered  damage  from  the  capture,  beyond 
the  amount  of  the  sum  paid  into  court. (5)  So,  the  payment  of  money  into 
court,  on  several  common  counts,  one  of  which  alone  is  applicable  to  the 
plaintiff's  demand,  admits  a  cause  of  action  on  that  count  only  :(c)  And 
accordingly,  where  the  plaintiff  alleges  in  his  declaration,  multifarious 
and  inconsistent  demands,  arising  out  of  the  same  transaction,  payment 
into  court  of  a  sum  insufficient  to  meet  all  the  demands,  cannot  be  ap- 
plied by  the  plaintiff  to  prove  such  one  of  them  as  he  may  elect  at  the 
trial. ((^fZ)  Where  the  declaration  stated  that  the  plaintiff  had  sold  to  the 
defendant  a  quantity  of  oak  bark,  at  the  average  price  of  the  season,  to  be 
ascertained  before  a  given  day,  and  then  averred  that  before  that  day  the 
average  price  was  ascertained  to  be  a  given  sum  ;  it  was  liolden  that  the 
payment  of  money  into  court  did  not  admit  the  average  price  to  be  as  stated 
in  the  declaration. (^e)  And  in  assumpsit  for  goods  sold  and  delivered,  and 
on  the  money  counts,  where  the  defendant  had  pleaded  the  general  issue, 

{d)  9  East,  325. 

(e)  1  Barn.  &  Cres.  3.    2  Dowl.  &  Rvl.  19  S.  C.  (/)  4  Price,  58. 

[g)  3  Taunt.  95.  "  {h)  2  Maule  &  Sel.  106. 

{a)  3  Bos.  &  Pul.  556.  {h)   1  Campb.  557.    1  Taunt.  419,  S.  C. 

(c)  9  Moore,  724.    2  Bing.  377.    1  Car.  &  P.  403,  S.  C. 

[dd)  1  Taunt.  450.    1  Moore,  158,  S.  C.  (ee)  2  Barn.  &  Aid.  116. 


OF  BRINGING  MONEY  INTO  COURT.  62G 

with  the  statute  of  limitations,  and  paid  money  into  court  generally  ;  the 
court  licld,  tliat  such  payment  did  not  take  tlic  case  out  of  the  Btatute,{/) 

When  money  i.s  hnnight  into  court,  the  plaintiff  either  accepts  it,  -with 
costs,  in  discharge  of  the  suit,  or  proceeds  in  the  action  :  In  the  former  case, 
he  should  take  an  office  copy  of  the  rule,  and  procure  an  app(nntment  there- 
on from  the  master,  or  one  of  the  prothonotarics,  to  tax  the  costs,  and  serve 
the  same  on  the  defendant's  attorney  ;  or,  in  default  thereof,  it  will  he  con- 
sidered that  the  j)laintill'intends  to])roceed  in  the  action,  to  recover  a  larger 
sum  than  that  paid  into  court. (//)  The  costs  being  taxed,  should  he  lorth- 
with  paid  to  the  plaintiff  or  his  attorney  ;  and  if  they  arc  not  paid,  the  plain- 
tiff may  proceed  in  the  action  ;  and  proof  of  the  rule  to  pay  money  into 
court  will  of  itself  entitle  him  to  a  verdict,  with  nominal  damages  :(//)  Or, 
in  the  Common  Pleas  and  Exchequer,  the  plaintiff,  ai'ter  demanding  the 
costs,  may  have  an  attachment  for  the  non-payment  of  them  ;  and 
in  these  courts,  he  may  proceed  in  the  action,  ^without  a  previous  [  *G2T  ] 
demand  of  the  costs. (</a)  But,  in  the  King's  Bench,  the  plaintiff 
must  proceed  in  the  action,  if  they  are  not  paid,  and  cannot  have  an  attach- 
ment ;(/>6)  for  the  rule  in  this  court  is  conditional,  and  not,  as  in  the  Connnon 
Pleas, (c'c)  obligatory  upon  the  defendant  to  pay  the  costs. 

If  the  plaintiff  proceed  in  the  action,  the  sum  brought  into  court  is,  by  the 
terms  of  the  rule,  to  be  struck  out  of  the  declaration,  and  paid  out  of  eoiirt, 
to  the  plaintiff  or  his  attorney  ;  and  upon  the  trial  of  the  issue,  the  plaintiff 
shall  not  be  permitted  to  give  evidence  for  the  same  :  In  such  case,  if  the 
plaintiff  proceed  to  trial, (t^)  otherwise  tlian  for  the  non-payment  of  costs, 
and  do  not  prove  more  to  be  due  to  him  than  the  sum  brought  in,  the  plain- 
tiff, on  the  rule  being  produced, (f)  shall  be  nonsuite<l,(//")  or  have  a  verdict 
against  \\'nn,{</f/)  and  pay  costs  to  the  defendant  :(/<//)  and  even  though  the 
rule  bo  not  produced,  the  plaintiff  it  seems  cannot  take  a  verdict  for  the  sum 
brought  into  court.(/)  But  if  more  appear  to  be  due  to  him,  he  shall  have 
a  verdict  for  the  overplus,  and  costs. (/r)  When  the  plaintiff  proceeds  fur- 
ther, Avithout  going  on  to  trial,  he  shall  have  his  costs,  to  the  time  of  Ijring- 
ing  money  into  court ;  and  the  defendant  be  allowed  his  subseciuent  costs  :(/) 
And  the  plaintiff  is  entitled  to  costs,  up  to  the  time  of  bringing  money  into 
court,[A]  though  he  afterwards  give  notice  of  trial,  which  he  neglects  to  coun- 


i^ 


(/)  3  Barn.  &  Crcs.  10.     4  Dowl.  &  Ryl.  032,  S.  C. 

iff)  R.  M.  31  Geo.  III.  K.  B.     4  Durnf!^  k  East,  12. 

(h)  1  Campb.  558,  n.  So  if,  after  action  hrougrlit,  the  money  souplit  to  bo  rerovered  is 
paid,  without  a  rule  of  court,  the  plaintiff  must  have  a  verdict.  /(/.  5.")!i,  n.  Holt  Ni.  I'ri.  G, 
and  see  5  Barn.  &  Aid.  886.    Ante.  338. 

(aa)  2  New  Rep.  C.  P.  473.     6  Price,  12G.     7  Price,  074. 

(hb)  2  Str.  1220.     7  Durnf.  &  East,  6. 

(cr)  Barnes,  283.     Pr.  Rofr.  250,  S.  C.     11  East,  310. 

(d)  2  Salk.  .^)97.    2  Str.  1027.    ('as.  lernp.  Hardw.  200,  S.  C.  Say.  Rep.  100,  7.    2  Bur.  1121. 

(p)  0  Com.  Dip.  20,  and  see  Willes,  485. 

(ff)  Qu.  Wiietlicr  a  plaintiff,  having  taken  money  out  of  court  after  being  nonsuited,  and 
never  having  moved  to  set  the  nonsuit  aside,  is  barred  from  bringing  a.  new  action?  3  Esp. 
Rep.  100.  {gg)  ('as.  temp.  Hardw.  200. 

{hh)  4  Dnrnf.  k  East.  10.  1  Saund.  33,  (2.)  2  Taunt.  301.  4.  Taunt.  100.  but  see  1  Durnf. 
&  East,  710.    2  Bos.  &  Pul.  50,  contra.  (i)   llnviland  v.  C„h^  .M.  24  Geo.  HI.  K.  B. 

[k)  Cas.  temp.  Hardw.  200.  As  to  the  effect  of  taking  the  single  rent  out  of  court  upon  a 
plea  of  tender,  in  an  action  for  double  value,  with  a  count  for  use  and  occupation,  sec  10 
East,  48. 

(I)  1  Durnf.  k  East,  029.  Willes,  101.  Barnes,  280,  282.  Pr.  Reg.  254,  5,  S.  C.  1  Younge 
&  J.  213,  but  see  Say.  Rep.  100,  contra. 

[a]  Costs  paid  into  court  are  irrevocable.  Clement  v.  Biiler,  3  Watts,  248.  Where  money 


gOJ  OF  BRINGING  MONEY  INTO  COURT, 

tcrinand,  whereby  the  defendant  is  entitled  to  judgment  as  iu  ease  of  a  non- 
suit [(/n)  or  thougli  theplaintifi"  afterwards  enter  the  record  for  trial,  and 
■withdraw  it.{>t)  But  the  plaintiff  is  not  entitled  to  costs,  up  to  the  time  of 
brin"ing  money  into  court,  after  the  defendant  has  obtained  judgment  as  in 
case  of  a  nonsuit,(o)  or  judgment  of  non  pros  for  not  entering  the  issue,(/;) 
or  after  a  juror  has  been  withdrawn  by  consent.(^)  In  the  Exchequer,  the 
plaintiff  is  entitled  to  costs,  up  to  the  time  of  bringing  money  into  court, 
although  he  has  made  default  in  trying  the  cause,  after  a  peremptory  un- 
dertaking ;(r)  And  he  may  take  the  money  out  of  court,  without  an  ap- 
plication for  that  purpose ;  and  by  so  doing,  all  further  proceedings  are 

stayed,  (r) 
[  *628  ]      *In  the  King's  Bench,  where  the  defendants,  in  several  actions 

on  a  policy  of  assurance,  paid  money  into  court,  which  the  plaintiff 
took  out,  without  taxing  costs,  at  that  time  and  afterwards  the  defendants 
entered  into  the  common  consolidation  rule,  and  the  plaintiff  was  nonsuited 
in  the  action  that  was  tried  ;  the  court  held,  that  the  latter  was  not  entitled 
to  the  costs  in  any  of  the  actions,  up  to  the  time  of  paying  money  into 
court. (rt)  But  in  actions  on  policies,  in  the  Common  Pleas,  Avhere  there  is 
a  consolidation  rule,  and  money  paid  into  court,  although  the  cause  tried 
follows  the  general  practice,  and  the  defendant,  if  he  succeed,  is  entitled  to 
the  whole  costs  of  that  cause,  yet  the  plaintiff  is  entitled  to  the  costs  of  the 
short  causes,  up  to  the  time  of  paying  the  money  into  court.  (5)  So,  in  the 
King's  Bench,  where  the  defendants  in  several  actions  on  a  policy  of  insu- 
rance, paid  money  into  com-t,  and  (the  plaintiffs  refusing  to  consent  to  a 
consolidation  rule)  obtained  a  rule  for  staying  proceedings  in  the  others, 
until  after  the  trial  of  one,  upon  the  terms  of  their  admitting  their  subscrip- 
tion to  the  policy,  the  interest  of  the  plaintiffs,  &c.  and  afterwards  judgment 
passed  for  the  defendant  in  the  cause  tried ;  the  court  held,  that  the  plain- 
tiffs were  entitled,  in  the  other  actions  to  costs,  to  the  time  of  paying 
money  into  com't.(e)  Where  the  defendant,  having  paid  money  into  court 
generally,  upon  a  declaration  containing  a  count  on  a  policy  of  assurance, 
together  with  the  money  counts,  obtained  a  rule  after  verdict,  to  amend 
the  rule  for  paying  money  into  court,  by  confining  it  to  the  money  counts, 
and  for  a  new  trial,  on  payment  of  costs  ;  the  court  of  King's  Bench  held, 
that  the  plaintiff  on  taking  the  money  out  of  coui't,  was  entitled  to  all  the 
costs  of  the  action,  and  not  merely  to  the  usual  costs  on  a  rule  for  a  new 
trial.((i)     And,  in  the  Common  Pleas,  where  in  an  action  on  a  policy,  with 

{vi)  8  Duriif.  &  East,  408. 

(«)  Id.  486.  (o)  2  Maule  &  Sel.  335. 

(p)  6  Taunt.  158.    1  Marsh.  510,  S.  C.  (?)  3  Dunif.  &  East,  657. 

(r)   1  Younge  &  J.  213.  [a)   7  Durnf.  &  East,  372. 

\b)  2  Taunt.  361 ;  and  see  2  Bos.  &  Pul.  56,  3  Bos.  &  Pul.  558,  accord. 
{c)  6  Maule  &  Sel.  107.  {d)  9  East,  325. 

is  paid  into  court  after  issue  joined,  and  tlie  plaintiff  proceeds  in  the  suit,  but  recovers  no 
more  than  the  amount  paid  in,  the  defendant  is  entitled  to  the  costs  of  the  defence  subse- 
quent to  the  payment  of  the  money,  but  not  to  the  costs  previously  accrued.  Aikins  v. 
Colton,  3  Wend.  326.  Money  paid  into  court,  not  in  pursuance  of  a  tender  made  before 
the  suit  is  brought,  must,  to  be  available,  include  the  costs  iu  the  suit  up  to  that  time. 
GosUii  V.  Ilodson,  24  Term.  140.  The  acceptance  of  money  paid  into  court,  operates  as  a 
payment,  pro  tanto,  and  also  as  a  conclusive  admission  of  the  conditions  upon  which  it  was 
paid  into  court.  lb.  A  party  cannot  make  the  payment  of  money  into  court  available, 
unless  it  be  done  under  an  order  of  court,  and  upon  the  payment  of  all  costs  up  to  the  time 
of  bringing  the  money  into  court.  Keith  v.  Smith,  I  Swan,  (Tenn.)  92.  Harvey  v.  Eackley, 
6  Watts,  264. 


OF  BRINGING  MONEY  INTO  COURT.  G28 

the  usual  money  counts,  the  defendant  ])aid  the  preyniums  into  court,  on 
the  count  for  money  had  and  received,  and  the  jdaintifl'  took  it  out,  there 
being  no  consolidation  rule,  the  latter  was  holden  to  be  entitled  to  his  full 
costs  on  all  the  counts,  althou^^h  he  had  failed  on  the  special  counts,  in 
another  action  on  the  same  policy. (f) 

In  the  Common  Pleas,  if  tlu'  plaintiff  die,(/)  or  be  nonsuited,(r/)  after 
money  is  brought  into  court,  the  court  will  not  order  it  to  be  paid  back  to 
the  defendant.  So,  if  the  defendant  die  after  bringing  money  into  court,  it 
shall  not  be  paid  back  to  his  executors. (7<)  But  where  the  bail,  upon  putting 
off  a  trial,  had  paid  a  sum  of  money  into  court,  to  a])ide  the  event  of  the  suit, 
and  the  suit  having  afterwards  abated  by  the  death  of  the  (k-fcndant,  they 
were  permitted  to  take  the  money  out  of  court,  although  it  was  opposed 
both  by  the  ])laintifl",  and  by  the  administrator  of  the  defendant. (/)  And  if 
the  plaintiff  have  a  verdict  against  him,  after  money  is  brought 
into  *court,  the  court  will  order  it  to  be  paid  out  to  the  defendant,  [  *G29  ] 
towards  satisfaction  of  his  costs. (rt)[A]  It  had  been  a  question 
often  agitated  in  that  court,  whether  in  cases  Avhere  there  was  a  rule  to  pay 
money  into  court,  the  production  of  it  by  the  defendant  was  to  be  considered 
as  evidence  on  his  part,  which  gave  the  plaintiff's  counsel  a  riglit  to  re])ly: 
If  the  plaintiff  took  a  verdict  for  the  whole  of  his  demand,  without  giving 
credit  for  the  sum  paid  into  court,  the  court  would  set  it  aside,  without  re- 
quiring evidence  of  the  existence  of  such  a  rule :  and  therefore  a  rule  was 
made,  that  in  future  this  should  not  be  considered  as  evidence  on  the  part 
of  the  defendant,  so  as  to  give  the  plaintiff  a  right  to  reply.(i)[l] 

(e)  5  Taunt.  GOY.  (/)  Cas.  Pr.  C.  P.  129.  Pr.  Reg.  255,  Barnes,  231,  S.  C. 

(ff)  Cas.  Pr.  C.  P.  36.  Pr.  Reg.  250,  S.  C,  and  see  id.  252. 

(h)  Barnes,  279.  Pr;  Reg.  252,  S.  C. 

(?■)    Ward  V.  Lowrinj,  M.  45,  Geo.  III.  K.  B.  2  Smith  R.  49,  S.  C. 

(a)  Cas.  Pr.  C.  P.  54.    Pr.  Reg.  251,  S.  C.    Barnes,  280. 

(b)  2  Taunt.  267,  1  Car.  &  P.  21,  n. 

[1]  The  practice  on  the  subject  of  paying  money  into  court  has  been  materially  improved 
in  England  by  a  recent  statute.  By  the  provisions  of  the  law  amendment  act,  ^  &  4  \V.  IV. 
c.  42,  §  21  ;  and  sec  2  Rep.  C.  L.  Com.  52,  97  ;  "  it  shall  be  lawful  for  the  defendant  in  all 
personal  actions,  (except  actions  for  assault  and  battery,  false  imprisonment,  libel,  slander, 
malicious  arrest  orprosecution,  criminal  conversation,  or  debauching  of  the  plaintiff's  daughter 
or  servant,)  by  leave  of  any  of  the  sujicrior  courts  of  law  at  WtstiuitDster,  where  such  action 
is  pending,  or  a  judge  of  any  of  the  said  superior  courts,  to  pay  into  court  a  sum  of  money, 
by  way  of  compensation  or  amends,  in  such  manner,  and  under  such  regulations,  as  to  the 
payment  of  costs,  and  the  form  of  the  j)leadiug,  as  the  said  Judges,  or  any  cii//it  or  more  of 
them,  of  whom  the  chief  of  each  of  the  said  courts  shall  be  three,  shall,  by  any  rules  or  orders 
b}-  them  to  be  from  time  to  time  made,  order  and  direct."  By  the  above  act,  the  defendant 
may  pay  money  into  court,  in  many  cases  where  he  was  not  formerly  allowed  to  do  so,  as  in 
actions  for  general  damages,  not  being  for  assault  and  battery,  or  false  imprisonment,  kc. 
But  in  an  action  by  landlord  against  tenant,  for  not  repairing,  the  court  refused  to  allow  the 
defendant  to  pay  a  sum  of  money  into  court,  by  way  of  compensation  and  amends,  un<ier 
the  above  statute  ;  and  that  the  same  sum  might  be  received  into  court,  under  a  plea  in  the 
form  given  by  the  rule  made  thereon,  and  under  a  jjlea  of  tender  before  action  lirought ; 
Searle  v.  JJarrctt,  4  Nev.  &  il.  200.  Dearie  v.  Barrett,  2  Ad.  &  E.  «2.  JJarretr.  Ucarle,  3  Dowl. 
Rep.  13.  9  Leg.  Obs.  108,  20G,  B.  C. 

In  pursuance  of  the  power  given  by  the  above  act,  a  statutory  rale  was  made  by  the  judges 

[a]  Where  money  has  l)een  paid  into  court  by  the  defendant,  and  the  plaintiff  dies  and  his 
administrator  is  substituted,  who  does  not  appear  and  is  nonsuited,  the  money  will  bo 
impounded  to  answer  the  defendant's  costs.  Jeukinn  v.  Cutehrnx,  2  Miles,  G5.  And  after 
payment  of  money  into  court,  the  defendant  can  never  take  it  out ;  yet  if  the  plaintiff  fails 
in  his  action,  as  by  nonsuit  on  motion,  and  the  money  has  not  a  Iready  been  taken  out  of 
court  by  him,  the  court  will  impound  it  to  answer  the  defendant's  costs.  Jenkins  v.  Cute/tins, 
2  Miles,  65.  Payment  into  court,  under  a  plea  of  tender,  by  one  of  several  joint  defendants, 
is  a  payment  for  all,  and  the  money  may  be  impounded  iu  such  case,  for  cost  of  all.  Ibid. 


♦ggQ  OF  PLEAS  TO  THE  JURISDICTION. 


*CHAPTER    XXVI. 

Of  Pleas  to  the  Jurisdiction  ;  Claiming  Conusance  ;  and  Pleas  in 

Abatement. 

The  general  order  of  Pleading  is, 

I.  To  the  Jurisdiction  of  the  Court. 
II.  To  the  Person, 

1.  Onhe  Plaintiff: 

2.  Of  the  Defendant. 

III.  To  the  Count. 

IV.  To  the  Writ;  and  herein, 

1.  To  the  Form : 

2.  To  the  Action  of  the  Writ. 

V.  To  the  Action  itself,  in  bar  thereof. (rt) 

(a)  Co.  Lit.  303,  Latch,  178.  Gilb.  C.  P.  49,and  see  Steph.  PI.  429,30.  And  for  an  account 
of  the  various  kinds  of  pleas  in  Equity,  and  their  essential  difference,  see  Beam.  PI.  Eq. 
Chap.  II. 

of  all  the  courts  ;  R.  PI.  Gen.  H.  4  W.  IV.  reg.  17,  18.  5  Barn.  &  Ad.  Append,  vi.  10  Bing. 
468.  2  Cromp.  &  M.  18,  by  which  it  was  ordered,  that  "  when  money  is  paid  into  court,  such 
payment  shall  be  pleaded  in  all  cases,  and  as  near  as  may  be  in  the  form  prescribed  by  the 
rule."  Besides  that  it  was  thought  much  more  convenient,  as  well  as  more  consistent  with 
the  real  state  of  facts,  that  payment  of  money  into  court  should  be  put  into  the  shape  of  a 
plea,  other  advantages  are  gained  by  putting  it  into  that  shape,  namely,  that  the  exjiense  of 
a  rule  of  court,  and  of  proving  such  rule  at  the  trial,  is  avoided  ;  that  a  specific  issue  will 
arise  as  to  the  sufficiency  of  the  sum  ;  and  that  the  admission  of  the  plaintiff's  right  of  action, 
and  the  extent  of  that  admission,  will  appear  on  the  record ;  a  circumstance  which  will  be 
found  peculiarly  beneficial  in  actions  of  trespass  to  land ;  2  Rep.  C.  L.  Com.  54,  5. 

If  it  be  intended  to  defend  part  of  the  action,  and  to  pay  money  into  court  as  to  other 
part,  the  plea  or  pleas  to  the  part  defended  should  be  pleaded  first,  and  the  payment  into 
court  should  be  pleaded  as  to  the  residue;  Sha7-7Han  v.  Stevenson,  1  Gale,  74.   5  Tyr.  Rep.  564. 

3  Dowl.  Rep.  709.  2  Cromp.  M.  &  R.  75.  10  Leg.  Obs.  315,  S.  C.  And  where,  to  a  declara- 
tion for  311.  on  a  bill  of  exchange,  and  lOOZ.  for  money  paid,  money  lent,  goods  sold,  interest, 
and  on  an  account  stated,  the  defendant  pleaded  as  to  the  31/.,  and  as  to  12/.  parcel  of  the 
100/.  for  goods  sold,  and  as  to  the  100/.  on  the  account  stated,  payment  into  court  of  51/.  and 
alleged  that  the  plaintiff  had  not  sustained  damages  to  a  greater  aniount,  in  respect  of  so 
much  of  those  causes  of  action  as  in  the  plea  mentioned,  it  was  doubted  whether  such  plea 
was  good,  on  special  demurrer:  and  it  seems  that  the  defendant  oiight  to  have  shown  dis- 
tinctlv,  what  portion  of  the  money  paid  into  court  was  to  be  applied  to  the  bill  of  exchange ; 
Jourdain  v.  Johnson,  2  Cromp.,  M.  &  R.564.  5  Tyr.  Rep.  524.  1  Gale,  312.  4  Dowl.  Rep.  534, 
S.  C. ;  and  see  Marshall  v.  Whiteside,  I  Meeson  &  W.  191,  2.  1  Tyr.  &  G.  485.  4  Dowl.  Rep. 
770,  S.  C.  And  it  has  been  holden,  that  a  plea  of  pajinent  of  money  into  court,  beginning 
"  as  to  so  much,  parcel"  &c.,  and  concluding  without  any  prayer  of  judgment,  is  bad,  on 
special  demurrer  ;  Sharman  v.  Stevenson,  1  Gale,  74  ;  and  see  Porter  v.  Izat,  1  Tyr.  &  G.  639. 
Where  there  are  several  counts  for  several  causes  of  action,  or  several  breaches  are  assigned 
in  covenant,  tlie  defendant  may  plead  payment  into  court  of  one  entire  sum,  in  satisfaction 
of  all  the  counts  or  breaches  :  Marshall  v.  Whiteside,  1  Meeson  &  W.  188.     1  Tvr.  &  G.  485. 

4  Dowl.  Rep.  766,  S.  C;  and  see  Mee  v.  Tomlinson,  5  Nev.  &  M.  624.  1  Har.  &  W.  614,  S. 
C.  Lorymer  v.  Vizeu,  3  Bing.  N.  R.  222.  But  where,  upon  a  declaration  consisting  of  two 
counts,  the  defendant  paid  into  court  enough  to  cover  the  demand  in  the  first,  and  obtained 
a  verdict  on  the  second,  but  had  omitted  to  plead  the  payment,  as  required  by  the  new  rules, 
the  court  held  that  he  was  not  entitled  to  costs;  Adlardy.  Booth,  1  Bing.  N.  R.  693.  1  Scott, 
644,  S.  C. 

The  practice  of  paying  money  into  court,  however,  is  now  governed  by  the  law  amend- 
ment act,  and  the  statutory  rules  made  thereon ;  by  one  of  which  rules,  R.  PI.  Gen.  H.  4  "W". 
IV.  reg.  18  ;  5  Barn.  &  Ad.  Append,  vi.,  10  Bing.  468  ;  it  is  ordered,  that  "no  rule  or  judge's 
order  to  pay  money  into  court  shall  be  necessary,  except  under  the  3  &  4  W.  IV.  c.  42,  | 
21  ;  but  the  money  shall  be  paid  to  the  proper  officer  of  each  court,  who  shall  give  a  receipt 
or  the  amount  in  the  margin  of  the  plea,  and  the  said  sum  shall  be  paid  out  to  the  plaintiff 


OF  PLEAS  TO  THE  JURISDICTION.  630 

By  this  order  of  pleadinff,  each  suhsequent  plea  admits  the  former :  as, 
when  the  defendant  pleads  to  the  person,  he  admits  the  jurisdiction  of  the 
court ;  -when  he  j)leads  to  the  count,  he  admits  the  competency  of  the  plain- 
tiff, and  his  own  responsihility  ;  when  he  jileads  to  the  form  of  the  writ,  ho 
admits  the  form  of  the  count  ;(/>)  and  in  like  manner  of  the  rest. 

(r>)  Giib.  c.  p.  50. 

on  (leninnd."  I?y  this  rule  it  is  untipccssary  to  liiivo  any  rule  or  onler  for  puyinp  money 
into  court,  in  cases  where  it  was  aUowed  l)cfore  the  law  amendment  act.  In  such  cases  it 
is  to  he  i)aid  to  tiie  ])roi)er  oflicer,  as  a  matter  of  course,  without  any  rule  or  order  for  that 
purpose,  in  like  nuinner  ns  ui)on  a  jilea  of  tender.  Tidd,  Sup.  IH.tO,  p.  IH.  Hut  incases 
where  tiie  payment  of  money  into  court  was  first  allowed  liy  the  law  amendment  act,  as  in 
actions  for  general  damages,  Ac,  a  rule  of  court  or  judjje's  order  must  he  obtained  for  leave 
to  pay  it  in  :  And  the  jiayment  of  money  into  court  must  in  all  cases  be  pleaded,  even  though 
it  be  paid  in  under  a  rule  of  court  or  judge's  order. 

By  a  rule  of  nil  the  courts,  R.  PI.  II.  4  \V.  IV.  rep.  19  ;  r>  Harn.  k  Ad.  Append,  vi.  vii . ; 
10  Hinp.  4(;S,  CO;  2  Cromp.  &  M.  l!t;  made  in  puisuance  of  the  law  amendment  act,  "the 
plaintitr.  after  the  delivery  of  a  i)leii  of  j):iyment  of  money  into  court,  shall  be  at  lilierly  to 
reply  to  the  same,  by  accepting  the  sum  so  paid  into  court,  in  full  satisfaction  and  discharge 
of  the  cause  of  action,  in  respect  of  which  it  has  been  jjaiil  in  ;  and  he  shall  be  at  liberty,  in 
that  case,  to  ta.\  his  costs  of  suit,  and  in  ease  of  non-payment  thereof,  within /(jr^y-'''y/''  hour.'?, 
to  sign  judgment  for  his  costs  of  suit  so  ta.xed:  or  the  plaintiff  may  reply  that  he  has  sust^iined 
damages,  (or  that  the  defendant  is  indebted  to  him,  as  the  case  maybe,)  to  a  greater  amount 
than  the  said  sum  ;  (for  the  form  of  a  replication  to  a  plea  of  payment  of  money  into  court, 
see  6  Car.  &  P.  712,  (a) ;  1  Chit.  PI.  371,  72  ;  and  see  Proclor  v.  AichoUon,  7  Car.  k  P.  07 ; 
Jourddin  v.  John.ton.  2  Cromp.  M.  k  R.  5G4  ;  5  Tyr.  Rep.  524;  1  Gale,  .312;  4  Dowl.  Rep. 
534,  S.  C. ;  Mitr.'ihall  \.  W/iitrxide,  1  Meeson  &  W.  191,  92;)  and  in  the  event  of  an  issue 
thereon  being  found  for  the  defendant,  the  defendant  shall  be  entitled  to  judgment,  and  his 
costs  of  suit." 

If  the  defendant  pay  money  into  court,  as  to  part  of  the  plaintiff's  demand,  and  plead  non 
assumj^)si/,  or  nnnquam  indehilatus,  or  a  set-off,  or  other  plea,  as  to  the  residue,  the  plainfifT 
may  take  the  money  out  of  court,  in  satisfaction  of  the  cause  of  action  in  respect  of  which 
it  was  paid  in,  and  take  issue,  and  proceed  to  trial,  on  the  other  ])lea  :  But  where,  to  a  de- 
claration in  assumpsit,  brought  to  recover  the  sum  of  30/.,  the  defendant  pleaded,  first,  to 
the  whole  declaration,  payment  of  the  sum  of  27/.  4,?.  4d.  into  court,  and  that  the  plainlifT 
had  not  sustained  damages  to  a  greater  amount ;  secondly,  except  as  to  27/.  4.?.  4d.  nan  ns- 
sumpsit ;  thirdly,  payment  of  tiie  sum  of  10/.  before  action;  and  fourthly,  as  to  all  except 
27/.  4.?.  Ad.,  a  set-otf ;  to  which  the  ])laintin"  replied  that  he  acccjited  the  sum  paid  into  court, 
and  was  satisfied,  the  court  held  that  the  defendant  was  not  justified  in  signing  judgment  of 
non  pros,  for  want  of  a  rejilication  to  the  second,  third,  and  fourth  pleas.  Coatcs  v.  Stevens, 
2  Cromp.  M.  k  R.  118.  5  Tyr.  Rep.  7C4.  3  Dowl.  Rep.  784.  1  Gale,  75,  S.  G.  In  an  action 
on  the  case  for  an  injurj'  to  the  plaintiff's  reversionary  interest  in  a  wharf,  by  breaking  a 
wall,  the  defendant  having  pleaded  not  guilty  to  the  whole  declaration,  and  a  special  jdea 
of  justification,  and  the  plaintiff  having  new  assigned,  the  defendant  jiaid  money  into  court, 
which  was  accepted  in  satisfaction  of  the  cause  of  action,  the  coiirt  hebl  that  the  plaintiff 
was  entitled  to  the  costs  of  the  writ,  and  the  defendant  to  all  other  costs  prior  to  the  new 
assignment.  Griffiths  v.  Juries,  5  Dowl.  Rep.  1G7.  1  Meeson  &  W.  731,  S.  C.  In  an  action 
for  dilapidations,  the  defendant  having  paid  money  into  court,  the  plaintiff  replied  further 
damage;  and  having  subsequently  given  a  peremptory  undertaking,  pnrsimnt  to  which, 
however,  he  did  not  go  to  trial,  the  court  permitted  a  rule  for  judgment  as  in  case  of  a  non- 
suit to  be  discharged,  on  his  amending  his  replication,  by  accejiting  the  money  in  ."satisfac- 
tion of  the  cause  of  action,  and  paying  the  defendant's  costs,  incurred  since  the  payment  of 
the  money  into  court.  Kclh/  v.  Fliut,  13  Leg.  Obs.  04.  In  an  action  against  a  earrier,  for 
not  delivering  goods  at  a  specified  time,  the  defendant  pleaded  payment  of  money  into  court, 
and  the  plaintiff  rejdied  that  he  had  sustained  more  damages;  the  amount  paid  in  was  the 
cost  price  of  the  goods,  the  defendant  having  offered  them  in  spreir  to  the  jdainliff  two  day.s 
only  after  they  ought  to  have  been  delivered;  but  the  ]tlaintiff  provpil  that  lie  had  sustained 
inconvenience  and  loss,  by  not  having  the  goods  delivered  at  a  proper  time ;  the  jury, 
however,  found  for  the  defendant,  and  the  court  refused  to  set  aside  the  verdict.  Ex'ant  v. 
Leiiis,  3  Dowl.  Rep.  819.  10  Leg.  Obs.  332,  S.  V.  If  the  defendant,  to  a  declaration  in  the 
ordinary  form,  in  indehitatiis  assumpsit,  with  particulars  containing  various  causes  of  action, 
plead  ])ayinent  into  court,  he  is  not  precluded  by  his  i>lea,  from  contesting  his  liability  in 
respect  of  any  items  beyond  the  amount  paid  into  court  :  the  particulars  nf>t  being  con- 
sidered as  jiart  of  the  declaration.  Booth  v.  Ilouard,  5  Dowl.  Rep.  438.  1  Willmore,  W. 
&  D.  54,  S.  C. 


g3Q  OF  CLAIMING  CONUSANCE. 

Picas  to  the  jurisdiction  of  the  court  are  either  in  local  or  transitory  ac- 
tions. In  local  actions,  it  is  a  good  plea  to  say  that  the  lands  are  ancient 
demesne,  holden  of  the  king's  manor  ;(c)  or  that  the  cause  of  action  arose  in 
Wales,{d)  or  beyond  the  sea,(e)  or  in  a  county  palatine,(/)  cinc^ue  port,(^) 
or  otlier  exempt  jurisdiction. (/i)  In  ejectment,  the  tenants  in  possession 
cannot  plead  to  the  jurisdiction,  without  leave  of  the  court :(/)  And  Avhere 
ancient  demesne  is  pleaded,  there  must  be  an  affidavit,  stating  that  the  lands 
arc  holden  of  a  manor,  which  is  ancient  demesne  ;  that  there  is  a  court  of 
ancient  demesne,  regularly  holden ;  and  that  the  lessor  of  the 
[  *631  ]  ^plaintiff  has  a  freehold  interest.(«)  This  plea  may  be  filed  de 
bene  esse,  in  the  King's  Bench,  within  the  time  allowed  for  plead- 
ing in  abatement. (&) 

In  transitory  actions,  it  is  said,(c(?)  the  defendant  cannot  plead  to  the 
jurisdiction  of  the  court,  unless  the  plaintifi"  by  his  declaration  show,  that 
the  cause  of  action  accrued  within  a  county  palatine  :  and  even  then,  it  must 
be  averred  in  the  plea,  either  that  the  defendant  dwells  in  the  county  pala- 
tine, or  that  he  had  sufficient  goods  and  chattels  there,  by  which  he  may  be 
attached  ;  otherwise  the  plea  cannot  be  allowed,  lest  a  failure  of  justice 
should  ensue  •,{dd)  and  the  defendant  cannot  in  such  case  demui-  to  thedecla- 
ration,(et')  or  move  in  arrest  of  judgment.(^) 


Of  a  nature  very  similar  to  pleading  to  the  jm'isdiction  of  the  court,  is 
claiming  conusance  ;{f/g)  or  praying  that  the  cause  may  be  determined  be- 
fore an  inferior  jurisdiction :  concerning  which,  it  will  be  proper  to  con- 
sider, the  several  sorts  of  inferior  jurisdictions  ;  in  what  cases  conusance 
may  be  claimed  ;  and  the  time  and  manner  of  claiming  it. 

There  are  three  sorts  of  inferior  jurisdictions.(7i7i)  The  first  is  to  hold 
j)leas,  which  is  merely  a  concurrent  jurisdiction  ;  and  can  neither  be  claimed 
nor  pleaded.  The  second  is  a  general  conusance  of  pleas  ;  which  being 
intended  for  the  benefit  of  the  lord,  may  be  claimed  by  him,  though  it  can- 
not be  pleaded  by  the  defendant.  The  third  is  a  conusance  of  pleas,  with 
exclusive  words  ;  as  where  the  king  grants  to  a  city,  that  the  inhabitants 
shall  be  sued  within  the  city,  aiid  not  elseivhere :  This  being  an  exempt 
jurisdiction,  may  be  either  claimed  or  pleaded.(z7)     Hence  it  is  a  general 

(c)  Heme,  T,  351.  Rastal,  101.  Hans.  103.  Thomp.  2.  3  Inst.  CI.  8,  9.  1  Salk.  56. 
2  Ld.  Raym.  1418.  This  plea  must  be  pleaded  within  the  first  four  days  of  the  term.  8 
Durnf.  &  East,  474. 

{d)  1  Wils.  193.  (e)  1  Salk.  80.     1  Show.  191,  S.  C. 

(/)  Rastal,  419.     Heme,  7.     3  Inst.  CI.  14. 

(g)  4  Inst.  224.  Jenk.  190.  Keilw.  88,  &c.,  S.  C.  3  Inst.  CI.  7;  but  see  Yelv.  12,  13. 
Carth.  109. 

(A)  Bro.  Abr.  tit.  Conusance,  52.  1  Blac.  Rep.  197.  And  as  to  pleas  to  the  jurisdiction, 
in  courts  of  equity,  see  Beam.  PI.  Eq.  57,  &c.,  252,  53,  54. 

(i)  1  Barnard.  K.  B.  7,  352,  365.   Andr.  368.    2  Str.  1120.     1  Blac.  Rep.  197.    3  Wils.  51. 

(a)  2  Bur.  1046;  and  see  3  Wils.  51.  [b)   10  East,  523. 

(cc)  4  Inst.  212,  13.  1  Sid.  103.  Carth.  109.  Gilb.  C.  P.  191.  1  Bac.  Abr.  560;  and 
see  3  East,  128.  {dd)  Carth.  355. 

{ee)  Id.  354.  5  Mod.  144,  S.  C. ;  and  see  further,  as  to  pleas  to  i^i^  jurisdiction,  1  Chit.  PI. 
4  Ed.  380,  &c. 

(ff)  Carth.  11.  Comb.  30,  48,  S.  C. ;  and  see  Comb.  115.  As  to  conusance  in  general,  see 
Gilb.  C.  P.  192,  &c.  Vin.  Abr.  tit.  Conusance.  Com.  Dig.  tit.  Courts,  P.  1  Chit.  PI.  4  Ed. 
361,  &c.     1  Sel.  Pr.  Chap.  VII.  §  1. 

{gg)  Gilb.  C.  P.  191.     1  Bac.  Abr.  560.     1  Rol.  Abr.  489. 

{hh)  Palm.  456.     Hardr.  509.    2  Ld.  Raym.  836.    1  Salk.  148.    3  Salk.  79.    12  Mod.  643, 
S.  C.     Id.  666.     10  Mod.  126.     Vin  Abr.  tit.  Conusance,  589. 
{ii)  Bro.  Abr.  tit.  Conusance,  52.     1  Blac.  Rep.  197. 


OF  CLAIMING  CONUSANCE.  631 

rule,  that  whenever  the  defendant  can  plead  to  the  jurisdiction  of  the  court, 
there  the  lord  of  tlie  franchise  may  claim  conusance,  but  not  vicever»d.(k) 

The  privilege  of  claiming  conusance  is  confined  to  courts  of  record, (/)  and 
local  actions  ;(m)  except  where  the  defendant  is  a  member  of  the  university 
of  Oxford  ov  Oamhrihji'  :[n)  And  it  is  also  confined  to  such  actions  as  were 
in  esse  at  the  time  of  the  grant  ;(<>)  and  does  not  exten<l  to  those  created 
since,  by  act  of  parliament,  except  where  a  common  law  action 
is  *givcn  against  a  person  by  another  name,  as  dibt  against  an  ad-  [  *G32  ] 
ministrator.(a)  Neither  shall  this  privilege  be  allowed,  where 
the  franchise  cannot  give  a  remedy,(/')  and  there  would  consequently  be  a 
failure  of  justice  ;((•)  as  in  replevin, (t?)  quarc  i)np<-iUt,(e)  waste,  kc.  or  where 
tlic  lord  is  a  party,  and  the  plea  is  to  be  holden  before  him.self,(^/')  or  the 
defendant  is  a  stranger,  who  hatli  notliing  within  the  franchise ;(//)  or 
lastly,  where  the  plaintift'  is  a  privileged  person,  as  an  attorney  or  officer 
of  the  court.(//)  But  conusance  may  be  claimed  by  a  defendant  in  custody 
of  the  marshal. (i)  And,  in  a  modern  case,  it  was  allowed  in  the  King's 
Bench,  on  a  claim  made  by  the  Vice  (JhanceUor  of  the  University  of  Oxford^ 
during  tlic  vacancy  of  the  office  of  Chancellor  by  deatli,  on  behalf  of  the 
university. (M)  In  the  Exchequer  of  Pleas,  amemljer  of  either  university 
cannot  set  up  his  privilege,  against  that  of  an  officer  or  accountant,  or 
against  any  person  suing  as  a  debtor  ;  this  court  not  being  mentioned  in  their 
charter  of  exemption. (/^) 

Conusance  of  Pleas  must  be  claimed  after  appearance,(?nm)  and  before 
imparlance,(7i?«)  in  the  first  instance,  or  on  the  very  first  day  the  party  hath 
in  court ;  even  upon  the  return  day  of  the  writ,  if  the  cause  of  action  appear 
therein  :  if  not,  then  upon  the  first  day  given  upon  the  declaration. (oo)  As 
for  instance,  in  trespass  by  original,  Avhcre  place  is  named,  or  pwcipe 
quod  reddat,  where  land  is  demanded,  conusance  must  be  claimed  on  the 
return  day  of  the  writ ;  because,  in  these  cases,  the  writ  states  where  the 
cause  of  action  arises. (jo)  But  in  debt  or  detinue  it  is  otherwise;  for  it 
does  not  appear,  till  the  plaintiff  lias  counted,  wlierc  the  contract  or  obli- 
gation was  made ;  and  therefore  till  then,  the  lord  need  not  make  his 
claim. (r/)  So  in  replevin.,  the  place  where  the  cattle  were  taken  does  not 
appear,  till  the  plaintiff  has  counted,  if  it  be  between  strangers :  but  if  a 
replevin  be  sued  against  the  lord  of  the  franchise  himself,  there  the  lord's 
claim  would  come  too  late  after  the  count;  because  tlie  law  intends  that  he 
knew  the  place  of  taking,  being  himself  a  party,  and  so,  l)y  not  demanding 
his  privilege  on  the  writ,  he  gives  the  court  seisin  of  the  cause  :  for  the  lord 
must  use  no  delay. (r) 

(k)  Gilb.  C.  P.  193.  [I)  2  Inst.  140. 

hn)  4  Inst.  213.   1  Sid.  103.  In)  Gilh.  C.  P.  193.   1  Bnc.  Abr.  500. 

(o)  14  Hen.  IV.  20,  b.  {a)  14  Hen.  IV.  b.  22.    Ed.  IV.  22. 

{b)  2  Vent.  3G3.  (c)  Hardr.  507. 

(d)  2  Inst.  140.  (e)  Dalis,  12. 

(/•)  8  Hen.  VI.  18,  10,  20,  21.  Ilob.  P7.  (g)  22  Ass.  83.  1  Rol.  Abr.  493. 

(X)  3  Leon.  149.  Lit.  Rep.  304.  Willcs,  233.  Bnrnes,,346.  Prac.  Reg.  96.  Vin.  Abr.  tit. 
Conusance,  590,  S.  C.     Id.  M2.     Rcndl.  233,  contra. 

(i)   Uro.  Abr.  tit.  Conusance,  50.    1  Snlk.    2  Gilb.  C.  P.  195. 

(H-)   11  East,  543,  and  see  12  East,  12.  (//)  Ilardr.  188.  AnU,  81,  2. 

(mm)  Comb.  319. 

(nn)  1  Sid.  103.  1  Show.  352.  10  Mod.  125.  Willes,  233.  Barnes,  340.  Prac.  Reg.  96. 
Vin.  Abr.  tit.  Conusance,  590,  S.  C.  Id.  592.  1  Barnard,  K.  B.  60.  2  Wils.  411.  Gilb.  C. 
P.  196.     Antr,  4G3. 

(oo)  2  Wils.  413.  {p)  5  Bur.  2823. 

(q)  10  Mod.  127.  (r)  5  Bur.  2823. 


(532  OF  CLAIMING  CONUSANCE. 

In  a  modcru  case,(s)  conusance  of  a  plea  of  trespass,  sued  against  a  resi- 
dent member  of  the  university  of  Cambridge,  for  a  cause  of  action  verified 

by  affidavit  to  have  arisen  within  the  town  and  suburbs  of  *  Cam- 
[  *633  ]  bridge,   over  which  the   university  court  has  jurisdiction,  was 

allowed  in  the  King's  Bench ;  upon  the  claim  of  the  vice-chan- 
cellor, on  behalf  of  the  chancellor,  master  and  fellows  of  the  university, 
entered  on  the  roll  in  due  form,  setting  out  their  jurisdiction  under  charters 
confirmed  by  act  of  parliament,  and  averring  the  cause  of  action  to  have 
arisen  within  such  jurisdiction  :  although  it  was  objected  that  the  claim 
was  preferred  too  early,  on  the  mere  issuing  of  a  writ  of  latitat  against  the 
privileged  member,  to  answer  in  a  plea  of  trespass,  before  declaration ;  by 
which  it  could  not  appear  where  the  cause  of  action  arose,  nor  consequently 
that  it  arose  w^ithin  the  town  and  suburbs  of  Cambridge,  to  which  the  juris- 
diction of  the  university  court  in  personal  actions  is  confined ;  and  that  it 
was  not  sufiicient  to  supply  that  fact  by  afiidavit :  But  the  court  held,  that 
it  was  the  usual  course  to  support  claims  of  conusance  by  affidavits  verifying 
the  necessary  facts,  which  it  was  competent  to  the  plaintifi"  to  deny  in  the 
same  mode ;  and  that  the  difficulty  was  not  greater  before,  than  after  decla- 
ration ;  and  the  sooner  the  claim,  if  well  founded,  was  preferred,  the  better 
for  the  plaintiff.  In  the  same  case  it  was  objected,  that  if  the  claim  might 
be  preferred  upon  the  latitat  before  declaration,  then  it  ought  to  be  pre- 
ferred in  the  first  itistance,  after  the  return  of  the  latitat,  namely,  upon 
the  day  of  appearance  given  by  the  rule  of  court,  that  is,  in  eigJit  days :  but 
the  court  held,  that  the  first  instance  after  the  return  day  of  the  writ,  which 
is  the  first  step  of  the  plaintifi"  entered  on  the  record,  continued  till  the  de- 
claration filed,  which  is  the  next  step  taken  by  the  plaintiff  on  the  record ; 
within  which  time  the  claim  was  made.  Another  objection  was,  that  it 
appeared  by  the  roll,  on  which  the  power  of  attorney  to  claim  conusance 
and  the  claim  itself  were  made,  that  the  claim  was  made  on  the  return 
day  of  the  writ,  that  is,  on  the  fifteenth  of  November,  before  the  power  of 
attorney  to  claim  it  was  executed,  which  bore  date  on  the  27th :  But  the 
court  took  notice  that  the  claim  was  in  fact  made  on  the  28th,  in  the  letter 
missive  and  significatory  of  the  vice-chancellor  to  them  ;  although,  in  making 
up  the  roll,  it  was  entered  by  their  officer  as  on  the  return  day  of  the  writ 
by  relation,  no  subsequent  day  in  court  being  then  given  on  the  record. 

As  to  the  manner  of  making  the  claim,  it  is  holden,  that  conusance  may 
be  claimed  by  the  lord  of  the  franchise  in  person,  or  by  his  bailiff  or  attor- 
ney :(a)  If  it  be  claimed  by  attorney,  the  warrant  of  attorney  must  be 
produced  in  court,  and  filed. (6)  The  grant  of  conusance  must  also  be  pro- 
duced,(c?)  or  an  exemplification  of  it  under  the  great  seal  lid)  and  if  the  grant 
was  before  time  of  memory,  an  allowance  must  be  shown  in  the  King's 
Bench,  or  before  justices  in  Eyre.[e)   Upon  a  claim  made  by  the  university 

of  Oxford,  or  Cambridge,^/)  there  must  be  likewise,  in  addition 
[  *634  ]  *to  the  grant,  an  exemplification  of  the  statute  confirming  it,(aa) 

together  with  an  affidavit  of  the  defendant's  residence  ;{bb)  and, 


(«)   12  East,  12,  (a)  Bro.  Abr.  tit.  Conusance,  50.    12  Mod.  644,  666. 

(b)  Palm.  456.     1  Sid.  103.     1  Lev.  89,  and  see  12  East,  12. 

(c)  12  Mod.  644.     1  Blac.  Rep.  454.  (d)  5  Bur.  2820. 
(e)  Keilw.  189,  90.     1  Sid.  103.     1  Salk.  183.    1  Ld.  Raym.  427,  8;  4T5,  S.  C.    Gilb.  C. 

.  195,  but  see  Bro.  Abr.  tit.  Conusance,  51. 

m  10  Mod.  126.  1  Blac.  Rep.  454.  12  East,  12.  (aa)  13  Eliz.  c.  29. 

(bb)  I  Barnard.  K.  B.  49,  65.  2  Str.  810.  2  Wils.  311.    1  Blac.  Rep.  454.  5  Bur.  2820.  12 


OF  PLEAS  IN  ABATEMENT.  634 

■where  the  claim  is  made  by  the  university  of  Cambridge^  that  the  cause  of 
action,  if  any,  arose  -witliin  the  lil)erty  of  the  university,  viz.  "within  the 
town  and  suburbs  of  the  town  of  Ciunbrid(jc.{c)  The  chiim  itself  must  bo 
entered  upon  a  roll ;((/)  and,  after  stating  the  several  proceedings  that  have 
been  had  in  the  cause,  must  set  forth  the  grounds  upon  ■\vliicli  it  is  made, 
with  great  precision. (<')  It  may  be  demurred  to,  or  the  facts  therein  aHeged 
may  be  controverted  by  pleading.{/)  If  allowed,  a  day  is  given  upon  the 
roll,  for  the  lord  of  the  franchise  to  hold  his  court ;  and  the  parties  are  com- 
manded to  be  there  on  that  day.((/)  But  the  record  still  remains  in  the  court 
above  ;  and  a  transcript  only  is  sent  down  to  the  court  below  :(//)  so  that  if 
justice  be  not  done  there,  as  if  the  defendant  be  a  stranger,  and  has  nothing 
within  the  franchise  by  wliieh  he  can  be  summoned,  or  if  tiie  judge  misbe- 
have himself,  tfcc.  the  plaintiff  shall  have  a  re-summons, (/)  upon  the  record 
in  the  court  above  ;  and  if  a  re-summons  issue,  upon  faihire  of  riglit  in  a 
franchise,  the  lord  of  the  franchise  shall  never  afterwards  have  conusance  of 
that  plea.(A;) 

Picas  in  abatement  to  the  person  of  the  jtlaintiff,  are  either  that  he  is  not 
in  existence,(  being  only  a  fictitious  person,(Z)  or  dead,)(7«)  or  else  that  being 
in  existence,  he  is  an  alien  enemy,(n)  attainted  of  treason  or  felon3',(o)  out- 
lawed upon  mesne  or  final  process, (j;)  under  a  p7'ci'munirc,{(ji)  excomniuni- 
cated,(>')  or  convicted  of  popish  recusancy. (s)  When  the  cause  of  action  is 
forfeited,  as  by  the  plaintift"s  being  an  alien  cncmy,(^)  attainted,(u)  or  out- 
lawed for  fclony,(3;)  there  his  disability  may  be  pleaded  in  abatement,  or  in 
bar,  but  otherwise  it  can  only  be  pleaded  in  abatement. 

*Pleas  in  abatement  to  the  person  of  the  defendant  are,  that  he 
is  privileged,  as  an  attorney  or  officer  of  the  court  ;(a)  under  the  [  *G'jO  ] 
king's  protection  :(5)  or  an  infant,(6'(')  when  sued  as  heir  on  the 
obligation  of  his  ancestor,  &c. ;  in  Avhich  hitter  case,  the  parol  shall  demur, 
or  proceedings  be  stayed,  till  he  come  of  age.  There  are  two  ways  of 
pleading  an  attorney's  privilege,  first,  with  a  profert  of  a  writ  of  privilege, 
or  of  an  exemplification  of  the  record  of  his  admission;  upon  which  the 
plaintiff'  must  reply  mil  tiel  record,  and  cannot  otherwise  deny  the  defen- 
dant's being  an  attorney  ;  secondly,  as  a  mere  matter  of  fact,  without  a  pro- 
fert  ;{dd)  and  then  a  certiorari  shall  be  awarded,  to  certify  whether  he  be 

East,  12  ;  but  see  15  East,  634,  where  an  afiiJavit  of  the  residence  of  a  common  servant, 
called  Marshal  of  the  University,  for  the  execution  of  local  duties  therein,  was  dispensed  with. 
12  East,  12.  (</)  Comb.  319.   1  JJarnard.  K.  H.  05.   2  Str.  810. 

For  the  form  of  a  claim  of  conusance  by  the  university  of  Oxford,  see  Willcs,  233.  (a.) 
T'ils.  40G,  and  for  a  similar  claim  by  the  university  of  Cambridge,  see  12  East,  12. 

(/)   2  Wils.  40a,  10.    Comb.  319. 

\g)  2  Ld.  Raym.  83G,  7.     12  Mod.  C44.     3  Salk.  79,  S.  C.  {h)  Id.  Jcnk.  31. 

(i)  Id.  Ilardr.  407,  but  sec  Yin.  Abr.  tit.  Conmance,  589.    10  Mod.  127. 

\k)  Jenk.  34.  (/)  Ast.  Ent.  10.    3  Inst.  CI.  89. 

(»i)  Ast.  Ent.  8.  3  Inst.  CI.  75,  &c.  \n)  1  Lutw.  34.  3  Inst.  CI.  IG. 

(o)  Carth.  137,  8. 

(/))  1  Lutw.  G,  1529.  3  Inst.  CI.  23,  &c.  1  East,  G34.  And  as  to  the  plea  oi  outlawry,  in 
courts  of  Equity,  see  Beam.  PI.  Eq.  100,  &c. ;  and  as  to  the  plea  of  fzcommuniration,  Id,  106, 
&c.  ;  oi  attainder.  Id.  109,  &c. ;  of  alien  enemij,  Id.  112,  <fec.  ;  of  in/anri/ of  phiintifl".  /(/.  115, 
IG  ;  of  coverture  of  plaintiff,  /(/.  IIG,  17;  and  of  lankrujitcy,  or  insolvency  of  plaintiff,  Id. 
118,  &c. 

(q)  Co.  Lit.  129,  b.  (r)  1  Lutw.  17.   3  Inst.  CI.  18.  (»)  3  Inst.  CI.  20.  1  Str.  520. 

h)  Co.  Lit.  129,  b.    6  Durnf.  &  East,  23,  35.  (u)  Bro.  V.  M.  252. 

^x)  Co.  Lit.  128,    b.  Gilb.  C.  P.  200.  (a)  1  Lutw.  G39.  (b)  2  Bro.  Ent.  106. 

(cc)  Rastal,  360,  3G2,  379,  Bro.  Red.  195.  And  as  to  pleas  to  the  per.«on  of  the  defendant, 
in  courts  of  Equity,  see  Beam.  PI.  Eq.  129,  &c.  {dd)  Lil.  Ent.  3. 


Q35  OF  PLEAS  IN  ABATEMENT. 

an  attorney  or  not.((')  And  where  an  attorney  of  the  King's  Bench,  in 
pleading  his  privilege  to  an  action  by  original,  stated  the  custom  of  the 
court  to  be,  that  no  attorney  ought  to  be  compelled  to  answer  anoriginal 
writ,  unless  first  forejudged  from  his  office,  &c.  (which  is  not  the  custom  of 
this  court,  but  of  the  Common  Pleas,)  the  court  nevertheless  held  the  plea 
to  be  sufficient ;  as  they  will  take  notice  of  the  custom,  that  an  attorney  of 
this  court  can  only  be  sued  by  5^7/,  and  what  is  stated  as  to  forejudging  may 
be  rejected  as  surplusage. (/) 

Under  the  head  of  pleas  to  the  person,  may  also  be  included  coverture^ 
in  the  plaintiff, ((/)  or  defendant  ;(/i)  or  that  the  plaintiffs  or  defendants, 
suing  or  being  sued  as  husband  and  Avife,  are  not  married  :{i)  or  any  other 
plea  for  want  of  proper  parties,  as  that  there  is  an  executor,(A;)  administra- 
tor,(^)  or  other  person, (m)  not  named,  who  ought  to  be  made  a  co-plaintiff 
or  co-defendant.  We  have  already  seen,  that  if  an  action  be  brought  for  a 
tort,  by  one  of  several  joint  tenants  or  tenants  in  common,(w)  or  against 
one  of  several  partners  upon  a  joint  contract,{o)  the  defendant  must  plead 
in  abatement,  and  cannot  otherwise  take  advantage  of  the  objection. (p)  And 
he  may  plead  a  secret  partnership  in  abatement,  though  the  plaintiff  had  no 
means  of  knowing  of  the  partnership,  and  could  not  have  proved  it,  had  he 
joined  the  secret  partner  in  the  action. ((^)  It  should  also  be  observed,  that  if 
an  action  be  brought  against  a  carrier,  in  case  on  the  custom  of  the 
[  *G36  ]  realm,  for  not  safely  carrying  goods,  the  defendant  may  plead  *in 
abatement,  that  his  partners  ought  also  to  have  been  sued  :(a)  Or, 
if  an  action  of  debt  be  brought  on  the  statute  9  Ann.  c.  14,  to  recover  back 
money  won  at  play,  he  may  plead  in  abatement,  that  the  money  was  due 
from  others  not  named,  as  well  as  from  himself.  (6)  In  these  cases,  the  de- 
fendant, if  required,  must  deliver  to  the  plaintiff  the  places  of  abode  and 
additions  of  the  parties  jointly  liable  ;  or  in  default  thereof,  the  court  of 
King's  Bench,  we  have  seen,(c)  will  set  aside  the  plea.  And  on  a  plea  in 
abatement  of  the  nonjoinder  of  A.  B.  as  a  defendant,  his  declarations  made 
before  action  brought,  are  evidence  in  support  of  the  plea.  1  Moody  &  M. 
45.  But  in  an  action  on  the  case  against  a  common  carrier,  for  not  safely 
carrying  a  passenger,  the  defendant  cannot  plead  in  abatement,  the  non- 
joinder of  a  co-proprietor. (f?(^)  In  a  plea  in  abatement,  that  another  person 
ought  to  have  been  sued  with  the  defendant,  it  is  not  necessary  to  lay  a 

(e)  1  Ld.  Raym.  336.  T  Mod.  106.  2  Salk.  545.  6  Mod.  305.  2  Ld.  Raym.  1172.  1  Str. 
•76,"  532. 

(/)  9  East,  424. 

{g)  Ast.  Ent.  9.  3  Inst.  CI.  70.  If  the  plaintiff  take  husband,  after  suing  out  the  writ  and 
before  declaration,  the  defendant  cannot  give  the  coverture  in  evidence  under  the  general 
issue,  but  must  plead  it  in  abatement.  6  Durnf  k  East,  265.  And  as  to  the  plea  of 
coverture  of  the  plaintiff,  in  courts  of  Equitv,  see  Beam.  PI.  Eq.  116,  17. 

(A)   1  Lutw.  23.    3  Inst.  CI.  71.  '  {i)  3  Inst.  CI.  69. 

(^-)  Id.  51.    Rastal,  325,  a.  {I)  3  Inst.  CI.  53.  Rastal,  324. 

(m)  3  Inst.  CI.  53,  119.     1  Lutw.  696,  and  see  1  East,  634. 

(n)  Ante,  9,  and  see  1  Salk.  32,  290.    2  Str,  820. 

(o)  Ante,  6,  but  see  2  Mod.  279.  3  Mod.  321.  2  Salk.  440.  Show.  29,  101.  3  Lev.  258. 
Carth.  58,  S.  C.    Gilb.  Evid.  189. 

{p)  1  Wms.  Saund.  5  Ed.  291,  b.  (4.) 

[q)  5  Taunt.  609.  1  Marsh.  246,  S.  C,  but  see  Abbott  on  Shipping,  5  Ed.  76.  1  Stark. 
Ni.  Pri.  338.  3  Stark.  Ni.  Pri.  8.     1  Moody  &  M.  88,  contra. 

(«)  6  Durnf.  &  East,  369.  2  New  Rep.  C.  P.  365,  but  see  5  Durnf.  &  East.  649.  2  Chit. 
Rep.  1.    6  Moore,  141.    3  Brod.  &  Bing.  54,  S.  C.   Ante,  9. 

{b)  7  Durnf.  &  East,  257.  (c)  A7ite,  534. 

(dd)  2  Chit.  Rep.  1,  and  see  5  Durnf.  &  East,  649.  6  Moore,  141.  3  Brod.  &  Bing.  54. 
9  Price,  408,  S.  C. 


OF  PLEAS  IN  ABATEMENT.  036 

venue  :  And  if  it  be  pleaded  tliat  sueli  other  person  is  alive,  to  wit,  in  Spain, 
it  will  be  considered  as  jtleaded  witliout  any  venue. (c)  And,  by  the  statute 
9  Geo.  IV.  c.  14,  §  2,  "  if  any  defendant  or  defendants,  in  any  action  on 
any  simple  contract,  shall  plead  any  matter  in  aliatement,  to  the  efi'ect  that 
any  other  person  or  persons  ou^ht  to  be  jointly  sued,  and  issue  be  joined  on 
such  plea,  and  it  .shall  appear  at  the  trial,  that  the  action  could  not,  by  rea- 
son of  the  therein  recited  acts  or  that  act,  or  of  either  of  them,  be  maintained 
against  the  other  person  or  persons  named  in  such  ]»lea,  or  any  of  them,  the 
issue  joined  on  such  plea  shall  be  found  against  the  party  pleading  the 
same." 

Pleas  in  abatement  to  the  count  can  only  be  jdeaded  in  actions  ])y  origi- 
nal writ ;  and  are  for  some  uncertainty,  repugnancy,  or  want  of  form,{/) 
not  appearing  on  the  face  of  the  writ,  or  else  for  some  variance  there- 
from.!^) To  the  writ,  they  are  either  for  matter  apparent  on  the  fact  of  it, 
or  for  matter  (Ji'hors,{h)  existing  at  the  time  of  suing  out  the  writ,  or  arising 
afterwards.(/)  To  tho  form  of  the  writ,  they  are  for  some  apparent  uncer- 
tainty, repugnancy,  or  want  of  form  :{k)  varianre{l)  from  the  record,  spq- 
cialty,  &c.  ;  misnomerirn)  of  the  plaintiff  or  defendant,(7i)  or  of  one  of 
several  plaintiffs  ;(o)  or,  in  actions  by  original  writ,  the  omission  or  mistake 
of  the  defendant's  add  it  ion, {p)  that  is,  of  his  estate,  degree,  mystery,  or 
place  of  abode.  But  the  plaintiff  may  sue  the  defendant,  cither  by  the  addi- 
tion of  his  degree  or  mystery  ;(ry)  and  may  name  him  of  the  place  where  he 
lately  dwelt  :(r)  And  as  a  plea  of  the  statute  of  additions  is  bad,  without 
oyer  of  the  original  writ,  which  by  the  practice  of  the  court  is  not  grantable, 
it  seems  that  such  a  plea  cannot  now  be  pleaded  ;  and  accordingly,  in  seve- 
ral recent  instances,  the  courts  have  ordered  it  to  be  set  aside. («)  And,  in 
general,  it  may  be  remarked,  that  since  the  courts  have  refused  to  allow 
oyer  of  the  original  Avrit,  pleas  in  abatement  thereto,  for  objections 
apparent  on  the  face  of  it,  or  variance  between  the  writ  and  *the  [  *637  ] 
count,  have  fallen  into  disuse  ;  and  it  is  now  usual  to  plead  in 
abatement  for  matters  extrinsic  only,  such  as  privilege,  coverture  in  the 
plaintiff  or  defendant  at  the  time  of  bringing  the  action,  non-joinder  of  a 
necessary  party  to  suit,  misnomer  of  the  plaintiff  or  defendant,  or  another 
action  depending  for  the  same  cause. 

Pleas  in  abatement  to  the  action  of  the  writ  are,  that  the  action  is  mis- 
conceived; (a)  or  was  prematurely  brought,  before  the  cause  of  it  arose  ;{b) 
or  that  there  is  another  action  depending  for  the  same  cause. (c)     It  is  said, 

(e)  1  Durnf.  &  East,  243.     1  Wms.  Saund.  5  Ed.  a.  (1).     Ante,  428,  (A). 

(/)  3  Inst.  CI.  G2.  (ff)  Reg.  PI.  277,  78. 

h)  Gilb.  C.  P.  51.  («)  Com.  Dig.  tit.  Abatement,  (H.) 

(k)   1  Lutw.  25.     3  Inst.  01.  49,  54,  GG,  &c. 

(7)  3  Inst.  CI.  43,  &c. 

(m)  1  Lutw.  10.  Ast.  Ent.  1.  3  Inst.  CL  79,  &c. ;  and  see  1  Chit.  Rep.  512,  13,  (a).  705, 
in  notis.     Ante,  447,  &c. 

{n)  Append.  Chap.  XXVI.  §  1,  &c.  For  a  replication  that  the  defendant  wa.q  called  as 
well  by  one  name  as  the  other,  see  Id.  ^  G;  and  for  the  evidence  on  this  issue,  see  3  Maule 
&  Sel.  453. 

(o)  6  Maule  &  Sel.  45. 

\p)  Stat.  1  Hen.  V.  c.  5.     3  Inst.  CI.  92. 

\q)  8  Mod.  51,  52.     1  Str.  556.     2  Str.  81G.     2  Ld.  Raym.  1541,  S.  C. 

(r)   2  Ktr.  924. 

(s)  3  Bos.  &  Pul.  395.     7  East,  383.     Ante,  564.  (a)  3  Inst.  CI.  120,  &c. 

(b)  1  Lutw.  8,  13.     3  Inst.  CI.  56.     Fort.  334. 

(c)  1  Lutw.  33.  3  Inst.  CI.  III.  And  as  to  the  plea  of  another  suit  depending,  in  courts 
of  equity,  see  Beam.  PI.  Eq.  134,  &c.,  140,  &c. 

Vol.  I.— 40 


(J3Y  OF  PLEAS  IN  ABATEMENT. 

in  one  case,((7)  that  the  pendency  of  a  prior  action  for  the  same  cause  may 
be  pleaded  in  bar  to  a  second  action ;  but  it  cannot  be  pleaded  in  abatement. 
This,  however,  must  be  understood  with  reference  to  the  particular  case  of  a 
popular  action,  and  not  as  a  general  rule  applicable  to  all  cases. 

The  general  requisites  of  a  plea  in  abatement  are,  that  it  should  be  cer- 
tain,(f)  give  the  plaintiff  a  better  \vrit,(/)  and  have  an  apt  and  proper 
beginning  and  conclusion  :  For  it  is  the  1)eginning  and  conclusion  that  make 
the  plea.(//)  Pleas  to  the  jurisdiction  of  the  court,  or  in  abatement,  cannot 
be  pleaded  and  after  making  a  full  defence  ;(Ji)  the  former  must  be  pleaded 
inpo'son,  but  the  latter  may  be  pleaded  by  attorney.{i)  And  they  are  both 
usually  begun,  by  defending  the  ivrong  (or  force)  and  injury,  ivJien,  ^e. 
which  is  considered  only  as  making  //a//"  defence  : (A;)  for  the  ^c.  implies 
only  half  defence,  in  cases  where  such  defence  is  to  be  made,  but  will  be 
understood  as  VifuU  defence,  if  that  be  necessary.(Z)  When  the  defendant 
pleads  to  the  wi-it,  for  matter  apparent,  he  should  begin  his  plea  by  praying 
judgment  of  the  writ,  and  conclude  it  in  the  same  manner  ;(m)  but  when 
the  plea  is  for  matter  dehors,  as  joint-tenancy,  non-tenure,  or  the  like,  there 
he  should  conclude  it  only  in  this  manner. (««)  A  plea  of  misnomer  of  the 
defendant  is  bad,  which  begins  thus:  "And  the  said  Richard,  sued  by  the 
name  oi  Robert,  kc.''{n)  or  thus:  "And  he  against  whom  the  plaintiff  hath 
exhibited  his  bill,  by  the  name  of  J.  S.  &c.  ;"(o)  and  it  must  also 
£  *638  ]  set  out  the  defendant's  surnamc.{p)  In  pleading  *to  the  juris- 
diction, the  defendant  should  conclude  his  plea  by  praying  judg- 
ment if  the  court  will  take  further  cognizance  of  the  suit.[a)  But  the 
plea  of  an  attorney,  to  an  action  brought  against  him  by  bill  in  the  King's 
Bench,  as  a  common  person,  stating  his  privilege  not  to  be  compelled  to 
answer  any  bill  exhibited  against  him  in  custody  of  the  marshal,  &c.  and 
concluding  that  the  court  would  not  take  further  cognizance  of  the  action 
aforesaid  against  him,  instead  of  praying  judgment  of  the  bill,  and  that 
the  same  might  be  quashed,  will  not  be  taken  as  a  plea  to  the  jurisdiction, 
but  only  as  objecting  to  the  court's  taking  cognizance  of  the  action  against 
one  of  its  attorneys,  in  that  form ;  and  therefore  the  court  will  adjudge  the 
bill  to  be  quashed.(5)  In  pleading  to  the  person,  the  conclusion  is,  whether 
the  defendant  ought  to  ansiver,  or  the  plaintiff  to  he  ansivered  ;{c)  or  if 
excommunication,  or  other  temporary  disability,  be  pleaded,  that  the  plaijit 

(d)  Say.  Eep.  216.  (e)  Co.  Lit.  303,  a.     Cro.  Jac.  82.     3  Lev.  67. 

(/)  Brownl.  139.  Turtle  r.  Lady  Worsley,  M.  29  Geo.  III.  K.  B.  6  Maule  &  Sel.  88  ;  and 
see  Steph.  PI.  435,  36. 

(ff)  1  Sid.  189.  1  Vent.  136.  Comb.  106,  1.  1  Show.  4,  S.  C.  1  Ld.  Raym.  593.  1 
Salk.  210.  S.  C.  12  Mod.  525.  10  Mod.  112,  192,  210.  Willes,  479.  2  Wms.  Saund.  5 
Ed.  209,  6,  c,  d.     Steph.  PI.  392,  &c.     6  Taunt.  587.    2  Marsh.  299,  S.  C. 

{h)  Steph.  PI.  436. 

{i)  Gilb.  C.  P.  187 ;  and  see  2  Blac.  Rep.  1094.  2  Wms.  Saund.  5  Ed.  209,  h.  1  Chit. 
PL  4  Ed.  368,  &c. 

(/f)  Lit.  I  195.  Co.  Lit.  127,  b.  Hardr.  365.  1  Lutw.  7.  Willes,  40.  Gilb.  C.  P.  188. 
Whealley  v.  Cudmerson,  M.  15  Geo.  IL  C.  P.  Thotmon  v.  Sfockdale,  H.  23  Geo.  IIL  K.  B. 
cited  in  Willes,  41,  (c).     8  Durnf.  &  East,  631.     3  Bos.  &  Pul.  9,  (a). 

(Z)  8  Durnf.  &  East,  633.  3  Bos.  &  Pul.  9,  (a).  2  Wms.  Saund.  5  Ed.  209,  b.  Steph. 
PL  430,  &c. 

(m)  Moor,  30.  Dalis.  33,  S.  C.  Reg.  PL  273.  2  Wms.  Saund.  5  Ed.  209,  (1).  1  Lutw. 
11.     12  Mod.  525. 

(n)  5  Durnf.  &  East,  487. 

(o)  8  Durnf.  &  East,  515.     5  Taunt.  652,  653,  (a) ;  and  see  2  Wms.  Saund.  5  Ed.  209,  a. 

(p)  5  Taunt.  652. 

(a)  Latch,  178.     2  Wms.  Saund.  5  Ed.  209,  e.  (b)   12  East,  544. 

(c)  Latch,  178.     Lit.  §  195,  &c. 


OF  PLEAS  IX  ABATEMENT.  G38 

may  remain  without  day^  until^  >S'C-{'l)  In  pleading  to  the  writ  or 
count,  if  the  action  be  by  ori>/iuaI,  the  plea  .should  conclude,  by  praying 
judgment  of  the  ivrit  or  count,  and  that  the  i<ame  may  be  (juaniied :{ee) 
But  if  tlie  action  be  by  ^>///,  the  i)lea  should  conclude  by  praying  judgment 
of  the  hill  onl}',  and  not  of  the  declaratiou,{f)  or  of  the  writ  and  declara- 
tion founded  thereon ;{(/)  nor  even,  as  it  seems,  of  the  bill  and  dcclara- 
tion.{h)  A  mis-.statement,  in  the  traverse  at  the  conclusion  of  a  plea  of 
mis-noraer,  of  the  name  by  which  the  defendant  is  called  in  the  declara- 
tion,(j)  or  a  prayer  of  judgment  if  the  bill,  and  that  the  same  may  be 
quashed, (/c)  is  ill  on  special  denun-rer.  And  where,  to  a  joint  action  of 
trenpass  against  four  defendants,  one  of  them  ])]eaded  a  misnomer  in  abate- 
ment, and  concluded  by  praying  judgment  of  the  writ,  and  that  the  same 
may  be  ([uashed,  t&c,  the  Court  of  Common  Pleas  held  the  plea  to  be  bad 
on  general  dcmui-rer,  as  the  misnomer  only  operated  to  abate  the  writ  as 
to  the  party  misnamed.  1  Moore  &  P.  20.  It  seems  to  be  a  rule,  tluit 
pleas  in  abatement  arc  not  amendable;  because  they  are  dilatory,  and  do 
not  go  to  the  merits  of  the  action  ;(/)  which  rule  has  been  extended  to 
criminal  cases :(???)  and  the  plaintiff  therefore  need  never  demur  specially 
to  such  pleas,  (w)  But  the  plaintiff  has  been  allowed  to  withdraw  a  demurrer 
thereto,  and  reply. (o) 

Pleas  to  the  jurisdiction  of  the  court,(p)  and  in  abatement,(^)  ought  to  be 
pleaded  before  a  general  imparlance  ;  and  they  must  be  pleaded 
within  *four  days  inelusive[a)  after  the  delivery,  or  filing  and  [  *G80  ] 
notice,  of  the  declaration  ;{b)  unless  the  declaration  be  delivered 
or  filed  after  term,  or  so  late  in  the  term,  that  the  defendant  is  not  bound 
to  plead  to  it  that  term ;  in  both  which  cases,  the  defendant  in  the  King's 
Bench  may,  within  the  ^rst  four  days  inclusive  of  the  next  term,  plead  to 
the  jurisdiction  of  the  court,  or  in  abatement,  as  of  the  preceding  term  :(c) 
But,  in  the  Common  Pleas,  the  defendant  cannot  plead  in  abatement,  within 

(d)  3  Lev.  240.     1  Lutw.  19.     3  Inst.  CI.  18.     1  Str.  521.     2  Wms.  Saund.  5  Ed.  209,  e. 

he)  5  Mod.  132. 

(/)  2  Bos.  &  Pul.  124,  (c.)  2<^lut.  Rep.  539,  S.  C,  and  see  5  Mod.  132,  144.  12  Mod. 
133,  S.  C.    10  .Mod.  192,  210.    2  Wms.  Saund.  5  Ed.  209,  d.  Per  Cur.  E.  25  Geo.  III.  E.xcheii. 

(ff)   1  Barn.  &  Aid.  172. 

(h)  2  Maule  &  Sol.  484,  and  see  2  Chit.  Rep.  539,  (a.) 

(j)   1  Chit.  Rep.  705,  in  nods. 

(k)  3  Diirnf.  &  East,  185.  For  the  manner  of  concluding  a  plea  in  abatement  of  mis- 
nomer, to  an  indictment  for  a  misdemeanor,  see  10  East,  83. 

(I)  Cas.  Pr.  C.  P.  29.    Per  Buller,  J.  E.  22,  Geo.  III.  K.  B. 

(m)  2  Barn.  &  Cres.  871.    4  Dowl.  &  Ryl.  592,  S.  C. 

(n)  I'er  Bai/lei/,  J.  2  Maulc  &  Scl.  485.  (o)  2  Chit.  Rep.  5. 

Ip)  Dyer,  210,  b.  in  marg.  T.  Raym.  34.  1  Keb.  137,  S.  C.  Gilb.  K.  B.  317,  344.  Gilb. 
C.  P.  183,  4 ;  187.  4  Bac.  Abr.  28,  9.  8  Durnf.  &  East,  474.  Steph.  PI.  430  ;  but  see  Dyer, 
210,  b.  i«  marg.  Doc.  I'lac.  234.  Latch,  83.  Cro.  Car.  9.  Sty.  Rep.  90.  Willes,  239.  Vin. 
Abr.  tit.  Conusance,  p.  591,  as  to  the  plea  of  ancient  demesne. 

(q)  2  Keb.  143.  1  Mod.  14.  1  Vent.  184.  1  Lutw.  23.  Stv.  P.  R.  465.  Gilb.  K.  B. 
344.  R.  E.  5  Ann.  (a.)  R.  T.  5  &  G  Geo.  II.  (b.)  K.  B.  1  Str.  523.  2  Chit.  Rep.  5,  (a.)  4 
Dumf.  4;  East,  520.  C  Duraf.  &  East,  3C9.  7  Durnf.  &  East,  447,  (d.)  Barnes,  224,  334. 
Ante,  463. 

(n)  1  Durnf.  &  East,  277.     5  Durnf.  k  East,  210. 

(/>)  11  Mod.  2.  2  Str.  1192.  1  Wils.  23,  S.  C.  2  Str.  1268.  Smith  v.  Wh;/maU,  M.  26 
Geo.  III.  K.  B.  1  Durnf.  &  East,  277,  689.  7  Durnf.  &  East,  298.  11  Ea.9t,  411  ;  and  see 
Gilb.  C.  P.  52.  Pr.  Reg.  3.  Cas.  Pr.  C.  P.  23,  S.  C.  Pr.  Reg.  286.  Cas.  Pr.  C.  P.  63,  S. 
C.  Forrest.  149.  13  Price,  178.  M'Clel.  65,  S.  C  ;  but  see  Sty.  P.  R.  458,  468.  R.  E.  5 
Ann.  (a.)  K.  B.  1  Durnf.  k  East,  278,  9;  from  wiiencc  it  should  seem,  that  formerly  they 
were  allowed  to  be  pleaded,  at  any  time  before  the  rule  for  pleading  had  expired. 

(r)  1  Salic.  367.  Gilb.  K.  B.  344,  5.  Per  niilhr,  J.  E.  22  Geo.  IH.  K.  B.  and  see  3  Barn. 
^  Aid.  259.     1  Chit.  Rep.  704,  S.  C.  Steph.  Pi.  Append,  xxvii.     Ante,  463. 


g39  OF  PLEAS  IN  ABATEMENT. 

the  first  four  days  of  the  next  term,  -without  a  special  imparlance,  which 
may  be  granted  by  the  prothonotaries.((i)  If  such  a  plea  be  pleaded  after 
a  general  imparlance,  the  plaintiff,  we  have  seen,(e)  may  either  sign  judg- 
ment, or  apply  to  the  court  by  motion  to  set  it  aside ;  or  he  may  demur 
thereto,  or  allege  the  imparlance  in  his  replication,  by  way  of  estoppel : 
and  if  it  be  not  delivered,  or  left  in  the  office,  in  due  time,  it  is  not  to  be 
received,  whether  a  rule  to  plead  be  given  or  not.(/)  And  Sunday,  or 
any  other  day  on  which  the  court  does  not  sit,  is  to  be  accounted  as  one  of 
the  four  days,(^)  unless  it  happen  to  be  the  last. (A)  It  is  a  rule  in  the 
King's  Bench,  that  pleas  in  abatement  cannot  be  filed,  before  the  plaintiff 
has  declared,(i)  and  the  defendant  has  appeared  '.{k)  And  if  the  defendant 
plead  in  bar  before  the  bail  are  perfected,  his  plea  may  be  considered  as  a 
nullity,  although  the  bail  afterwards  justify. (^)  So  where  the  plaintiff 
declared  de  bene  esse,  and  the  defendant  pleaded  in  abatement  before  he 
had  put  in  special  bail,  and  the  plaintiff,  treating  his  plea  as  a  nullity, 
signed  interlocutory  judgment,  the  court  held  it  to  be  regular.(»?)  But  in 
a  country  cause,  if  the  defendant  put  in  special  bail  in  time,  he  may  plead 
in  abatement,  though  the  bail  be  not  perfected  till  after  the  four  days,  if 
they  be  ultimately  perfected  within  the  time  allowed  by  the  practice  of  the 
court  :(w)  And  a  similar  practice  has  since  obtained  in  town  causes. (o) 

*Before  the  statute  for  the  amendment  of  the  law,  when  the 
[  *640  ]  defendant  pleaded  s,  foreign  plea,  he  was  obliged  to  verify  it  by 
affidavit.(a)  And  now,  by  that  statute,(6)  "no  dilatory  plea 
shall  be  received  in  any  court  of  record,  unless  the  party  offering  such  plea 
do,  by  affidavit,  prove  the  truth  thereof ;  or  show  some  probable  matter  to 
the  court,  to  induce  them  to  believe  that  the  fact  of  such  dilatory  plea  is 
true."  The  affidavit  required  by  this  statute  maybe  made  by  the  defend- 
ant himself,  or  by  a  third  person  :(c)  and  as  the  statute  only  requires  pro- 
bable cause,  there  does  not  seem  to  be  any  necessity  for  an  affidavit,  when 
the  plea  is  for  matter  apparent  on  the  face  of  the  proceedings,  as  want  of 
addition, (cZcZ)  &c. ;  nor  when  the  truth  of  the  plea  will  appear  to  the  court, 
upon  an  inspection  of  their  own  records,  as  where  an  attorney  of  the  King's 
Bench  pleaded  that  he  was  an  attorney  of  that  court,  and  ought  to  be  sued 
by  bill.(ee)  Yet,  where  the  defendant  pleaded,  after  oyer  of  the  original, 
that  it  was  not  returned,  the  Court  of  King's  Bench  set  aside  the  plea,  for 
want  of  an  affidavit  of  the  truth  of  '\i\ff)  Aid  prayer, {gg)  in  the  Com- 
mon Pleas,  or  a  plea  to  a  scire  facias  against  heir  and  tertenants,  that 

{d)  Pr.  Reg.  1.  Cas.  Pr.  C.  P.  78.     Barnes,  224,  S.  C.    Id.  334,  S.  P.  Ante,  462,  3. 

(e)  Ante,  463,  4.  But  after  a  special  imparlance,  the  defendant  may  plead  in  abatement, 
though  not  to  the  jurisdiction  of  the  court.     Ante,  463. 

(/)  1  Lil.  P.  R.  3,  R.  E.  5  Ann.  (a.)  K.  B.  1  Durnf.  &  East,  278,  9.  7  Durnf.  &  East, 
298.  Cas.  Pr.  C.  P.  23,  64,  79. 

{g)  R.  E.  5  Ann.  [a.)  K.  B.  5  Durnf.  &  East,  210. 

(A)  3  Durnf.  &  East,  642.  ({)  2  Chit.  Rep.  7. 

{k)  Id.  8.    2  Dowl.  &  Ryl.  252.  [1)  4  Durnf.  &  East,  578.  Ante,  465,  6, 

[m)  2  Dowl.  &  Ryl.  252.  Ante,  465,  6.  (n)  2  East,  406  ;  and  see  11  East,  411. 

(o)  Holland  v.  Sladen,  M.  47  Geo.  III.  K.  B.  11  East,  411.  13  East,  170  ;  and  see  Forrest, 
149. 

(«)  2  Lil.  P.  R.  299,  Sty.  Rep.  435.  1  Wms.  Saund.  5  Ed.  98.  Carth.  402.  5  Mod.  335, 
S.  C.  1  Wms.  Saund.  5  Ed.  98.  (1.) 

{b)  4  &  5  Ann.  c.  16,  |  11.  (c)  Pr.  Reg.  6  Barnes,  344,  S.  C. 

{dd)  Pr.  Reg.  5.     3  Bos.  &  Pul.  397,  accord;  and  see  2  Wms.  Saund.  5  Ed.  210,  d. 

[ee)  M'Dougall  v.  Claridge,  M.  48  Geo.  III.,  and  see  6  Mod.  114.     2  Blac.  Rep.  1088. 

iff)   1  Str.  639.    2  Ld.  Raym.  1409,  S.  C. 

lag)  2  Bos.  &  Pul.  384. 


OP  PLEAS  IN  ABATEMENT.  G40 

there  are  other  tertenants  not  returnod.f/J/)  is  holdon  to  be  a  dilatory  plea 
within  tlie  statute,  and  must  be  VL-rificcl  l»y  allidavit. 

In  the  Kin_!^'s  Bench,  a  plea  in  abatement  should  be  si^rned  by  counsel; 
and  filed  in  the  office  of  the  clerk  of  the  papers:  and  if  it  be  not  signed, 
it  is  irregular,  and  the  plaintiff  may  sign  judgment  as  for  want  of  a  plea.(n) 
In  the  Common  Pleas,  it  is  signed  by  a  serjeant ;  and  either  delivered  to 
the  plaintiff's  attorney,  or  filed  in  the  prothonotaries'  office:  and,  in  both 
courts,  an  affidavit  should  be  annexed  to  the  pica,  stating  that  it  is  true, 
in  substance  and  matter  of  fact  ;(/c)  And  if  the  plea  be  not  filed  in  due 
time,(/)  or  there  be  no  affidavit  annexed  to  the  truthof  it,(?«)  or  a  defective 
affidavit,(7?)  the  plaintiff  may  consider  it  as  a  nullity,  and  sign  judgment; 
or  he  may  move  the  court  to  set  it  aside.(o)  But  the  court  will  not,  u[)on 
motion,  quash  a  bad  plea  in  abatement.(p)  And  the  plaintiff  cannot  sign 
judgment  after  a  plea  in  abatement,  because  the  affidavit  to  verify  the  plea 
was  sworn  before  the  defendant's  attorney. (ry)  A  defendant  putting  in  a 
plea  in  abatement  in  time,  with  an  afiidavitin  the  usual  form,  tliat  the  ]>ro- 
mises  contained  in  the  declaration  were  made,  if  at  all,  by  others 
as  *well  as  himself,  Avhich  affidavit  was  sworn  at  Liverpool  on  the  [  *G41  ] 
day  of  filing  the  declaration  in  town,  before  the  defendant  could 
have  seen  it,  was  holden,  in  the  King's  Bench,  not  to  be  a  nullity,  so  as 
to  entitle  the  plaintiff  to  sign  interlocutory  judgment  as  for  want  of  a 
plea  :{a)  And  the  Court  of  Common  Pleas  refused  to  grant  a  rule,  to  quash 
an  insensible  plea  in  abatement ;  saying,  that  they  would  not  try  the  good- 
ness of  a  demurrer  on  motion:  but  the  plaintiff  might,  at  his  own  peril, 
have  signed  judgment. (/»)  In  the  Exchequer,  if  a  plea  in  abatement  be 
not  supported  by  a  proper  affidavit  of  the  truth  of  it,  the  plaintiff  may  sign 
judgment  immediately  :{<')  and  a  mistake  in  omitting  the  name  of  one  of 
the  plaintiffs,  in  the  title  to  the  affidavit,  renders  it  insufficient  to  support  the 
plea,  although  it  refer  expressly  to  the  next  plea,  in  which  the  title  of  the 
cause  is  right  :(c)  And,  in  that  court,  if  the  plaintiff  has  regularly  signed 
judgment  for  want  of  an  affidavit,  the  court  Avill  not  afterwards  permit  the 
defendant  to  make  one.((Z) 

When  a  plea  in  abatement  is  regularly  put  in,  the  plaintiff  must  reply 
to  it,  or  demur.  If  he  reply,  and  an  issue  in  fact  be  thereupon  joined, 
and  found  for  him,  the  judgment  is  jjerempto)-^/,  quod  rcciqx'rct  ;(c)  but  if 
there  be  judgment  for  the  plaintiff,  on  demurrer  to  a  plea  in  abatement, 
or  replication  to  such  plea,  the  judgment  is  only  intcrlorutor)/,  quod  respon- 
deat ouster.{f)     In  the  latter  case,  the  defendant  has  in  general  four  days 

(///()  Forrest,  144.  (»)   1  Chit.  Rep.  209. 

(k)  2  Htr.  705  ;  and  see  Append.  Chap.  XXVI.  ^  5. 

h)   1  Durnf.  &  East,  277,  689.     5  Durnf.  &  East,  210.     7  Durnf.  &  East,  298.     Ante,  566. 

(m)  Pr.  Reg.  4.     Forrest,  139.     Ante,  505;  but  see  1  Str.  G38. 

(«)  2  .Moore,  213. 

(o)  1  Str.  638,  39.  2  Str.  705,  738.  Say.  Rep.  19,  293.  1  Ken.  3G4,  S.  C.  3  Bur.  1G17  ; 
but  see  2  Moore,  213. 

(p)  2  Barn.  &  Cres.  618.     4  Dowl.  &  Ryl.  114,  S.  C. 

<q)  3  Maule  &  Sel.  154.     Ante,  565. 

(a)  4  East,  348.  And  see  4  .Maule  &  Sel.  332,  where  it  was  said  by  Bnyley,  J.,  that  an 
affidavit  to  support  a  pica  in  abatement,  may  be  made  before  dcehiration. 

(h)  4  Taunt.  668.  (c)  3  Price,  197.     Ante,  565. 

(rf)  Forrest,  144. 

(e)  Gilb.  C.  P.  53.  1  Ld.  Raym.  594.  2  Ld.  Raym.  1022.  1  Str.  532.  2  Wils.  367.  1 
East,  542.     2  Bos.  &  Pul.  380,  (a) ;  but  i^ee  1  East,'G36.     2  Wms.  Saund.  5  Ed.  211,  (3). 

(/)  Id.  Ibid.  2  Wms.  Saund.  5  Ed.  211,  (3).  Append,  ("hap.  XXVI.  ?  9,  10.  But  see  3 
Barn.  &  Cres.  502.     5  Dowl.  &  Ryl.  422,  S.  C,  by  which  it  api)ear?  that  the  judgment  against 


641 


OF  PLEAS  IN  BAR. 


time  to  plead;  but  tins  is  in  the  discretion  of  the  courts :(^)  and  they  will 
sometimes  order  him  to  plead  instanter,  or  on  the  morrow.  In  assumpsit, 
the  defendant  pleaded  that  the  promises  were  made  by  him  jointly  with 
another ;  and  issue  being  taken  upon  that  fact,  the  jury  by  their  verdict 
found  that  the  defendant  promised,  without  stating  whether  he  promised 
alone  or  jointly  with  another;  and  the  court  held  that  this  verdict  was  bad, 
because  it  did  not  distinctly  pronounce  upon  the  issue. (A)  After  a  judg- 
ment of  respondeat  ouster,  it  is  said,  there  can  be  no  plea  in  abatement ; 
for  if  it  were  allowed,  there  would  be  no  end  of  such  pleas :{{)  But  this 
must  be  understood  of  pleas  in  abatement  in  the  same  degree,  as  popish 
recusancy  and  outlawry,(7c)  being  both  to  the  person ;  for  the  defendant 
may  plead  to  the  ])erson  of  the  plaintiff,  and  if  that  be  overruled,  he  may 

afterwards  plead  to  the/orm  of  the  writ.(Z) 
[  *642  ]       *The  judgment  for  the  defendant,  on  a  plea  in  abatement, 

whether  it  be  on  an  issue  in  fact  or  in  laiv,  is  that  the  writ  or 
hill  he  quashed  ;{a)  or  if  a  temporary  disability  or  privilege  be  pleaded,  as 
excommunication,  or  the  king's  protection,  infancy,  &c.,  that  the  ptlaint 
remain  toithout  day,  until,  cfc.  A  writ  in  deht  may  be  abated  in  part,  and 
stand  good  for  the  remainder  :(6)  And  if  a  plea  in  abatement  contain 
matter  which  goes  in  part  abatement  of  the  'WTit  only,  but  conclude  with  a 
prayer  that  the  whole  writ  may  be  abated,  the  court  may  abate  so  much 
of  the  writ  as  the  matter  pleaded  applies  to:(<?)  On  an  issue  mfact,  the 
defendant  is  entitled  to  costs  ;  but  not  on  an  issue  in  laiv.[d) 


[*643]  *CHAPTER   XXVII. 

Of  Pleas  in  Bar  :  and  herein,  of  the  General  Issue,  and  ivhat  may  he 
given  in  Evidence  under  it ;  of  Special  Pleas,  and  ivhen  necessary 
to  he  pleaded;  0/ pleading  several  Matters,  and  the  Costs  thereon; 
and  of  the  Plea,  and  Notice  of  Set-off,  l^-c. 

Pleas  in  bar  are  calculated  to  show,  either  that  the  plaintiff  never  had 
any  cause  of  action,  or  if  he  had,  that  it  is  discharged  by  some  subsequent 
matter :  And  they  are  in  denial,  or  confession  and  avoidance,  of  the  cause 
of  action  ;  or  they  conclude  the  plaintiff  by  matter  of  estoppel. (aa)  Pleas 
in  denial  are  of  the  whole,  or  a  part  of  the  declaration :  and  in  avoidance,- 
they  are  by  matter  precedent,  which  shows  the  plaintiff  never  had  a  cause 

the  defendant,  on  demurrer  to  a  plea  of  autrefois  acquit,  to  an  indictment  for  a  misdemea- 
nor, is  final. 

{g)  Comb.  19.  (/()  3  Barn.  &  Aid.  605. 

{i)  4  Bac.  Abr.  51.     Gilb.  C.  P.  186.     2  TVms.  Sauud.  5  Ed.  40,  41.     12  Mod.  230. 

(k)  Hetl.  126. 

{l)  Com.  Dig.  tit.  Abatement,  I.  4,  cites  Theol.  Dig.  lib.  X.  c.  1. 

(a)  Gilb.  C.  P.  52.     Append.  Chap.  XXVI.  I  7,  &c. ;  and  see  3  Maule  &  Sel.  453,  54. 

{h)   1  Wms.  Saund.  5  Ed.  285,  a,  (7).     2  Wms.  Saund.  5  Ed.  210,  &c. 

(c)  2  Bos.  &  Pul.  420. 

{d)  2  Ld.  Raym.  992.  1  Salk.  194,  S.  C.  And  see  further,  as  to  pleas  in  abatement,  their 
effect,  qualities  and  form,  the  affidavit  of  the  truth  of  them,  the  replications,  &c.,  thereto, 
and  judgments  thereon,  1  Chit.  PI.  4  Ed.  386,  &:c.  And  as  to  pleas  in  abatement,  in  courts 
of  equity,  see  Beam.  PL  Eq.  53,  54,  57,  280,  &c. 

(aa)  5  Hen.  Vll.  14.     1  Leon.  77.     Sav.  86. 


OF  PLEAS  IN  BAR.  643 

of  action,  and  is  called  an  avoidance  in  laii\  or  by  matter  subsequent, 
which  discharf.'cs  the  cause  of  action,  and  is  called  an  avoidance  \nfact.{hh) 
In  actions  upon  CONTUACTS,  the  defendant  may  either  plead  the  general 
issue  Avhich  denies  that  there  Avas  any  contract  between  the  parties,  in  jjoint 
of  fact ;  as  in  assumjmty  non-aissiuiipHit^[cc)  in  dcht  on  simple  contract,  ml 
debet  ;{dd)  in  covenant  or  debt  on  specialty,  iioii  est  factum  ;{e)  and  in  debt 
on  record,  or  scire  facias,  nul  tiel  record  ;{f)  or  if  there  was  a  contract  in 
point  of  fact,  he  may  plead  some  special  matter,  which  shows  that  it  was 
void  in  i)oint  of  law,  as  by  coverture,  or  the  statutes  of  (jainimj  or  unury, 
&c.,  or  voidable,  by  iiifanri/,  or  duress  of  imprisonment,  &c. :  or  if  there 
was  a  good  and  valid  contract,  that  has  been  performed ;  or  if  not,  that 
there  was  some  legal  excuse  for  its  non-performance,  arising  from  the  act 
of  God,  or  the  law,  or  of  the  king's  enemies,  or  from  the  act  or  default  of 
the  plaintiff,  either  by  releasituj  the  defendant  from  the  performance  of  the 
contract,  refusing  a  tender,  or  hindering  \nm  from  performing  it,  or  by  the 
non-performance  of  a  condition  precedent,  &c.  These  pleas  tend  to  show 
that  the  ])laintiff  never  had  any  cause  of  action  :  or,  admitting  that  he  had, 
the  defendant  may  plead  that  it  was  discharged  hj  some  subsequent  or 
collateral  matter ;  as,  at  common  law,  by  an  accord  and  *satis- 
faction,{a)  arbitrament, {b)  release,  former  recovery,  acquittal  or  [  *0-i-i  ] 
conviction,  foreign  attachment,{c)  or  set-off ;  or  that  the  cause 
of  action  was /o?/(7'^t'o?,  by  the  plaintiff's  being  an  alien  encmy,{d)  attaint- 
ed,[ee)  or  outlaived  ;  or,  by  act  of  parliament,  that  it  was  assigned  to  other 
persons,  under  the  statutes  relating  to  bankrupts,{ff)  or  insolvent  debtors  ; 
or  he  may  plead  his  own  bankruptcy,  or  discharge  under  an  insolvent 
debtors'  act ;  or  that  the  debt  ought  to  be  sued  for  in  a  court  of  conscience  ; 
or  lastly,  that  the  remedy  is  barred  by  the  statute  of  limit ations.{g) 

(bb)  5  Hen.  VII.  14. 

{cc)  Append.  Chap.  XXVII.  g  1,  2.  (dd)  Id.  §  .3,  4. 

(f)  Id.  <i  5. 

(/)  Id.  Chap.  XXXII.  §  1.  And  for  the  forms  of  general  issues  in  different  actions,  see 
Steph.  PI.  172,  <kc. 

(a)  4  Barn.  &  Cres.  506.     6  Dowl.  &  Ryl.  567,  S.  C. 

(b)  Arbitrament,  without  performance,  is  a  good  plea,  where  the  parties  have  mutual  re- 
medies.    1  Younge  &  J.  19. 

(f)  2  Chit.  Rep.  4:J8. 

{(!)  6  Durnf.  <fe  East,  23,  35.  But  the  court  of  King's  Bench,  would  not  stay  judgment 
and  execution,  on  a  summary  application,  because  the  plaintiffs,  after  verdict,  had  become 
alien  enemies.     U  East,  321. 

(ee)  By  attainder,  all  the  personal  property,  and  rights  of  action  in  resjicrt  of  property, 
accruing  to  the  party  attainted,  either  before  or  after  attainder,  are  vested  in  the  crown, 
without  oftice  found  ;  and  therefore,  attainder  may  be  well  pleaded  in  bar  to  an  action  on  a 
bill  of  exchange,  indorsed  to  the  jdaintiff  after  his  attainder.     2  Barn.  &  Aid.  258. 

(/)  8  Durnf  k  East,  140.     1  Bos.  &  Pul.  448.     7  East,  53. 

(f/)  For  a  full  account  of  the  pleas,  kc,  in  assump-vl,  in  denial,  see  Lawes,  on  Pleading, 
Chap.  XVI.,  in  avoidance;  Id.  Chap.  XVII.,  in  performance,  and  excuxe  thereof;  Id.  Chap. 
XVIIl.,  and  in  di.teharge,  at  common  law  or  by  statute ;  Id.  Chap.  XIX.  XX.  And  see  the 
Elements  of  Pleas  in  Equity,  by  Mr.  ifeames,  in  which  there  is  a  dear  and  learned  account 
of  the  correspondence,  as  far  as  it  goes,  between  rleas  at  law  and  in  equity ;  which 
latter  pleas  are  treated  of  as  applicable  to  the  relief  and  discovery  sought  by  original  bills, 
and  also  to  bills  not  original,  as  bills  of  revivor,  kc,  a  d  to  information  filed  liy  the  attor- 
nej'-general.  From  these  elements  it  apjiears.  that  i.i  equity,  as  well  as  at  law,  there  are 
pleas  to  tiie  jurisdiction,  in  at)atement,  and  in  bar:  and  the  chief  difference  between  tlie  two 
courts  arises,  from  pleas  in  denial  of  the  facts  which  constitute  the  cause  of  action,  or  ground 
of  complaint,  and  which  at  law  are  referred  to  the  jury  by  the  general  issue,  which  denies 
the  whole,  or  by  jjleas  in  denial  of  some  particular  facts  necessary  to  maintain  the  action  ; 
but  which,  in  equity,  are  the  subjec  of  answers.  Pleas  in  equity  are  treated  of  by  Mr. 
Beanies,  under  the  fourfold  division,  of  pleas  to  the  jurisdiction,  to  the  person  of  the  plaiutilf 


Q^^  OF  PLEAS  IN  BAR. 

In  an  action  affaiust  an  executor  or  administrator,  the  defendant  may 
plead  any  nuitter  wliicli  the  testator  or  intestate  mi^^ht  have  pleaded :  and 
in  addition  thereto,  he  may  deny  the  character  in  which  he  is  sued,  by  plead- 
ing ne  unqucs  executor  or  administrator  ;  or,  admitting  it,  he  may  plead 
that  ?20  rtssffs  have  come  to  his  hands,  or  that  he  has  fully  administered 
them,  and  tliat  either  generally,  or  specially,  with  the  exception  of  assets 
to  a  certain  amount,  Avhich  are  not  sufficient  to  satisfy  the  plaintiff  j  or 
he  may  plead  a  retainer  to  pay  his  own  debt,  of  equal  or  superior  degree 
or  debts  of  a  superior  degree  due  to  third  persons,  on  bonds  or 
[  *645  ]  judgments,  &c.(A)  So,  in  an  action  against  an  heir  or  a  devisee, 
the  ^defendant,  in  addition  to  any  matter  which  might  have  been 
pleaded  by  the  ancestor  or  devisor,  may  either  deny  the  character  in  which 
he  is  sued  ;  or,  admitting  it,  may  plead  that  he  has  nothing  hy  descent  or 
devise,  either  generally  or  specially,  viz.  that  he  has  nothing  but  a  reversion 
after  an  estate  for  life ;  or  that  he  has  paid  debts  of  an  equal  or  superior 
degree,  to  the  amount  of  the  assets  descended  or  devised,  or  that  he  retains 
the  assets  to  satisfy  his  own  debt,  of  equal  or  superior  degree,  or  debts  of 
a  superior  degree  due  to  third  persons.  The  heir,  if  an  infant,  may  also 
pray  that  the  parol  may  demur,  till  he  is  of  full  age. 

In  actions  for  wrongs,  the  defendant  may  either  deny  the  charge  con- 
tained in  the  declaration,  by  pleading  the  general  issue ;  as  in  case,  7iot 
guilty  of  the  premises  ;(a)  in  detinue,  71001  detinet :  in  replevin,  7ion  cepit  :(b) 
and  in  trespass  vi  et  armis,  not  guilty  of  the  trespasses  ;(a)  or  he  may  plead 
specially,  in  justification  or  excuse  of  the  injury  complained  of,  as  in  case 
for  a  lihcl  or  tvords,  by  showing  the  truth  of  them,  &c. 

In  replevin,  the  defendant  may  plead  property,  in  himself  or  a  third 
person  ;  and  where  he  goes  for  the  return  of  the  cattle  or  goods,  he  either 
avows,  if  the  distress  was  made  in  his  own  right,  or  in  right  of  his  wife,  or 
makes  cognizance,  if  it  was  made  by  him  as  bailiff  to  another ;  but  if  he 
do  not  go  for  a  return,  he  may  merely  justify  the  taking.  Avowries  and 
cognizances  are  founded  on  distresses  at  common  km,  for  rents,{c)  services 
or  customs  ;  or  for  damage  feasant,  and  that  either  by  the  party  in  pos- 
session, claiming  as  freeholder, ((^)  or  under  a  demise,  or  by  commoners  ;  or 
for  fines  or  amerciaments,  or  on  hye  laivs,  or  judgments  of  the  county 
court,  or  court  baron:  or  they  arise  out  of  distresses  by  act  of  parliament ; 
as  for  double  rent,  on  the  statute  11  Geo.  II.  c.  19,  §  18,  or,  after  n.  fraudu- 
lent removal  of  goods,  on  the  same  statute,  &c.  Pleas  m  bar  to  avow- 
ries and  cognizances  for  rent,  &c.,  either  deny  the  tenancy, (<?)  or  that 
there  was  any  rent  in  arrear,(e)  &c.,  or,  if  the  distress  was  for  damage 
feasant,  they  are  under  title,{f)  or  rights  of  common,  or  for  defect  of 
fences,  &c. 

In  trespass  to  the  person,  the  defendant  may  plead  son  assault  demesne, 

or  defendant,  to  the  bill,  and  in  ba-  :  but  what  he  considers  as  pleas  to  the  bill,  as  that  there 
is  another  suit  depending  for  the  same  cause,  &c.,  would  at  law  be  considered  as  pleas  in 
abatement ;  and  pleas  in  bar,  in  equity,  are  either  statutory  bars,  such  as  the  statute  of  limi- 
tations, or  of  frauds,  &c.,  or  founded  on  some  matter  precedent  or  subsequent,  showing  that 
the  complainant  never  had  any  title  to  the  relief  or  discovery  he  seeks,  or  if  he  had,  that  it 
is  discharged  by  a  release,  &c. 

[h)  For  pleas,  &c.,  in  actions  by  and  against  executors  and  administrators,  see  Lawes,  ou 
Pleading,  Chap.  XXI. 

(a)  Append.  Chap.  XXVII.  ?  6.  {b)  Id.  Chap.  XLV.  I  64. 

(c)  Id.  I  68.  {d)  Id.  I  66. 

('■)  Id.  I  69.  (/)  Id.  i  67. 


OF  PLEAS  IN  BAR.  645 

either  generally,  in  defence  of  himself  or  of  third  persons,  or  specially, 
with  an  ird  moUis ;  molUtcr  manus  imposuit,  in  defence  of  real  or  per- 
sonal property,  or  to  preserve  the  peace,  and  prevent  damage  ;  moderate 
correction,  or  amicable  contest,  &c.  In  trespass  to  personal  property,  in 
takiii-^  cattle  or  goods,  he  may  plead  that  they  are  his  own  property,  giving 
colour,  or  tenancy  in  comtuan  witli  the  plaintiiT;  or,  as  in  replevin,  that 
they  were  taken  under  distresses,  at  cotnniun  law  or  ]\y  art  of  parliament ; 
or,  in  trespass  for  killing  doys,  he  may  justify  as  park-kee])er,  kc,  or  for 
cutting  ro2}es,  that  it  -was  necessary,  to  prevent  damage.  In  trespass  to 
real  property,  the  defendant  may  plead  that  the  locus  in  quo  is  his  free- 
hold, {lihcruni  tencnientum,)  or  that  of  a  third  person,  under  whom  he 
acted  ;  or  that  he  has  title  less  than  freehold,  giving  colour,  or  is  tenant 
in  common  with  tlie  jdaintiff;  or  he  may  justify  under  rights  of 
common  of  ^pasture,  estovers,  or  turbary,  c^c,  or  of  several  or  free  [  *G46  ] 
fishery,  free  ivarren,  &c. ;  rights  of  way,  which  are  public  or  pri- 
vate, and  may  be  claimed,  if  private,  by  grant  or  prescription,  or  of  neces- 
sity ;  or  rights  of  entry,  which  are  of  various  kinds,  and  may  be  classed  as 
follows  :  first,  to  enter  places  of  public  resort,  as  fairs  and  markets,  inns, 
taverns,  &c.  ;  secondly,  to  enter  private  houses,  for  the  purpose  of  speaking 
with  the  phiintift",  or  his  lodgers,  or  of  demanding  a  debt,  or  to  remove 
goods  belonging  to  the  defendant ;  thirdly,  by  the  lord  of  a  manor,  to  take 
wreck  ;  fourthly,  by  a  rector  or  vicar,  to  fetch  away  tithes ;  fifthly,  by  an 
occupier  of  adjoining  land,  to  repair  fences ;  sixthly,  as  between  landlord 
and  tenant,  to  view  waste,  cut  down  timber,  or  foUoAV  and  distrain  goods 
fraudulently  removed,  or  to  take  estovers,  emblements,  fixtures,  or  way- 
going crops  ;  or,  seventhly,  to  abate  nuisances,  or  remove  obstructions,  kc. ; 
Lastly,  the  defendant  may  allege,  by  way  of  excuse,  that  his  cattle  escaped 
for  d(fect  of  fences,  which  the  plaintiff  was  bound  to  repair.  The  defen- 
dant may  also  justify  in  any  species  of  action  of  trespass,  under  a  license 
from  the  plaintiff,  or  legal  process,  criminal  or  civil  ;  which  latter  may 
issue  out  of  superior  or  inferior  courts,  and  is  original,  mesne  or  final ;  or 
he  may  justify  hy  authority  of  law,  without  process,  as  an  individual,  on 
suspicion  of  felony,  kc,  or  as  an  officer,  or  in  his  aid  ;  or  on  the  ground 
of  inevitable  necessity. 

The  pleas  which  have  been  mentioned,  in  actions  for  wrongs,  go  to  prove 
that  the  plaintiff  never  had  any  cause  of  action:  or,  admitting  that  he  had, 
the  defendant  may  plead,  as  in  actions  upon  contracts,  that  it  was  dis- 
charged, by  some  subsequent  or  collateral  matter,  as  by  an  accord  a!id 
satisfaction,  arbitrament,  release,  former  recovery  or  distress  for  the  same 
cause,  tender  of  suflScient  amends  for  an  involuntary  trespass,(a)  or  the 
statute  of  limitations. 

It  will  next  be  right  to  consider  when  the  general  i8Sue\^A]  may  be  pro- 

((t)  Stat.  21  Jac.  I.  c.  IG,  g  5.  Ante,  3G.  And  a  tender  of  amends  may  l)e  pleaded,  in 
actions  against  justices  of  tlic  peace,  by  stat  24  Geo.  II.  c.  44,  ^  2  ;  agains*  oflicers  of  the 
excUe  or  cuxloms,  hy  stat.  23  Geo.  III.  c.  70,  g  31 ;  2"4  Gc".  III.  scss.  2,  c.  47,  §  35,  (repealed 
by  6  Geo.  IV.  c.  1(».5  ;)  28  Geo.  III.  c.  37,  |  2G,  and  G  Geo.  IV.  c.  108,  g  05;  against  any 
person  or  jjcrsons,  fur  anything  done  in  jnirsnance  of  the  statnte  43  Geo.  HI.  c.  91t,  g  70,  for 
consolidating  the  provisions  of  the  acts  relating  to  tlie  duties  under  tlie  management  of  the 
commissioners  for  the  affairs  of  taxes,  or  any  act  for  granting  duties  to  be  assessed  under 
the  regulations  of  t'lat  act;  against  commissioners  of  bankrujit,  by  stat  6  Geo.  IV.  c.  IG,  g 
44;  against  officers  of  the  ar^y,  navy,  or  marines,  by  stat  6  Geo.  IV.  c.  108,  §  95;  and 

[.\]  The  general  issue  is  a  denial  of  all  the  material  facts  alleged  in  the  declaration. 


Q_^Q  OF  PLEAS  IN  BAR. 

pcrly  pleaded ;  and  what  may  be  given  in  evidence  under  it,  or  must  be 
pleaded  specially,  in  the  diiferent  actions. 

In  assumpsit,  the  general  issue  is  proper,  where  there  was  either  no  con- 
tract between  the  parties,  or  not  such  a  contract  as  the  plaintiff  has  declared 
on :  And  the  defendant  may  give  in  evidence  under  it,  that  the  contract  was 
void  in  law,  by  coverture, (?))  gaming,(e)  usury, (cf)  &c.  or  voidable 
[  *647  ]  *by  infancy,(aa)  duress,  &c. ;  or,  if  good  in  point  of  law,  that  it  was 
performed,{bh)  or  that  there  was  some  legal  excuse  for  the  non- 
performance of  it,  as  a  release  or  discharge  before  breach,  or  non-perform- 
ance by  the  plaintiff  of  a  condition  precedent,  &c.  This  sort  of  evidence 
will  show  that  the  plaintiff  had  no  cause  of  action.  But  if  he  had,  the 
defendant  may  give  in  evidence,  under  the  general  issue,  that  it  was  dis- 
charged, by  an  accord  and  satisfaction,(cc)  arbitrament,  release,((:Z(?)  foreign 
attachment,(e)  or  former  recovery  for  the  same  cause,(/)  &c.  In  short,  the 
J  question  in  assurnpsit,  upon  the  general  issue,  is  whether  there  was  a  sub- 
sisting debt,  or  cause  of  action,  at  the  time  of  commencing  the  suit.(^)  But 
matter  of  defence  arising  after  action  brought,  cannot  be  pleaded  in  bar  of 
the  action  generally ;  and  therefore  cannot  be  given  in  evidence  under  the 
general  issue. (A)  And  matters  of  law,(2)  in  avoidance  of  the  contract,  or 
discharge  of  the  action,  are  usual  pleaded :  It  is  also  necesary  to  plead  a 
tender,  or  the  statute  of  limitations, (A")  &c.  and  to  plead  or  give  a  notice  of 
set-off.  Formerly,  matters  in  discharge  of  the  action  must  have  been 
pleaded  specially  :(Z)  Afterwards,  a  distinction  was  made  between  express 
and  implied  assumpsits :  In  the  former,  these  matters  were  still  required 
to  be  pleaded,  but  not  in  the  latter. (?/i)     At  length,  about  the  time  of  Lord 

against  any  person,  for  anything  done  in  pursuance  of  the  statutes  7  &  8  Geo.  IV.  c.  29,  and 
c.  30,  §  41,  for  consolidating  the  laws  relative  to  larceny,  &c.,  or  malicious  injuries  to  pro- 
perty. 

(b)  12  Mod.  101. 

(c)  1  Ld.  Ra>Tn.  87.     1  Salk.  344.     Carth.  3.o6.     5  Mod.  170.     12  Mod.  97,  S.  C. 

(d)  1  Str.  498.  (aa)   1  Salk.  279.     1  Bos.  &  Pul.  481,  («). 
(bb)  1  Ld.  Raym.  217,  566.     12  Mod.  376,  S.  C.     1  Salk.  394. 

(cc)  1  Ld.  Raym.  566.  12  Mod.  376,  S.  C.  4  Esp.  Rep.  181.  But  a  plea  of  an  account 
stated,  and  balance  paid  to  the  plaintiff,  or  balance  in  favour  of  the  defendant,  "which  the 
plaintiff  promised  to  pay,  is  not  a  good  plea.     1  Ken.  250,  391.     1  Bur.  9,  S.  C. 

(dd)  Gilb.  C.  P.  64.  Doug.  106,  7.  3  Esp.  Rep.  234.  And  as  to  the  plea  of  relecc^e,  in 
courts  of  Equity,  see  Beam.  PI.  Eq.  218,  &c.,  275,  76. 

(e)  1  Salk.  280. 

(/)  2  Str.  733.  9  Moore,  724.  2  Bing.  377.  1  Car.  &  P.  403,  S.  C.  And  as  to  the  plea 
of  former  judgment  or  decree,  in  courts  of  Equity,  see  Beam.  PL  Eq.  197,  &c.,  205,  &c. 

(ff)  Doug.  106,  7.     Gilb.  C.  P.  64,  5. 

(h)  4  Barn.  &  Cres.  390.     6  Dowl.  &  Ryl.  475,  S.  C. 

(i)  Hob.  127.     2  Vent.  295. 

(k)  1  Ld.  Raym.  153.  Gilb.  C.  P.  66.  And  as  to  the  plea  of  the  statute  of  limitations, 
in  courts  of  Equity,  see  Beam.  PL  Eq.  161,  &c.,  167,  &c.,  274,  75. 

(l)   1  Ld.  Raym.  566.     12  Mod.  376,  S.  C. 

(m)  Vin.  Abr.  tit.  Evidence,  Z.  a.     1  Salk.  280.     Gilb.  C.  P.  65. 

Dudley  v.  Sumner,  5  Mass.  438.  And  any  matter  going  to  show  that  a  deed,  or  contract,  or 
other  instrument,  is  void,  may  be  shown  under  it.  Phelps  v.  Decker,  10  Mass.  267,  274. 
Anthony  v.  Wilson,  14  Pick.  303,  305.  Under  it,  too,  in  actions  arising  ex  contractu,  the  de- 
fendant may  give  in  evidence  any  matter  which  goes  to  show  that  the  plaintiff  never  had 
any  cause  of  action ;  as  that  it  was  void  for  want  of  consideration,  or  founded  on  illegal 
consideration,  and  therefore  void ;  or  that  the  supposed  consideration  had  entirely  failed, 
and  such  like  cases.  But  where  the  defence  in  any  way  admits  that  the  plaintifi"'s  cause  of 
action  did  exist,  and  seeks  to  avoid  it,  either  in  part  or  in  the  whole,  liy  matter  aliunde,  he 
must  either  plead  it,  or,  in  cases  of  set-ofiF,  give  notice  of  it  to  the  plaintiff.  Maverick  v. 
Gibbs,  3  McCord,  315. 


OF  PLEAS  IN  BAR.  647 

Holt^  tlicy  were  universally  allowed  to  be  given  in  evidence,  under  the 
general  issue. (ri) 

The  bankruptcy  of  the  pIaintiff,(o)  or  his  discharge  under  an  insolvent 
act,(p)  may  be  given  in  eviilence,  under  the  general  issue,  in  aasunijisit ; 
thougli  they  are  sometimes  jdeaded  specially.  But,  in  an  action  by  the  pro- 
visional assignee  of  a  bankrupt,  the  fact  of  the  bankruj)t's  estate  having 
been  assigned  by  the  plaintifi"  to  new  assignees,  between  the  time  of  issuing 
the  latitat  and  delivery  of  the  declaration,  was  holden  to  be  no  ground  of 
nonsuit,  upon  a  plea  of  non  assumpsit ;  but,  if  it  were  an  answer  to  the 
action,  should  have  been  pleaded  spccially.(7)  The  defendant  CAwwoigwe 
his  bankruptcy  in  evidence,  under  the  general  issue  :(?*)  But  his 
certificate,  ^allowed  after  tlie  filing  of  tlie  plaintiff's  bill,  and  before  [  *048  ] 
plea  pleaded,  was  holden  to  be  evidence  to  support  the  general  plea 
of  bankruptcy,  given  by  the  statute  5  Geo.  II.  c.  30,  §  7,  viz.,  that  before 
the  exhibiting  of  the  plaintiff's  bill,  the  llefendant  became  a  bankrupt,  and 
that  the  cause  of  action  accrued  before  he  became  a  bankrupt. (a)  And 
a  plea,  in  the  general  form,  was  deemed  sufficient  to  entitle  a  bankrupt  to 
the  benefit  of  the  statute  40  Geo.  III.  c.  121,  §  8,  which  discharges  him, 
after  having  obtained  his  certificate,  of  all  demands  at  the  suit  of  a  surety  or 
person  liable  for  his  debt,  who  has  paid  the  same  after  the  issuing  of  the 
commission,  in  like  manner,  to  all  intents  and  purposes,  as  if  such  person 
had  been  a  creditor  before  the  bankruptcy. (/»)  But  Avhere  the  certificate  is 
allowed  after  jilea  pleaded,  it  seems  that  the  bankruptcy  must  be  pleaded 
specially,  and  not  in  the  general  form  prescribed  by  the  above  statute. (c) 
And  a  certificate  obtained  at  Netofoundland,  under  the  49  Geo.  III.  c.  27, 
§  8,  does  not,  we  have  seen,(tf)  entitle  the  defendant  to  be  discharged,  on 
entering  a  common  appearance,  but  must  be  pleaded  in  bar.(c)  To  a  general 
plea  of  bankruptcy,  a  replication  that  the  defendant  had  before  been  dis- 
charged as  a  bankrupt,  by  virtue  of  the  statute  5  Geo.  II.  c.  30,(/)  and 
that  he  had  not  paid  15s.  in  the  pound  under  the  second  commission  is  bad 
on  special  demurrer. (/y) 

In  covenant,  there  is  properly  speaking  no  general  issue  ;  for  though  the 
defendant  may  plead  non  est  factum,  as  in  debt  on  specialty,  yet  that  only 
puts  the  deed  in  issue,  and  not  the  breach  of  covenant :  and  non  infregit 
conventionem  is  a  bad  plea. (A)  In  this  action  therefore,  the  defendant  must 
specially  contravert  the  deed,  or  show  that  he  hns performed  the  cox vnnnt, 
or  is  legally  excused  from  the  performance  of  it ;  or,  admitting  the  breach, 
that  he  is  discharged  by  matter  ex  post  facto,  as  a  release,  &c. ;  And  a  ten- 
der may  be  pleaded,  in  covenant  for  the  payment  of  money. (z) 

In  debt  on  simple  contract,  nil  debet  is  a  good  plea,  or,  in  actions  by 

{n)  1  L(l.  Tlavra.  217,  5GG.     12  Mod.  37G,  S.  C. ;  and  sec  Lawcs,  on  Pleading,  522,  23. 

{o)  3  Chit.  PI.  918,  (a). 

(/))  3  Camp.  236.  And  as  to  tiie  plea  of  bankruptcy,  or  iu.solvcncy,  of  the  plaintiff,  in 
courts  of  I<>[uitv,  .see  Beam.  PI.  Eq.  US,  &c. 

(a)  4  Barn.  &  Aid.  345.  (r)   1  Campb.  363. 

(a)  9  Ea.st,  82. 

(6)  5  Barn.  &  Aid.  12  ;  l)ut  .sec  12  East,  6G4,  semh.  contra,  and  see  stat.  G  Geo.  IV.  c.  IG, 
?52. 

(c)  6  East,  413.     2  Smith  R.  659.     1  M'Clel.  &  Y.  350,  S.  P. ;  but  see  2  II.  Blac.  553. 

{d)  Ante,  211.  (r)  3  Moore,  244,  623,     1  Brod.  &  Biug.  13,  294,  S.  C. 

(/)  §  7  ;  and  see  id.  ?  9.     G  Geo.  IV.  c.  16,  \  127. 

{g)  2  Maule  &  Sel.  549.     3  Camp.  499,  {a),  S.  C. 

(Ji)   1  Lev.  183.    3  Lev.  19.    1  Sid.  289.    8  Durnf.  &  East,  278.    1  Car.  &  &  P.  2G5.   Id.  {a). 

(i)  7  Taunt.  486.     1  Moore,  200,  S.  C. 


648 


OF  PLEAS  IN  BAR. 


executors  and  administrators,  non  detinet,  in  all  cases  where  nothing  was 
duo  to  the  plaintiff,  at  the  time  of  commencing  the  action  :(k)  And  under 
this  plea,  the  defendant  may  not  only  put  the  plaintiff  upon  showing  the 
existence  of  a  legal  contract,  but  he  may  give  in  evidence  the  performance 
of  it.  He  may  also  give  in  evidence,  under  this  plea,  a  release,  or  other 
matter  in  discharge  of  the  action  :(/)  And  it  has  even  been  holden,  that  as 
the  plea  is  in  the  present  tense,  the  statute  of  limitations  may  be 
[  *G40  ]  given  in  *evidence  under  it. (a)  But  in  debt  for  rent,  on  an  inden- 
ture of  lease,  if  the  defendant  plead  nil  debet,  he  cannot  give  in 
evidence  that  the  plaintiff  had  nothing  in  the  tenements  ;  because,  if  he  had 
pleaded  that  specially,  the  plaintiff  might  have  replied  the  indenture,  and 
estopped  him  :{b)  And  in  debt  qui  tarn,  the  defendant  was  not  allowed  to 
give  in  evidence,  on  nil  debet,  a  former  recovery  against  him  by  another 
person,  for  the  same  cause. (c6')  In  this  action  also,  as  in  assumpsit,  a  tender 
and  set-off  must  be  specially  pleaded. 

The  plea  nil  debet,  in  debt  on  simple  contract,  concludes  either  by  the 
defendant's  putting  himself  upon  the  country,  or,  by  waging  his  law,  and 
professing  himself  ready  to  defend  against  the  plaintiff  and  his  suit,  in  such 
manner  as  the  court  shall  consider,((?(^)  &c.  The  former  is  called,  in  the  old 
books  of  entries,  nil  debet  per  patriam  ;  the  latter,  nil  debet  per  legem. 
The  right  of  the  defendant  to  wage  his  law,  in  an  action  of  debt  on  simple 
contract,  has  fallen  into  complete  disuse,  though  it  still  exists  in  point  of 
law.(ee)  And  where  the  defendant,  having  waged  his  law,  in  the  King's 
Bench,  and  the  master  having  assigned  a  day  for  him  to  come  in  and  perfect 
it,  applied  by  his  counsel  to  the  court,  to  assign  the  number  of  compurga- 
tors, with  whom  he  should  come  to  perfect  it,  on  the  ground  that  the  num- 
ber being  uncertain,  it  was  the  duty  of  the  court  to  say  how  many  were 
necessary  ;  the  court,  being  disinclined  to  assist  the  revival  of  this  obsolete 
mode  of  trial,  refused  the  application,  and  left  the  defendant  to  bring  such 
number  as  he  should  be  advised  were  sufficient ;  and  observed  that  if  the 
plaintiff  were  not  satisfied  with  the  number  brought,  the  objection  would  be 
open  to  him,  and  then  the  court  would  hear  both  sides :(/)  The  defendant 
afterwards  prepared  to  bring  eleven  compurgators,  but  the  plaintiff  aban- 
doned the  action. ((/)[!] 

When  a  specialty  is  but  inducement  to  the  action,  and  matter  of  fact  the 
foundation  of  it,  there  7iil  debet  is  a  good  plea  ;  as  in  debt  for  rent  by  inden- 
ture, for  the  plaintiff  need  not  set  out  the  indenture. (7i)  So,  in  debt  for  an 
escape, (/)  or  on  a  devastavit  against  an  executor,(^)  the  judgment  is  but 
inducement,  and  the  escape  and  devastavit  are  the  foundation  of  the  action. 
But,  by  the  statute  8  &  9  W.  III.  c.  27.  §  6,  "  no  retaking  on  fresh  pursuit 

(/f)  Com.  Dig.  tit.  Pleader,  2  W.  17. 

\l)  5  Mod.  18.  1  Ld.  Raym.  5G6.  12  Mod,  376,  S.  C;  but  see  Gilb.  C.  P.  63.  Gilb.  Debt, 
434,  443,  semb.  contra. 

(a)   1  Ld.  Raym.  153.     2  East,  336,  joer  iaM'm?ce,  J.  (5)   1  Sails:.  277. 

[cc)   1  Str.  701,  2.  idd)  3  Chit.  PI.  4  Ed.  954.     Stepli.  PI.  250. 

(ee)   1  New  Rep.  C.  P.  207.  (/)   2  Bam.  &  Cres.  538.     4  Dowl.  &  Ryl.  3,  S.  C. 

{g)  3  Chit.  Blac.  Com.  341,  (9.)  And  see  further,  as  to  wager  of  law,  Bac.  Abr.  under 
that  title,  3  Chit.  Bl.  Com.  341,  &c.  Steph.  PL  124,  5  ;  and  for  entries  thereon,  see  Co.  Ent. 
119,  a.     2  Mod.  Ent.  242.     Lil.  Ent.  467. 

{h)  Gilb.  C.  P.  61,  2.  Hardr.  332.  2  Ld.  Raym.  1501,  2,  3.  1  New  Rep.  C.  P.  105,  109. 
1  Wms.  Saund.  5  Ed.  38,  «,  (3.)     2  Wms.  Saund.  5  Ed.  297,  (1.)  (i)  2  Salk.  565. 

{kk)   1  Wms.  Saund.  5  Ed.  219.     Carth.  2. 

[1]  The  Supreme  Court  of  the  United  States  have  decided,  that  wager  of  law  has  no  ex- 
istence in  the  jurisprudence  of  the  Union.     9  Wheaton,  642. 


OF  PLEAS  IN  BAH.  649 

shall  be  given  in  evidence,  on  the  trial  of  any  issue,  in  any  action  of  escape 
against  the  marshal,  &c.,  unless  the  same  shall  be  specially  jileailed ;  nor  shall 
any  special  plea  be  received  or  allowed,  uidcss  oath  be  iirst  made  in  writing 
by  the  defendant,  and  filed  in  the  pro])er  oflice,  that  tiie  jtrisoner, 
for  whose  escape  such  action  is  brou'^ht,  *did  esca))e  without  his  [  *G50  ] 
consent,  privity  or  knowledge. "(a)  And  when  the  deed  is  the 
foundation,  and  the  fact  but  inducement,  there  nil  debet  is  no  plea  ;  as  in 
debt  for  a  penalty  on  articles  of  agreement, (i)  or  on  a  bail-l)ond,(f)  &c.  In 
the  latter  action  however,  if  the  defendant  \)\(;m\  nil  debet,  xwA  the  plaintiff 
do  not  demur,  but  take  issue  thereon,  it  lets  the  defendant  into  any  defence 
he  may  have  on  the  merits.(t^) 

It  sometimes  happens,  that  instead  of  ])leadingthe  general  issue  of  nil 
debet  to  the  whole  declaration,  the  defendant,  for  greater  certainty,  will 
select  and  deny  some  particular  fact,  necessary  to  maintain  the  action  ;  as 
the  demise,  in  debt  for  rent  on  a  parol  lease,  to  which  he  may  plead  non 
dimisit ;(«)  but  he  cannot  plead  this  plea,  in  debt  for  rent  on  an  inden- 
ture :{ff)  and  it  is  said,  that  7-iens  en  arrere  is  not  a  good  plea,  without  con- 
cluding et  issint  nil  debet.{(/g) 

In  debt  on  bond,  or  other  specialty,  the  general  issue  of  non  est  factum 
is  good,  in  all  cases  where  the  deed  was  not  executed,  or  varies  from  the 
declaration  :{hh)  And  the  defendant  may  give  in  evidence  under  it,  that  the 
deed  was  delivered  as  an  cscrow,(<)  to  a  thi)-d  person  ;  or  that  it  was  void 
at  common  hnv  ab  initio,[k)  being  obtained  by  fraud,  or  made  by  a  married 
woman, (/)  lunatic,(yy^)  &c.  or  that  it  became  void  after  it  was  made,  and 
before  the  commencement  of  the  action,(n)  by  erasure,  alteration,  cancel- 
ling, &c.  or  that  a  bail  bond  was  taken  after  the  return  day  of  the  writ, 
conditioned  for  the  defendant's  appearance  07i  the  retui-n  day.(o)  But  he 
cannot  give  in  evidence,  under  the  general  issue,  that  the  deed  was  void 
or  voidable  by  infancy,(p)  durcss,(^)  |>t;r  minas,{q)  &c.,  or  that  it  was 

(a)  As  to  the  form  of  the  affidavit,  see  2  Blac.  Rep.  1059. 

h)  2  Ld.  Raym.  1500.     2  Str.  US.     1  Barnard  K.  B.  15.     8  Mod.  lOG,  323,  382,  S.  C. 

(c)  Id.  Fort.  3G3,  3G7.  5  Bur.  2586.  And  the  pleaof  «(7  debet,  in  delit  on  bond,  is  bad  on 
a  general  demurrer,  though  perhaps  it  might  be  aided  after  verdict,  2  Wils.  10.  And  see 
further,  as  to  the  cases  in  which  nil  debet  is  or  is  not  a  good  plea,  Com.  Dig.  tit.  Pleader,  2 
W.  17.  1  Wms.  Saund.  5  Ed.  38,  (3.)  2  Wms.  Saund.  5  Ed.  187,  (2.)  1  Chit.  Pi.  4  Ed. 
424,  to  428.     Steph.  PI.  177,  8. 

(d)  5  Esp.  Rep.  38.  (e)  Gilb.  Debt,  438.  (/)  Id.  436. 
(gff)  Id.  440  ;  cites  Bro.  Dette,  113.     Keilw.  153. 

(hh)  Com.  Dig.  tit.  Pleader,  2  W.  18  ;  and  see  6  Taunt.  394.  2  Marsh.  96,  S.  C.  4  Maule 
&Sel.470. 

(i)  2  Rol.  Abr.  683,  4,  5.     T.  Raym.  197.     6  Mod.  217.     4  Esp.  Rep.  255. 

(k)  5  Co.  119 ;  and  see  2  Wils.  341,  347  ;  but  see  2  Stark.  Ni.  Pri.  35.  2  Chit.  Rep.  334, 
S.  C,  where  it  was  ruled,  that  the  defendant  cannot,  under  the  plea  of  wow  est  factum  to  a 
declaration  upon  a  bond,  go  into  evidence  to  show  that  the  consideration  was  illegal  at  common 
law:  and  see  2  Stark.  Ni.  Pri.  30,  in  notis.  (/)  2  Campb.  272. 

im)  2  Str.  1104  ;  but  see  2  Salk.  G75.  (n)  5  Co.  119,  b.  Sav.  71,  scinb.  contra, 

o)  4  Maule  &  Sel.  338 ;  and  see  2  Dumf.  &  East,  569. 
p)  The  contract  of  an  infant  seems  in  general  to  be  void;  though,  in  the  ca.ee  of  a  bond, 
&c.,  his  infancy  must  be  pleaded  to  avoid  it.  5  Co.  119,  a.  Gilb.  iJebt,  437.  2  Salk.  675.  1 
Ld.  Raym.  315,  S.  C. ;  but  see  1  Salk.  279,  where  Trebi/,  Ch.  J.,  said,  that  the  promise  of  an 
infant  is  absolutely  void  ;  but  a  bond  takes  effect  by  sealing  and  delivery,  and  consequently 
is  a  more  deliberate  act,  and  therefore  is  only  voidable  :  and  see  3  Bur.  1794,  1805.  I.,awe3, 
on  Pleading,  569.  3  Taunt.  307.  3  Maule  &  Sel.  477.  2  Stark.  Ni.  Pri.  36.  6. Moore,  488. 
See  also  stat  9  Geo.  IV.  c.  14,  §  5,  by  which  ''  no  action  shall  be  maintained,  whereby  to 
charge  any  person,  upon  any  promise  made  after  full  age,  to  pay  any  debt  contracted  during 
infancy,  or  upon  any  ratification  after  full  age  of  any  promise  or  simple  contract  made  during 
infancy,  unless  sucli  promise  or  ratification  shall  be  made  b}-  some  writing,  signed  by  the 
party  to  be  charged  therewith.  (y)  2  Inst.  482,  3. 


650 


OF  PLEAS  IN  BAR. 


[  *G51  ]  void  by  *act  of  parliament,(a)  as  by  the  statutes  of  usury,(5)  or 
gaming,  &c.  In  these  cases  therefore,  the  defendant  must  plead 
specially.  So  he  must  plead  ijayment^  at  or  after  the  day,  performance, 
or  any  matter  in  excuse  of  performance,  as  non  damnificatus  to  a  bond  of 
indcuniity,  no  aioard  to  an  arbitration  bond,  or,  to  a  bail  bond,  no  process 
to  arrest  the  defendant, (c)  &c.  lie  must  also  plead  specially,  in  discharge 
of  the  action,  a  tender,  or  set-off. 

In  debt  on  record,  the  general  issue  of  nul  tiel  record  is  proper,  where 
there  is  either  no  record  at  all,  or  one  different  from  that  which  the  plain- 
tiff has  declared  on.(tZ)  But  as  this  plea  only  goes  to  the  existence  of  the 
record,  the  defendant  must  plead  payment,  or  any  matter  in  discharge  of 
the  action  :  And  if  an  action  of  debt  be  brought  here,  on  a  judgment  in 
Ireland,  the  plea  of  nul  tiel  record  must  conclude  to  the  country.(e) 

In  actions  upon  the  case,  the  defendant,  upon  the  general  issue  of  not 
guilty,  may  not  only  put  the  plaintiff  upon  proof  of  the  whole  charge  con- 
tained in  the  declaration,  but  may  offer  any  matter  in  excuse  or  justification 
of  it ;(/)  or  he  may  set  up  a  former  recovery,  release,  or  satisfaction  -.{g) 
For  an  action  upon  the  case  is  founded  upon  the  mere  justice  and  conscience 
of  the  plaintiff's  case,  and  is  in  the  nature  of  a  bill  in  equity,  and  in  effect 
is  so  ;  and  therefore  such  a  former  recovery,  release,  or  satisfaction  need  not 
be  pleaded,  but  may  be  given  in  evidence  :  since,  whatever  will,  in  equity 
and  conscience,  according  to  the  circumstances  of  the  case,  bar  the  plaintiff's 
recovery,  may  in  this  action  be  given  in  evidence  by  the  defendant ;  be- 
cause the  plaintiff  must  recover  upon  the  justice  and  conscience  of  his  case, 
and  upon  that  only.  In  trover,  it  is  commonly  said,  there  is  no  special 
plea,  except  a  release  ;  but  this  is  a  mistake :  for  the  defendant  may  plead 
specially  any  thing  else,  which,  admitting  the  plaintiff  had  once  a  cause  of 
action,  goes  to  discharge  it,  as  the  statute  of  limitations,  (A)  or  a  former 
recovery, (z)  &c.  The  hankruptey  of  the  plaintiff,  before  the  cause  of  action 
accrued,  may  be  given  in  evidence,  in  this  action,  under  the  general  issue 
of  not  guilty  :(h)  but  where  the  bankruptcy  happens  after  the  cause  of  action 
accrued,  it  should  it  seems  be  pleaded  specially. 

In  an  action  for  words,  the  truth  of  them  cannot  be  given  in  evidence, 
under  the  general  issue  of  not  guilty. (Z)  And  it  is  not  competent  for  the 
defendant,  under  the  general  issue,  to  offer  in  mitigation  of  damages,  evidence 
that  the  specific  facts  in  which  the  slander  consists  and  for  which 
[  *652  ]  the  action  is  brought,  were  communicated  to  him  by  a  third  *per- 
son :(««)  But,  in  an  action  on  the  case  for  slander  of  title,  the  truth 
of  the  words  may  be  given  in  evidence  under  the  general  issue,  to  disprove 
malice,  1  Moody  &  M.  1.  But  it  seems  that  the  defendant  may,  on  the 
general  issue,  go  into  evidence  to  show  that  he  spoke  the  words  ho7id  fide, 

{a)  5  Co.  119,  a.  {b)   1  Str.  498. 

(c)  Sav.  Rep.  116. 

{d)  Gilb.  Debt,  444.     3  Mod.  41. 

(e)  5  East,  473.  2  Smith  R.  25,  S.  C. ;  and  see  1  Barn.  &  Aid.  153.  9  Price,  3.  3 
Barn.  &  Cres.  449.    5  Dowl.  &  Ryl.  295,  S.  C.    4  Barn.  &  Cres.  411.    6  Dowl.  &  Rvl.  471,  S.C. 

(/)  2  Mod.  27G,  7.     3  Mod.  166.     Com.  Rep.  273.     1  Wils.  44,  175. 

(V)  3  Bur.  1353.     1  Blac.  Rep.  388,  S.  C.  (A)   1  Lutw.  99. 

[i)  1  Show.  146. 

{k)  7  Durnf.  &  East,  391.  And  the  defendant  in  this  case,  having  pleaded  bankruptcy  in 
the  plaintiff  specially.  Lord  Kenyan  was  of  opinion,  that  the  plea  would  have  been  bad  on 
special  demurres.     Id.  396.     Ante,  647,  8. 

(0  Vvllles,  20.     2  Str.  1200.     1  Bos.  &  Pul.  525.     2  Bos.  &  Pul.  225.  (a.) 

{aa)  Holt  Ni.  Pri.  533  ;  and  see  Sel.  Ni.  Pri.  6  Ed.  1232.     4  Bing.  167. 


OF  PLEAS  IN  BAR.  652 

and  without  malice  ;{b)  or  he  may  prove,  on  the  general  issue,  in  mitigation 
of  damages,  such  facts  and  circumstances  as  show  a  ground  of  suspicion,  not 
amounting  to  actual  proof  of  the  guilt  of  the  plaintiff.(c')  And  when  words 
are  given  in  evidence,  in  order  to  prove  malice,  which  are  not  stated  in  the 
declaration,  the  defendant  may  ])rove  the  truth  of  such  AV()rds.((/)  So,  in 
an  action  for  libe/,  the  defendant  may  give  in  evidence,  on  the  general 
issue,  in  mitigation  of  damages,  not  only  that  there  were  rumours  and 
reports,  of  the  same  tenor  as  in  the  supposed  libel,  previously  current,  but 
that  the  substance  of  the  libellous  matters  had  been  published  in  a  newspa- 
per; and  he  is  not  required  to  lay  a  basis  for  this  evidence,  by  producing  the 
newspaper  at  the  trial. ((')  But  the  plaintiff' is  not  permitted,  in  an  action 
for  a  libel,  to  go  into  evidence,  on  the  general  issue,  to  show  that  the  allega- 
tions in  the  libel  are  false  :(/)  Neither  can  he  give  in  evidence  subsequent 
declarations  by  the  defendant,  where  the  intention  of  publication  is  not 
equivocal ;(/)  nor  can  the  defendant  give  in  evidence  other  libels,  published 
of  him  by  the  plaintiff",  not  distinctly  relating  to  the  same  subject. (^)  In 
an  action  for  a  libel,  purporting  to  be  a  report  of  a  coroner's  inquest 
evidence  of  the  correctness  of  the  report  is  admissible  under  the  general 
issue,  in  mitigation  of  damages ;  but  no  evidence  of  the  truth  or  falsehood 
of  the  facts  stated  at  the  inquest,  is  admissible  on  either  side.  1  Moody 
&  M.  46. 

In  detinue,  the  defendant  may  give  in  evidence,  under  the  general  issue 
of  non  detinct,  a  gift  from  the  plaintiff";  for  that  proves  he  detaineth  not 
the  plaintiff"'s  goods  :{h]i)  But  he  cannot  give  in  evidence,  that  the  goods 
were  pawned  to  him  for  money,  Avhich  is  not  paid ;  but  he  must  plead  it. 

In  trespass  to  the  person,  the  general  issue  of  not  guilty  may  be  pro- 
perly pleaded,  if  the  defendant  committed  no  assault,  battery,  or  imprison- 
ment, (fee;  in  trespass  to  jwcrso^^aZ  property,  if  the  plaintiff*  had  no  property 
in  the  goods ;  and  in  trespass  to  real  property,  if  he  Avas  not  in  possession 
of  the  land,  &;c. :  And  liherum  tenementum,  or  other  evidence  of  title  or 
right  to  the  possession,  may  be  given  in  evidence  under  the  general  issue.(/} 
But  the  defendant  cannot  justify,  under  the  general  issue,  cutting  the  posts 
and  rails  of  the  plaintiff",  though  erected  upon  the  defendant's  own  land ; 
there  being  no  question  raised  as  to  the  property  remaining  in  the  plain- 
tiff".(/c)  And  regularly,  by  the  common  law,  matter  of  justification  or  excuse 
must  be  speciall//  pleaded ;(?)  as,  in  tresj^ass  to  the  person,  son  assault 
demesne,  or,  in  trespass  to  real  property,  a  license  ;(wi)  that  the  beasts  came 
through  the  plaintiff"'s  hedge,  which  he  ought  to  have  repaired;  or 
in  respect  of  a  rent  charge,  common,  or  the  like  ;(??)  And  the  *de-  [  *G53  ] 
fendant  must  plead  specially  a  release,  or  other  matter  in  discharge 
of  the  action. (r/)     But  in  actions  against  justices,  &c.  and  in  various  other 


(b)  1  Car.  &  P.  475,  G73. 

(c)  Pcakc's  Eviil.  5  Ed.  308;  and  sec  2  Campb.  251.     1  .Miuilc  &  Scl.  284.     Uolt  Ni.  Pri. 
306,7.     1  Car.  &  P.  279.     11  Price,  235. 

(d)  2  Stiirk.  Ni.  Pri.  457  ;  and  see  2  Str.  3  Ed.  1200.  (1.) 
\e)  Holt.  Ni.  Pri.  299. 

( /■)   2  Stark.  Ni.  Pri.  93;  and  see  8  Moore,  4rt7.     1  Bing.  403,  S.  C. 
(y)  3  Barn.  &  Cres.  113.     4  Dowl.  &  Kyi.  G70,  S.  C.     Ky.  &  Mo.  422. 
(hh)  Co.  Litt.  283. 

(i)  Andr.  108.     Willes,  222.     7  Durnf.  &  East,  354.     8  Durnf.  &  East,  403. 
(A)  8  East,  404.  (/)  Co.  Lit.  282,  3.     2  Pol.  Abr.  G82.     12  Mod.  120. 

\m)  Hob.  274,  5.     2  Durnf.  &  East,  168.     7  Taunt.  156  ;  but  sec  21  Hen.  VII.  28,  &,pcr 
Rede,  contra. 

(n)  Co.  Litt.  283.  (a)  3  Bur.  1353. 


653 


OF  PLEAS  IN  BAR. 


cases,  the  defendant,  by  act  of  parliament,(J)  is  allowed  to  plead  the  general 
issue,  and  give  the  special  matter  in  evidence. (c)  In  an  action  of  trespass 
and  false  imprisonment,  a  constable  may  justify  under  the  general  issue, 
though  he  acted  without  a  warrant,  provided  there  was  a  reasonable  charge 
of  fch)ny  made  ;  although  ho  afterwards  discharge  the  prisoner,  without 
taking  liim  before  a  magistrate,  and  although  it  should  turn  out  in  fact, 
that  no  felony  was  committed. (c^)  But  a  private  individual,  who  makes  the 
charge,  and  puts  the  constable  in  motion,  cannot  justify  under  the  general 
issue:  he  must  plead  the  special  circumstances  by  way  of  justification,  in 
order  that  it  may  be  seen  whether  his  suspicions  were  reasonable. (e) 

When  the  defence  consists  of  matter  of  fact,  and  the  general  issue  may, 
it  ought  to  be  pleaded ;  it  being  in  such  case  a  good  cause  of  demurrer,  that 
the  plea  amounts  to  the  general  issue. (/)  But  it  is  observable,  that  in  many 
cases,  where  the  defence  consists  of  matter  of  law,  the  defendant  may  either 
plead  it  specially,  or  give  it  in  evidence  under  the  general  issue  ;  as  in 
assumjysit,  infancy,  accord  and  satisfaction,  or  a  release,  &c.  may  be  either 
pleaded,  or  given  in  evidence  upon  no7i  assumpsit ;  and  in  deht  on  bond, 
made  by  a  married  woman,  the  defendant  may  either  plead  coverture,  or 
give  it  in  evidence  upon  non  est  factum.  So,  in  assumpsit,  the  court  of 
Common  Pleas  held,  that  the  defendant's  undertaking  was  for  the  default 
of  another,  without  writing,  and  without  consideration,  or  that  the  person 
for  whom  the  defendant's  undertaking  was  given,  was  afejne  covert,  might 
be  pleaded,  although  the  facts  might  have  been  given  in  evidence  under  the 
general  issue.  1  Moore  &  P.  294.  4  Bing.  470,  S.  C.  In  these  cases,  from 
the  nature  of  the  defence,  the  plaintiff  has  an  implied  colour  of  action  ;  bad 
indeed  in  point  of  law,  if  the  facts  pleaded  be  true,  but  which  is  properly 
referred  to  the  decision  of  the  court.  And  Avhere,  from  the  nature  of  the 
defence,  the  plaintiff  would  have  no  implied  colour  of  action,  the  defendant 
in  some  cases  is  allowed  to  give  him  an  express  colour. {g)  Thus,  in  the 
common  and  almost  only  case  where  express  colour  is  now  given,  if  in  an 
action  of  trespass  quare  claiisum  friget,  the  defendant  plead  a  possessory 
title  under  a  demise  from  a  third  person,  (for  if  he  claim  under  the  plaintiff, 
there  is  an  implied  colour,)  this,  without  more,  would  amount  to  the  general 
issue  ;(/j)  for  it  goes  to  deny  that  the  trespass  was  committed  in  the  plain- 
tiff's close  :  but  if  the  defendant,  after  stating  his  own  title,  sup- 
[  *654  ]  poses  (as  is  usual,)  that  the  plaintiff  entered  upon  him,  *under 
colour  of  a  former  deed  of  feoffment  without  livery,  and  that  he 
re-entered,  this  creates  a  question  of  law,  for  the  decision  of  the  court ;  and 

(J)  See  particularly  the  statutes  43  Eliz.  c.  2,  §  19.  1  Jac.  I.  c.  15,  §  16.  Y  Jac.  I,  c.  5. 
21  Jac.  I.  c.  12,  ^  5.  '  11  Geo.  II.  c.  19,  §  21.  23  Geo.  III.  c.  70,  §  34.  28  Geo.  III.  c.  37,  ^ 
23.  42  Geo.  III.  c.  85,  |  6.  43  Geo.  III.  c.  99,  §  70.  6  Geo.  IV.  c.  16,  §  44,  &  c.  108,  §  97. 
7  &  8  Geo.  IV.  c.  4,  ^  155,  c.  29,  |  75,  &  c.  30,  |  41.  9  Geo.  c.  4,  §  155.  And  see  further, 
as  to  what  must  be  pleaded  specially,  or  may  be  given  in  evidence  under  the  general  issue, 
in  different  actions,  1  Chit.  PL  4  Ed.  416,  &c. ;  and  in  the  action  of  assumpsit  in  particular, 
Lawes,  on  Pleading,  Chap.  XVI.  p.  520,  &c. 

(c)  Co.  Lit.  283. 

{d)  Doug.  359.  5  Durnf.  &  East,  315.  3  Campb.  420.  Holt  Ni.  Pri.  478.  6  Barn.  & 
Cres.  635. 

(e)  Holt  Ni.  Pri.  478 ;  and  see  4  Taunt.  34. 

(/)  Co.  Lit.  303,  b.  Doc.  pi.  203,  4.  Gilb.  C.  P.  60,  61.  2  Chit.  Rep.  642.  And  see 
further,  as  to  the  cases  in  which  the  general  issue  may,  and  ought  to  be  pleaded,  Steph.  PL 
176,  &c. 

{g)  For  the  difference  between  express  and  implied  colour,  see  an  argument  of  Jlolt,  in  Reg. 
Plac.  303.     Steph.  PL  225. 

(h)  8  Durnf.  &  East,  406.     1  East,  215. 


OF  PLEADING  SEVERAL  MATTERS.  G54 

by  that  means  prevents  the  plea  from  amounting  to  the  general  issue  :  and 
being  matter  of  supposal,  it  is  not  traversable. 

In  trespass  for  taking  goods,  if  the  defendant  plead  that  A.  was  possessed 
of  tliem,  as  of  his  proper  goods,  and  sold  them  in  market  overt,  or  that  B. 
stole  the  goods  from  A.  and  waived  them  within  his  manor,  wherefore  he 
took  them,  the  defendant  nmst  give  eoloin- ;  for  his  plea  [jroves  that  no 
property  was  in  the  plaintiff,  so  he  had  no  colour  of  action  :  And  the  colour 
usually  given  in  such  cases  is,  that  the  defendant  bailed  the  goods  to  a 
stranger,  who  delivered  them  to  the  plaintiff,  from  whom  the  defendant 
took  them.  But,  in  the  same  cases,  if  the  defendant  plead  that  A.  sold  the 
goods  in  market  overt,  without  saying  that  they  were  his  own,  or  that  B. 
took  them  de  quodam  ignoto,  and  waived  them,  the  ])lea  is  good  without 
colour  ;  for  it  does  not  deny  but  that  the  property  was  in  the  plaintiff,  and 
the  defendant  is  not  bound  to  show  expressly  in  whom  it  was.(a) 


Pleas  in  bar  are  single  or  double  ;[a]  or,  in  other  words,  the  defendant 
ma3'  rely  upon  a  single  ground,  or  plead  several  matters  in  his  defence.  At 
common  law,  the  defendant  could  only  have  pleaded  a  single  matter  to  the 
whole  declaration ;  which  rigour  often  abridged  the  justice  of  his  defence, 
and  was  doubtless  one  cause  of  perplexed  inartificial  pleading ;  the  party 
endeavouring  to  crowd  as  much  reasoning  as  he  could  into  his  plea,  however 
intricate,  repugnant  and  contradictory  he  made  it  by  so  doing. (/>)  But  even 
at  common  law,  the  defendant  might  have  pleaded  several  matters,  to  dif- 
ferent parts  of  the  declaration ;  as  not  guilty  to  part,  and  to  other  part  a 
justification,  or  release,  &c.  And  where  there  were  several  defendants,  each 
of  them  might  have  pleaded  a  single  matter  to  the  whole,  or  several  matters 

(a)  Dr.  Leyfidds  cme,  10  Co.  00,  b.  And  for  more  of  the  doctrine  concerning  colour,  see 
the  same  case, ;>er  Mum;  Doct.  &  Stud.  lib.  2,  c.  53.  3  Salk.  273.  3  Bhic.  Com.  309.  3 
Reeve's  Hist.  24,  438.     1  Chit.  PI.  4  Ed.  443,  &c.     Steph.  PI.  220,  &c.     JJ.  Append.  Iviii. 

(6)  2  Eunom.  141 ;  and  see  1  Chit.  PI.  4  Ed.  208.     Steph.  PI.  289,  00. 

[a]  a  plea  is  not  double,  unless  it  contain  more  than  one  ground  of  defence  to  the  action, 
although  it  may  contain  many  distinct  matters,  all  going  to  make  one  entire  defence.  Torrey 
V.  Fidd,  10  Verm.  3.J3.  Under  the  peculiar  practice  of  South  Carolina,  leave  to  plead  double, 
or  to  withdraw  a  jdea  and  plead  de  novo,  cannot  be  granted  by  a  judge  at  chambers,  but 
must  be  applied  for  in  open  court.  Frazer  v.  3fLeod,  1  Brevard,  108.  And  the  constitu- 
tional court  will  not  grant  leave  to  plead  double,  or  make  any  other  original  order,  which 
has  not  first  been  applied  for  in  the  District  Court.  II).  But,  on  motion  to  plead  double, 
leave  is  always  granted,  on  condition  of  pleading  instantly,  if  the  cause  be  at  issue  ;  there- 
fore, no  notice  or  rule  to  reply  is  necessary.  J'ickins  v.  S/iarkhford,  2  Brevard,  96.  Under 
the  Mississippi  statute,  relating  to  double  pleading,  a  plea  of  the  general  issue,  and  a  special 
plea  which  amounts  to  the  general  issue,  cannot  be  allowed.  Moore  v.Jfickdl,  Walker,  231. 
A  defendant,  generally,  may  not  plead  doul)le,  without  leave  of  the  court.  iV/7/<'r  v.  Fisk,  1 
M'Cord,  50.  The  filing  of  consistent  double  pleas  is,  however,  a  motion  of  course,  and  is 
always  allowed,  liirhordson  v.  W/iiljidd,  2  IIj.  148.  The  courts  will  not  allow  a  motion  for 
leave  to  plead  double,  if  it  will  be  a  surprise  to  the  other  siile.  \'iin  Ilollon  v.  Lrwiji,  1  lb. 
12.  A  motion  for  leave  to  plead  double,  was  refused  in  a  court  having  no  original  jurisdic- 
tion, only  an  appellate  one.  Frazer  v.  M'Lcod,  2  Bay,  407.  Double  pleading  is  allowed  in 
real  as  well  as  in  personal  actions.  Gordon  v.  Pierce,  2  Fairf.  213.  It  seems  they  must  be 
signed  by  counsel.  Salterlee  v.  Salterlee,  8  Johns.  327.  On  a  motion  for  leave  to  reply  double, 
it  must  be  shown  that  the  matters  sought  to  be  replied  are  true.  MXnir  v.  Bronson,  G  Wend. 
534.  Under  leave  of  double  pleading  to  ^  writ  of  entry  sxtr  disseizin,  the  tenant  pleaded,  first, 
nul  disseizin;  second,  in  bar,  that  the  demand.ant was  never  seized  modo  et  forma,  &c.  Upon 
demurrer,  the  second  plea  was  adjudged  bad,  as  putting  in  issue  a  fact  which  must  be 
proved  under  the  first  issue.   Martin  v.  Woods,  6  Mass.  C. 

Vol.  I.— 41 


g54  OF  PLEADING  SEVERAL  MATTERS, 

to  different  parts  of  the  declaration. (i^)  And  now,  by  the  statute  for  the 
amendment  of  the  law,(cZ)  "the  defendant  or  tenant  in  any  action  or  suit,  or 
any  phiintiff  in  replevin,  in  any  court  of  record,  may,  -with  the  leave  of  the 
same  court,  plead  as  many  several  matters  thereto,  as  he  shall  think  neces- 
sary for  his  defence :  Provided  nevertheless,  that  if  any  such  matter  shall, 
upon  a  demurrer  joined,  be  judged  insufficient,  costs  shall  be  given  at  the 
discretion  of  the  court ;  or  if  a  verdict  shall  be  found,  upon  any  issue  in 
the  said  cause,  for  the  plaintiff  or  demandant,  costs  shall  be  also  given  in 
like  manner  ;  unless  the  judge  who  tried  the  said  issue,  shall  certify  that 

the  said  defendant  or  tenant,  or  plaintiff  in  replevin,  had  a  pro- 
[  *655  ]  bable  cause  to  plead  such  matter,  *which  upon  the  said  issue  shall 

be  found  against  him.  Provided  also,  that  nothing  in  this  act 
shall  extend  to  any  Avrit,  declaration,  or  suit  of  appeal  of  felony,  &c.,  or  to 
any  writ,  bill,  action  or  information,  upon  any  penal  statute. "(a) 

Upon  this  statute  it  has  been  holden,  that  the  defendant  shall  not  be  al- 
lowed to  plead  any  pleas  that  are  manifestly  inconsistent,  such  as  non  as- 
sitmpsit,{b)  or  no7i  est  factum, (cc)  to  the  whole  declaration,  and  &  tender  as 
to  part ;  for  one  of  these  pleas  goes  to  deny  that  the  plaintiff  ever  had  any 
cause  of  action,  and  the  other  partially  admits  it.  So,  the  defendant  is  not 
allowed  to  plead  non  assumpsit,  and  the  stock-jobbing  act  ',{dd)  or  a  plea  of 
alien  enemy,  with  non  assumpsit,{e)  a  tender, (/)  or  other  inconsistent 
matter.  (^)  And  he  shall  not  plead  several  matters  which  require  different 
trials,  as  in  dower,  ne  ungues  ac€oup>le  en  loyal  matrimonie  and  a  mort- 
gage, or  ne  ungues  seisie  gue  doiver  ;{h)  for  the  first  matter  is  triable  by  the 
bishop,  and  the  others  by  a  jury,  and  if  the  former  be  found  against  the  de- 
fendant, the  judge  cannot  certify  that  he  had  a  probable  cause  of  pleading  it. 
The  statute  for  pleading  double  does  not  extend  to  any  action  for  informa- 
tion upon  a  penal  statute  :(i)  And  as  the  king  is  not  bound  by  this  statute, (A;) 
the  defendant  cannot  plead  double  in  an  information  of  intrusion  ;(Z)  in  guare 
impedit,  where  the  king  is  a  party  ;(?w)  or  in  scire  facias,  for  a  bond  debt 
to  the  king  :(?i)  nor  could  he  plead  double,  till  the  statute  32  Geo.  III.  c. 
58,  in  an  information  in  nature  of  guo  ivarranto.{o) 

In  the  Common  Pleas,  the  defenctant  was  not  formerly  allowed  to  plead, 
in  assumpsit,  non  assumpsit  and  infancy,(jo)  or  a  release,(9')  or  set-off  ;(r) 
in  debt  on  bond,  71011  est  factum  and  solvit  ad  or  post  diem  ;{s)  in  debt  for 

(c)  Co.  Lit.  303,  a.  {d)  4  Ann.  c.  16,  §  4,  5. 

{a)  4  Anne,  c.  16,  g  7. 

{b)  Kaye  y.  Patch,  T.  27  Geo.  III.  K.  B.  4  Durnf.  &  East,  104.  2  Blac.  Rep.  723.  3  Wils. 
145,  S.  C. 

{cc)  5  Durnf.  &  East,  97.    4  Taunt.  459.  {dd)  1  Bos.  &  Pul.  222. 

(e)  2  Blac.  Rep.  1326.  Palmer  t.  Henderson,  E.  21  Geo.  III.  C.  P.  1  Bos.  &  Pul.  222,  (a). 
2  Bos.  &  Pul.  72.     10  East,  327. 

(/)  10  East,  326.  (^r)   12  East,  206. 

{h)  Com.  Rep.  148.     2  Blac.  Rep.  1157,  1207,  but  see  2  Wils.  118,  semb.  contra. 

(i)  I  7,  Supra;  and  see  1  Barnard,  K.  B.  17  Cas.  temp.  Hardw.  262.  2  Str.  1044,  S.  C. 
4  Durnf.  &  East,  701,  K.  B.  Pr.  Reg.  318.  Barnes,  15,  353,  365.  2  Wils.  21.  1  Bos.  & 
Pul.  222,  C.  P. 

{k)  1  P.  Wms.  220.     Forrest,  57. 

(/)  Attorney  General  v.  Allgood,  Parker,  1.  Rex  v.  Sir  C.  W.  Phillips,  H.  20.  Geo.  II. 
Parker,  16. 

(m)  Rex  V.  Archbishop  of  York,  Willes,  533.     Barnes,  353,  S.  C. 

(n)  Forrest,  57  ;  but  see  Bunb.  96.  Com.  Rep.  422,  semb.  contra;  which  cases,  however, 
were  in  effect  over-ruled  by  the  case  of  the  Attorney  General  v.  Allgood,  Parker,  1. 

(o)  1  P.  Wms.  220.     Parker  10.  (p)  Barnes,  363. 

(?)  Cas.  Pr.  C.  P.  154.     Barnes,  328,  S.  G.  (r)  Barnes,  333. 

(s)  Id.  363.    2  Blac.  Rep.  905,  993. 


OF  PLEADING  SEVERAL  MATTERS.  655 

rent,  nil  debet  and  nil  hdniit  in  tcncmentis  ;{t)  in  trover^  not  guilty  and 
the  bankruptcy  of  tlic  plaintiff  ;(m)  or  in  trcsjmss,  not  guilty  and  a  justifica- 
tion,(x-)  or  release  of  a  particular  trespass  :{//)  But  of  late  years,  the  court  has 
been  less  strict  than  formerly,  in  the  construction  of  the  act  of  parliament 
for  pleading  double,  Avhich  is  general,  and  a  remedial  law  :(3)  and 
*accordingly  it  is  now  settled,  that,  with  the  exceptions  mentioned  [  *G56  ] 
in  the  preceding  paragraph,  the  defendant  may  in  general  plead  as 
many  different  matters  as  lie  shall  think  necessary  for  his  defence,  though 
they  may  appear  at  first  view  to  be  contradictory  or  inconsistent ;  as  7ion 
assumpsit  and  the  statute  of  limitations,(«)  or  7ion  est  factum  and  the  sta- 
tute of  gaming,  or  usury  ;[b)  or  in  trespass,  not  guilty  and  a  justification, (c) 
accord  and  satisfaction,  or  tender  of  araends,(d!)  &c.  So,  he  may  plead  non 
assumpsit  and  infancy,  or  a  release,(6')  or  not  guilty  and  libcrum  tcnemcn- 
turn  ;(/)  though  as  infancy  may  be  given  in  evidence  upon  non  assumpsit, 
and  liberum  tenementum  upon  not  guilty,  the  pleading  of  these   matters 
specially  seems  to  be  unnecessary.  And  the  plaintiff  in  replevin  may  plead 
in  bar  to  the  defendant's  avowry  or  cognizance,  that  he  did  not  hold   as 
tenant,  and  no  rent  in  arrear,  "with  a  plea  of  infancy.((/)  But,  in  an  action  on 
a  deed  made  beyond  seas,  the  court  of  Common  Pleas  would  not  permit  the 
defendant  to  plead  non  est  factum,  where  he'relied  in  some  of  his  pleas,  on 
matters  of  defence  which  necessarily  imported  the  execution  of  the  deed.(/i) 
So,  in  scire  facias  on  a  judgment,  the  defendant   having  moved  to  plead 
several  matters,  viz.  first,  payment ;  secondly,  that  the  judgment  Avas  fraudu- 
lent ;  and  thirdly,  that  it  was  on  a  warrant  of  attorney  fraudulently  ob- 
tained ;  the  court  refused  to  allow  the  three  pleas  to  be  pleaded,  and  put  the 
defendant  to  his  election. («')     And,  in  a  late  case,(/c)  the  court  of  Common 
Pleas  gave  out,  that  for  the  future,  inconsistent  pleas  should  not  be  allowed 
unless  accompanied  with  an  affidavit,  to  show"  that  they  were  necessary  to 
the  justice  of  the  cause.     And  where  the  plaintiff  in  quareimpedit,  having 
traced  his  title  through  a  period  of  two  centuries,  and  the  defendant  having, 
in  forty-tliree  pleas,  taken  issue  on  every  allegation  in  the  declaration, 
though  the  plaintiff's  claim  rested  solely  on  the  validity  of  an  ancient  deed, 
and  the  defendant  could  have  no  writ  to  the  bishop,  unless  he  succeeded  in 
setting  it  aside  ;  the  court  of  Common  Pleas,  after  the  declaration  had  been 
twice  amended,  and  after  a  trial  had,  rescinded  the  rule  to  plead  several 
matters.   4  Bing.  525. 

By  the  statute  32  Geo.  III.  c.  58,  it  is  enacted,  that  "  it  shall  be  lawful 
for  the  defendant,  to  any  information  in  the  nature  of  a  quo  warranto,  fur 
the  exercise  of  any  office  or  franchise  in  any  city,  borough,  or  town  corpo- 
rate, to  plead  that  he  had  first  actually  taken  upon  himself,  or  held  or  exc- 

{i)  Cas.  Pr.  C.  P.  154.    Barues,333,  S.  C. 

(«)  names,  360.  (x)  Cas.  Pr.  C.  P.  154.     Banic.%  33!). 

{ij)  15arnc3,  351.  (z)  Id.  347,  8. 

(a)  Barnes,  3G1.  \b)  2  Bos.  &  PuL  12;  niul  sec  fd.  54D. 

(c)  Barnes,  355,  6;  3G5.  (</)  Id.  360.    2  Blac.  Hep.  1093. 

(c)    Wrhjht  V.  Oregory,  T.  32  Geo.  IIL  C.  P.  Imp.  C.  P.  7  Ed.  251. 

(/)  Gas.  Pr.  C.  P.  153.     Barne.s,  336,  S.  C.     Id.  356. 

\g)  5  Taunt.  340.    1  Marsh.  74,  S.  C. 

(A)  3  Taunt.  316.  (()  2  Bing.  325.     9  Moore,  694,  S.  C. 

\k)  3  Bing.  635  ;  and  see  1  Moore  &  P.  345,  where  it  was  said  b}-  Mr.  Justice  Park,  that 
in  future  the  Court  would  recjuire  the  substance  of  the  pleas  to  be  stated  to  thcni,  la  order 
to  ascertain  wlietiier  they  were  fit  pleas  to  be  put  on  the  record  or  not ;  and  that  if  a  party 
were  under  terms  to  plead  issuably,  the  court  always  exercised  a  control  over  the  pleas  in- 
tended to  be  filed,  and  imposed  terms  accordingly. 


ggg  OF  PLEADING  SEVERAL  MATTERS. 

cutcd  the  office  or  franchise  which  is  the  subject  of  such  information,  six 
years  or  more  before  the  exhibiting  of  such  information,  &c. :  which  plea 
shall  and  may  be  pleaded  either  singly,  or  together  with  and  besides  such 
plea  as  he  might  have  lawfully  pleaded  before  the  passing  of  the  act ;  or  such 
several  pleas  as  the  court  on  motion  shall  allow."  In  the  construction  of 
which  statute  it  has  been  holden,  that  the  legislature  intended  to  give  a  de- 
fendant in  such  a  proceeding,  the  liberty  of  pleading  several  pleas,  whether 
with  or  without  the  plea  of  the  statute  of  limitations  ;  the  concluding  words 
of  the  act  being,  "  or  such  several  pleas,  &c."(Z)  But  this  statute,  as  well 
as  the  9  Ann.  c.20.  §  4,  &c.  is  confined  to  corporate  offices  :{m)  and  it 
[  *657  ]  does  not  *apply  where  there  is  a  continuing  incompatibility  ;  as 
where  a  burgess  has  accepted  the  office  of  town  clerk,  which  he 
still  exercises. («)  And  for  preventing  the  vexation  and  expense  occasioned 
to  defendants,  in  informations  in  the  nature  of  quo  ivarranto,  by  the  prac- 
tice of  raising  issues  upon  various  matters  distinct  from  the  ground  on 
which  the  information  was  granted  by  the  court ;  it  is  a  rule,  (5)  "  that  the 
objections  intended  to  be  made  to  the  title  of  the  defendant,  shall  be  speci- 
fied in  the  rule  to  show  cause  ;  and  that  no  objection,  not  so  specified,  shall 
be  raised  by  the  prosecutor  on  the  pleadings,  without  the  special  leave  of 
the  court,  or  of  some  judge  thereof." 

In  order  to  plead  two  or  more  matters,  in  the  King's  Bench,  it  is  not  ne- 
cessary that  an  affidavit  should  be  made  of  the  facts  ;  but  the  court  formerly 
expected  to  be  informed  what  the  matters  were,  that  were  desired  to  be 
pleaded,  in  order  to  judge  whether  they  were  proper  ;(c)  though  now,  the 
motion  for  leave  to  plead  several  matters  is,  in  that  court,  become  a  mere 
motion  of  course,  which  only  requires  counsel's  signature :  And  the  motion 
paper  being  delivered  to  the  clerk  of  the  rules,  he  will  draw  up  a  rule  abso- 
lute ih.ereon,[d)  a  copy  of  which  should  be  delivered  with  the  pleas,  if  it  be 
then  ready ;  or  otherwise  the  plaintiff's  attorney  should  have  notice,  that 
instructions  have  been  given  for  the  rule,  and  that  a  copy  will  be  delivered 
as  soon  as  it  is  drawn  up.  In  the  Common  Pleas,  the  rule  to  plead  several 
matters  is  drawn  up  by  the  secondaries  ;(e)  and  they  will  draw  it  up  as  a 
matter  of  course,  on  a  brief  or  motion  paper  signed  by  a  serjeant,  without  a 
rule  to  show  cause,  for  leave  to  plead  the  following  pleas,  viz.  in  assumpsit, 
non  assumpsit,  and  non  assumpsit  infra  sex  annos,  or  a  release,  or  set- 
off; non  assumpsit  as  to  part,  with  a  tender  and  set-off;  non  assumpsit 
and  a  discharge  under  an  insolvent  act,  or  plene  administravit,  generally 
or  specially ;  j^^&ne  administravit  and  a  set-off,  or  7ie  unques  executor  and 
■plene  administravit :  in  debt  on  bond,  non  est  factum  and  infancy  or  du- 
ress, or  solvit  ad  diem  and  a  set-off;  and  in  trespass,  not  guilty  and  lihe- 
rum  te7iementum,  son  assault  demesne,  molliter  manus  imposuit,  or  a 
tender  of  amends. (/)  But  in  other  cases,  there  must  be  a  rule  to  show 
ca.use,  why  the  defendant  should  not  have  leave  to  plead  the  several  matters 
intended  to  be  pleaded ;(/)  which  rule  is  drawn  up  by  the  secondaries,  on 
a  brief  or  motion  paper  signed  by  a  serjeant :  And  formerly,  where  the  pleas 

{I)  8  Diirnf.  &  East,  467. 

(to)  9  East,  469 ;  but  see  5  Barn.  &  Aid.  771.    1  DoTvl.  &  Rjl.  438,  S.  C.   And  see  further, 
as  to  pleading  several  pleas,  1  Chit.  PL  4  Ed.  477,  &c.     Steph.  PI.  288,  &c. 
{a\  2  Chit.  Rep.  371. 
(6)  R.  H.  7  &  8  Geo.  IV.  K.  B.     6  Barn.  &  Cres.  267. 

R.  T.  5  &  6  Geo.  II.  (h)  K.  B.  {d)  Append.  Chap.  XXVII.  §  11. 

Id.  I  12.  (/)  Imp.  C.  P.  7  Ed.  251. 


|:J 


OF  PLEADING  SEVERAL  MATTERS.  G57 

were  contradictory,  as  not  guilty  and  a  license  or  general  release  in  tres- 
pass, the  defendant  was  obliged  to  make  it  appear  by  affidavit,  that  it  was 
necessary  for  his  deft-nce  to  insist  upon  both.Q/)  So,  an  affidavit  Avas  re- 
quired to  be  made  by  an  executor  or  administrator,  that  he  had  fully  ad- 
ministered, and  by  an  heir,  that  he  had  nothing  by  descent,  before  he 
could  move  to  ytlo-dd  plow  administravit,  or  lu'cns  jn-r  discc7it  :{h) 
*but  now,  an  affidavit  is  dispensed  with  in  these  cases  ',{aa)  and  [  *G58  ] 
the  court  Avill  not  decide  on  the  necessity  of  pleas,  or  refer  them 
to  the  prothonotary,  where  the  question  on  wliich  they  depend,  appears,  on 
the  face  of  them,  to  be  one  of  doubt  and  nicety .{bb) 

The  motion  for  leave  to  plead  several  matters  cannot  be  made,  in  the 
Common  Pleas,  till  the  defendant  has  appeared  ;((•)  but  afterwards,  it  may 
be  made  at  any  time  before  judgment :((/)  and  if  the  time  for  pleading  be 
nearly  expired,  the  court,  on  the  same  motion,  will  allow  the  defendant 
further  time,  on  putting  the  plaintiff  in  as  good  a  situation. (c)  The  rule 
nisi  being  drawn  up,  a  copy  of  it  should  be  made,  and  served  on  the  plain- 
tiff's attorney,  showing  him  the  original  rule  ;  and  on  the  <lay  of  showing 
cause,  the  court,  on  an  affidavit  of  service,  will  make  the  rule  absolute  :(/) 
which  latter  rule  being  drawn  up  by  the  secondaries,  a  copy  thereof  should 
be  made,  and  annexed  to  the  pleas,  before  they  are  filed  or  delivered  ;(c) 
or,  if  filed  or  delivered  before  the  rule  is  made  absolute,  it  is  deemed  suffi- 
cient in  this  court,  to  annex  a  copy  of  the  rule  nisi  to  the  pleas,  and  to  in- 
dorse a  notice  thereon,  that  the  rule  absolute  will  be  served,  as  soon  as  it  is 
drawn  up. (_</</)  In  vacation,  a  judge  on  summons  will  make  an  order  for 
the  clerk  of  the  rules  in  the  King's  Bench,  or  secondaries  in  the  Common 
Pleas,  to  draw  up  the  rule,  on  producing  a  brief  or  motion  paper,  signed  by 
a  counsel  or  serjeant,  for  that  purpose. (///t)  In  the  King's  Bench,  if  several 
pleas  be  filed,  to  the  whole  or  part  of  a  declaration,  Avithout  a  rule  to  plead 
several  matters  being  drawn  up,  or  instructions  given  for  it  to  the  clerk  of 
the  rules,  they  arc  considered  as  a  nullity,  and  the  plaintiff  may  sign  judg- 
ment ;(i)  or,  in  the  Common  Pleas,  he  may  apply  to  the  court,  to  strike  out 
one  of  them  :[Jc)  But  if  a  rule  be  obtained,  and  the  pleas  put  in,  without 
saying  bi/  leave  of  the  court,  it  is  only  an  irregularity,  or  at  most  cause  of 
special  demurrer  for  duplicity.(Z)  And  where  the  plaintiff  signed  judgment 
as  for  want  of  a  plea,  because  the  rule  to  plead  several  matters  was  erro- 
neously entitled,  the  court  of  Common  Pleas  set  aside  the  judgment,  with- 
out costs ;  affidavit  being  made  that  the  pleas  Avere  true,  and  that  the 
defendant  had  a  good  defence. (??2) 

Respecting  costs,  upon  the  statute  of  Anne,  the  intention  of  the  legisla- 
ture appears  to  have  been,  that  if  there  be  several  matters  pleaded,  some 
of  which  are  found  for  the  plaintiff,  he  shall  be  entitled  to  the  costs  of 

(g)  Barnes,  351.  (/<)  Cas.  Pr.  C.  P.  154.    Barnes,  332,  S.  C. 

(aa)  Barnes,  347,  8;  364. 

(bb)   1  Bing.  66.     7  Moore,  351,  S.  C  ;  but  see  3  Bing.  635.    Ante,  656. 

(f)  Barnes,  331.  (rf)  Cas.  Pr.  C.  P.  154.     Barnes,  329,  S.  C. 

(e)  Imp.  C.  P.  7  Efl.  252.  (/)  Append.  Chap.  XXVII.  §  13. 

(f/f/)  Imp.  C.  P.  7  Ed.  252.     3  Brod.  &  Bing.  256.     7  Moore,  66,  S.  C. 

(M)  Imp.  C.  P.  7  Ed.  255. 

(i)  Per  Buller,  J.  in  Bedford^-  Galfield,  II.  26  Geo.  III.  K.  B.     Ante,  566,  7. 

(k)   I  Bos.  &  Pul.  415.     Ante,  567. 

(i)  1  Wils.  219;  and  see  Cowp.  500,  501,  where  the  court  held,  that  thougii  an  informa- 
tion against  several  defendants,  for  usurping  several  offices,  cau  only  be  filed  ty  leave  of  the 
court,  yet  that  leave  need  not  appear  on  the  record. 

(m)  1  Bing.  187.     7  Moore,  599,  S.  C. 


658 


OF  PLEADING  SEVERAL  MATTERS. 


r  *QdO  ]  tliose,('»)  notwithstanding  other  matters  are  found  for  the  *defend- 
ant,(<')  Avhich  entitle  him  to  judgment  upon  the  whole  record ; 
unless  the  judge,  before  whom  the  cause  was  tried,  shall  certify  that  the 
defendant  had  a  probable  cause  to  plead  the  matters  which  are  found 
a<Tainst  him.  That  this  is  the  true  construction  of  the  statute  will  appear 
from  the  following  cases. 

In  tresjyciss,  the  defendant  pleaded  not  guilty  and  several  justifications ; 
upon  the  trial,  the  plaintifl"  not  proving  his  possession  of  the  locus  in  quo^ 
the  defendant  had  a  verdict ;  and,  by  direction  of  De7nson,  J.,  the  verdict 
was  entered  upon  the  general  issue  only ;  upon  which  there  was  a  motion 
for  a  venire  de  novo  :  but  the  court  refused  the  motion,  saying,  the  verdict 
was  complete,  and  determined  the  cause  :  that  the  plaintiff  was  not  entitled 
to  damages,  though  they  said  he  might  have  insisted  to  have  a  verdict 
entered  on  the  other  issues,  for  the  sake  of  costs,  which  he  would  be 
entitled  to,  unless  the  judge  certified  that  the  defendant  had  probable 
cause  to  plead  such  plea.(/>) 

When  the  defendant  pleads  not  guilty,  and  a  justification  to  which  the 
plaintiff  demurs,  and  the  plaintiff  has  judgment  on  the  demurrer,  but  is 
nonsuited  on  the  plea  of  not  guilty,  he  shall  nevertheless  be  allowed  the 
costs  of  the  demurrer,  which  shall  be  deducted  out  of  the  costs  allowed  to 
the  defendant. (e)  And  if  one  of  several  pleas,  pleaded  by  the  defendant, 
be  adjudged  bad,  on  a  demurrer  to  the  plaintiff's  replication,  the  plaintiff 
is  entitled  to  have  the  costs  of  those  pleadings  deducted  from  the  costs 
taxed  for  the  defendant  upon  the  postea,  if  afterwards,  upon  the  trial  of 
the  issues  joined  on  the  other  pleas,  the  defendant  should  have  a  verdict ; 
even  though  it  should  appear,  on  the  Avhole  of  the  record,  that  the  plaintiff 
had  no  cause  of  action. (c?)  But  if  the  plaintiff  take  issue  on  several  pleas, 
one  of  which  is  insufficient  in  law,  and  has  a  verdict  on  all  the  issues, 
except  that  joined  on  the  insufficient  plea,  which  is  found  for  the  defendant, 
and  afterwards  judgment  is  entered  for  the  plaintiff,  still  he  shall  not  be 
allowed  any  costs  upon  the  issue  found  for  the  defendant. (e)  And  it  has 
been  resolved,  at  a  meeting  of  all  the  judges,  that  if  there  be  a  certificate 
upon  the  43  IJliz.,  the  plaintiff  shall  not  have  the  costs  of  any  plea  pleaded 
with  leaA^e  of  the  court ;  although  the  issue  thereupon  joined  be  found  for 
liim,  and  the  judge  have  not  certified,  that  the  defendant  had  a  probable 
cause  for  pleading  the  matter  therein  pleaded. (/) 

In  an  action  for  criminal  conversation,  the  defendant  pleaded  two  pleas, 

vis.  not  guilty,  and  not  guilty  within  six  years  ;  on  the  former  the  plaintiff 

joined  issue,  and  obtained  a  verdict,  but  to  the  latter  there  was  a  demurrer, 

and  judgment  against  him  ;  and  it  was  liolden,  that  the  defendant 

[  *660  ]  ^should  have  the  costs  of  the  demurrer ;  but  upon  the  trial,  there 

should  be  no  costs  on  either  side.(rta) 

(n)  In  Sai/er's  Law  of  Costs,  p.  223,  it  is  said,  he  sliall  hare  the  costs,  not  only  of  those 
matters,  but  also  of  the  others,  notwithstanding  they  are  found  for  the  defendant.  But  this 
seems  to  be  a  mistake  ;  for  the  defendant  being  entitled  to  judgment  upon  the  matters  found 
for  him,  is  consequently  entitled  to  the  cost  of  them.     11  East,  263. 

(a)   1  East,  583. 

(6)  Bui.  Ni.  Pri.  335 ;  and  see  1  Wils.  44.  Barnes,  4G1,  2.  2  H.  Blac.  393,  304,  (a).  2 
Barn.  &  Aid.  546. 

(c)  Barnes,  136.  (d)  2  Durnf  &  East,  391. 

(e)  1  Durnf.  &  East,  266.    2  Bos.  &  Pul.  3l6,  accord.;  but  see  Barnes,  133,  266. 

(/)  Say.  Rep.  260.  I  Ken.  245,  S.  C.  7  East,  583  ;  and  see  3  Brod.  &  Biug.  117.  1  Barn. 
&  Ores.  278. 

(aa)  2  Bur.  753.    2  Wils.  85.    Say.  Costs,  221,  S.  C.    The  authority  of  this  case  seems  to 


OF  PLEAS  IN  GENERAL.  660 

The  avoioant  or  defendant  In  replevin,  tliou<^h  not  within  the  words,  is 
phiinly  within  the  ineauin<^  of  the  statute  4  Ann.  c.  10.(^6)  And  accord- 
ingly, where  there  are  several  avowries  or  ])leas  in  bar  in  rejAevin,  and 
some  of  the  issues  joined  thereon  are  found  fur  the  plaintiff,  and  some  for 
the  defendant,  the  party  for  whom  the  issues  are  found,  which  entitle  him 
to  judgment  on  the  whole  record,  shall  have  the  general  costs  of  the  cause; 
but  the  other  party  shall  be  allowed  to  deduct  therefrom,  the  costs  of  the 
issues  found  for  him,  uidess  the  judge  who  tried  the  cause  certify,  that  the 
party  entitled  to  judgment  had  a  probable  cause  to  make  the  avowries,  or 
plead  the  pleas,  upon  which  such  issues  were  joined  •.{ec)  And  in  that  case, 
the  officer  of  the  court,  in  taxing  the  costs,  will  allow  the  party  for  whom 
the  issues  are  found,  not  only  the  costs  of  the  pleadings,  but  also  of  such 
parts  of  the  briefs  and  expenses  of  witnesses,  as  relate  to  the  trial  of  those 
issues  ;(fZ)  and  he  will  not  allow  the  other  party  the  costs  of  such  parts  of 
the  pleadings,  and  of  the  briefs  and  witnesses,  as  arc  not  apjdicalde  to  the 
points  on  Avhich  the  verdict  proceeds. (c)  On  the  other  hand,  if  the  judge 
who  tried  the  cause  certify,  that  the  party  entitled  to  judgment  had  a 
probable  cause  for  making  the  avowries,  or  pleading  the  pleas,  the  issues 
on  which  are  found  against  him,  the  officer  is  not  to  deduct  the  costs  of 
those  issues :(/)  And,  in  the  Common  Pleas,  if  a  defendant  in  rejAcvin, 
after  trial  and  verdict  for  the  plaintiff,  obtain  judgment  non  obstante  vere- 
dicto, in  consequence  of  the  plaintiff's  pleas  in  bar  being  bad,  he  is  not 
entitled  to  any  costs  upon  the  pleadings  subsequent  to  the  pleas  in  bar, 
because  he  should  have  demurred  to  them.((/)  The  certificate  of  probable 
cause  is  not  required  to  be  made  in  court,  at  the  trial  of  the  cause  :{Ji) 
and  where  the  judge  refuses  to  grant  it,  the  court  have  not  a  discretionary 
poAver,  whether  they  will  allow  the  plaintiff  any  costs  at  all ;  but  are  bound 
by  the  statute  to  allow  him  some  costs,  though  the  quantum  is  left  to  their 
discretion,  (e) 


The  general  qualities  and  conditions  of  a  plea  are,  first,  that  it  be  con- 
formable to  the  count  ;(/c)  and,  taken  collectively,  answer  the  whole  decla- 
ration :[a]  For  if  any  part  of  the  declaration  be  left  unanswered,  it  operates 

be  questionable,  as  to  the  costs  of  the  trial,  from  a  similar  one  that  -was  dilfcrcntly  deter- 
mined, in  the  court  of  Common  Picas,  (Barnes,  141,)  as  well  as  from  the  reasoning  that  pre- 
vailed in  several  of  the  foregoing  cases :  and  see  2  Durnf.  &  East,  235. 

[bb)  Doug.  708,  9,  in  notis ;  and  see  Barnes,  144,  146. 

(cc)  Stone  v.  Forsyth,  T.  22  Geo.  III.  K.  B.     2  Durnf.  &  East,  235  ;  and  sec  5  Taunt.  594. 

1  Marsh.  234,  S.  C. 

{d)  2  H.  Blac.  4.'!5.  2  Bos.  &  Vu\.  G8.  5  Taunt.  504.  1  Marsh.  234,  S.  C.  8  Moore, 
239.     1  Bing.  275,  S.  C. 

(e)  2  Bos.  &  I'ul.  335.  (/)  2    Durnf.  &  East,  237. 

(g)  2  Bos.  &  Pul.  376.  (A)  Barnes,  141. 

(i)  Id.  140.     2  Durnf.  &  East,  394,  5.  (k)  Co.  Lit.  303,  a. 

[a]  Every  plea  must  contain  in  itself  an  answer  to  the  whole  declaration,  or  to  one  count 
in  the  declaration,  whichever  it  professes  to  answer.  The  defendant  may  deny  part,  and 
justify  the  residue,  if  he  chooses,  but  the  whole  gravamen  must  be  answered  in  some  way. 
Undtrwood  v.  Campbell,  13  Wend.  78.  A  plea  which,  at  its  commencement,  purports  to  be 
an  answer  to  the  whole  declaration,  but  answers  only  a  part  of  it,  is  bad.  Kevins  v.  Keeler, 
G  Johns.  C5.  Gillespie  v.  Thomas,  15  Wend.  404.  JIallet  v.  Holmes,  18  Johns.  28.  Loder 
V.  rhelps,  13  Wend.  40.     Van  Ne.ts  v.  Hamilton,  19  Joiins.  349.    Taylor  v.  Hank  of  Kentucky, 

2  J.  J.  Marsh.  504.  Slocum  v.  Dexpard,  8  Wend.  015.  llikok  v.  Coales,  2  Wend.  419.  Posl- 
masler  v.  Reeder,  4  Wash.  C.  C.  078.  Farquhar  v.  Collins,  3  A.  K.  Marsh.  31.  And  is  sub- 
ject to  a  demurrer.     Frink  v.  King,  3  Scam.  144.     Snyder  v.  Gaither,  3  Scam.  91.     Warner 


QQQ  OF  PLEAS  IN  GENERAL. 

as  a  discontinuance.  If  a  plea  begin  as  an  answer  to  the  wliole, 
[  *661  ]    but  in  *truth  the  matter  pleaded  be  only  an  answer  to  part,  or 

vice  ve)'sd,[a)  the  whole  plea  is  naught,  and  the  plaintiff  may 
demur  :{h)  but  if  a  plea  begin  only  as  an  answer  to  part,  and  be  in  truth 
but  an  answer  to  part,  it  is  a  discontinuance,  and  the  plaintiff  must  not 
demur,  but  take  his  judgment  for  the  part  unanswered,  as  by  nil  dicit : 
for  if  he  demur,  or  plead  over,  the  whole  action  is  discontinued. (c)  Se- 
condly, the  plea  at  common  law  should  be  sioigle,  consisting  only  of  one 
fact,  or  of  several  facts  making  together  one  point ;  for  if  a  plea  contain 
duplicity,  or  allege  several  distinct  matters,  which  require  several  answers 
to  the  same  thing,  it  is  ha.d.(dd)  Thirdly,  it  should  be  certain,{ee)  in  point 
of  form  as  well  as  substance :  but  certainty  to  a  common  intent  is  sufl5- 
cient  ;{ff)  and  that  which  is  apparent  to  the  court,  by  necessary  collection 
out  of  the  record,  or  is  necessarily  implied,  need  not  be  expressed  ;{gg)  as 
in  setting  forth  the  feoffment  of  a  manor,  it  is  unnecessary  to  state  livery 
and  attornment.  (7i/i)  So,  that  which  is  alleged  by  way  of  conveyance,  or 
inducement  to  the  substance  of  the  matter,  need  not  be  so  certainly  alleged 
as  that  which  is  the  substance  itself.  (/)  Fourthly,  every  plea,  for  the  sake 
of  certainty,  must  be  direct  and  positive,  and  not  by  way  of  argument  or 
rehearsal. (Z:;)  Fifthly,  it  should  be  so  pleaded,  as  to  be  capable  of  trial, 
by  the  court  upon  demurrer  or  mil  tiel  record,  or  by  the  jury  upon  an 
issue  in  fact.(^)  Sixthly,  it  should  be  tr^ie,  and  capable  of  proof;  for 
truth  is  said  to  be  the  goodness  and  virtue  of  pleading,  as  certainty  is  the 
grace  and  beauty  of  it.(ni)  Seventhly,  the  plea  shall  be  taken  most 
strongly  against  him  that  pleadeth  it ;  for  every  man  is  presumed  to  make 
the  best  of  his  own  case.(w)  But  lastly,  surplusage  shall  never  make  the 
plea  vicious,  except  where  it  is  repugnant,  or  contrary  to  matter  prece- 
dent, (o) 

In  many  cases,  the  law  doth  allow  general  pleading,  for  avoiding  prolixity 
and  tediousness  ;  and  the  particulars  shall  come  on  the  other  side.  (^2^)  Thus, 
when  a  man  is  bound  to  perform  all  the  covenants  in  an  indenture,  if  they 

(a)  2  Bos.  &  Pul.  427  ;  and  see  2  Chit.  Rep.  303.  2  Barn.  &  Cres.  477.  3  Dowl.  &  Ryl. 
647,  S.  C. 

(b)  2  Chit.  Rep.  303.     2  Barn.  &  Cres.  477.     3  Dowl.  &  Rvl.  647,  S.  C. 

(c)  1  Salk.  179.  80.  Gilb.  C.  P.  155,  157.  Willes,  480.  1  H.  Blac.  645.  1  Bos.  &  Pul. 
411;  and  see  1  Wms.  Saund.  5  Ed.  28,  (3).  1  Chit.  Rep.  132,  (a).  1  Barn.  &  Cres.  465,  6, 
7.     2  Dowl.  &  Ryl.  471,  2,  3,  S.  C.     1  Moore  &  P.  102.     4  Bing.  428,  S.  C. 

(dd)  Co.  Lit.  304,  a.     Staph.  PI.  264,  &c. ;  but  see  1  Moore  &  P.  102.     4  Bing.  428,  S.  C. 

(ee)  Co.  Lit.  303,  a.  Steph.  PI.  342,  &c.  And  as  to  certainty  o{  place,  see  Steph.  PI. 
297,  &c. ;  certainty  of  time.  Id.  311,  &c. ;  quantity,  quality,  and  value.  Id.  314,  &c. ;  and  the 
names  of  persons.     Id.  319,  &c. 

(f)  Co.  Lit.  303,  b.     Steph.  PI.  380,  81.  (ffff)  Co.  Lit.  303,  b.     Steph.  PI.  357,  &c. 

(hh)  For  the  cases  on  this  subject,  see  2  Wms.  Saund.  5  Ed.  305,  a.  (13). 

(i)  Co.  Lit.  303,  a.     Steph.  PI.  374,  &c. 

(k)  Co.  Lit.  303,  a,  304,  a.     Hob.  295.     Steph.  PI.  384,  &c. 

(/)  Co.  Lit.  303,  b.     9  Co.  24,  5.     1  Marsh.  207. 

(m)  Plob.  295 ;  and  see  Steph.  PL  444,  &c.  (n)  Co.  Lit.  303,  b. 

(0)  Id.  Ibid.  Steph.  PI.  417,  &c.  And  for  the  several  cases  that  iUustrate  the  above  rules, 
see  Com.  Dig.  tit.  Pleader,  (E.)  &c.     1  Chit.  PI.  4  Ed.  451,  &c.,  463,  &c. 

(p)  Co.  Lit.  303,  b. 

V.  Shelton,  7  Mis.  237.  Adams  v.  itMillan,  7  Port.  73.  Smalley  v.  Anderson,  2  Monr.  56. 
Tappan  \.  Prescott,  9  N.  Hamp.  531.  Latin  v.  Vail,  17  Wend.  188.  Betile  v.  Wilso7i,  14 
Ohio,  257.  Grifith  v.  Fishchill,  4  Blackf.  427.  Foley  v.  Cou-gill,  5  Blackf.  18.  White  v.  Conover, 
5  Blackf.  462.  Hawk  v.  Pollard,  6  Blackf.  108.  Ilickleri  v.  Crossjean,  6  Blackf.  351.  Desh- 
ler  V.  Hodges,  5  Ala.  509.     Plant  V.  Wormager,  5  Blackf.  236.    Rust  v.  Smith,  5  Blackf.  352. 


OF  THE  PLEA,  AND  NOTICE  OF  SET-OFF.  661 

are  all  in  the  affirmative,  he  may  plead  performance  generally  :  but  if  any 
are  in  the  negative,  to  so  many  he  must  plead  specially,  (for  a  negative 
cannot  be  performed,)  and  generally  to  the  rest.  So,  if  any  arc 
*in  the  disjunctive,  he  must  show  which  of  them  he  hath  per-  [  *662  ] 
formed  :[a)  And  if  any  are  to  be  done  of  record,  he  must  show  the 
performance  of  those  specially,  and  cannot  involve  them  in  general  pleading. 
In  setting  forth  a  title,  general  estates  in  fee  simple  may  be  generally 
alleged  ;  but  the  commencement  of  estates  tail,  and  other  particular  estates, 
must  regularly  be  shoAvn,  unless  in  some  cases  where  they  are  alleged  by 
way  of  inducement  :(^>)  and  the  life  of  tenant  in  tail,  or  for  life,  ought  to 
be  averred. (c) 

Every  plea  ought  to  have  its  proper  conclusion  :(d)  When  the  general 
issue  is  pleaded,  or  the  defendant  simply  denies  some  material  fact  alleged 
in  the  declaration,  he  should  conclude  his  plea  by  putting  himself  upon  the 
countr}''  :[r)  but  where  the  plea  advances  new  matter  in  the  affirmative,  the 
defendant  should  conclude  it  with  an  averment,  or  verification  and  prayer 
of  judgment  si  actio  :  or,  in  other  words,  by  professing  himself  ready  to 
verify  the  plea,  and  praying  judgment,  if  the  plaintift"  ought  to  have  or 
maintain  his  action  against  him.  An  avowry  however,  wherein  the  de- 
fendant is  an  actor,  and  which  is  the  nature  of  a  count,  need  not  be 
averred ;(/)  nor  pleas  which  are  merely  in  the  negative,  because  a  nega- 
tive cannot  be  proved.  When  a  judgment,  or  other  matter  of  record,  is 
pleaded,  the  plea  should  conclude  with  a  verification  hy  the  record:  And 
where  in  deht^  the  matter  of  the  plea  shows  that  there  never  was  a  good 
cause  of  action,  as  in  debt  on  bond  against  an  heir,  who  pleads  riens  per 
discent,  the  defendant,  instead  of  concluding  that  the  plaintiff  ought  not  to 
have  his  action,  may  conclude  that  he  (the  defendant,)  ought  not  to  be 
charged  with  the  debt,  by  virtue  of  the  writing  obligatory.(^)  In  an  action 
of  debt,  the  defendant,  in  pleading  a  tender,  ought  to  conclude  his  plea,  by 
praying  judgment  if  the  plaintiff  ought  to  have  or  maintain  his  action,  to 
recover  any  damages  against  him ;  for  in  this  action,  the  debt  is  the  prin- 
cipal, and  the  damages  are  only  accessary  :  but  in  assumpsit,  the  damages 
are  the  principal ;  and  therefore,  in  pleading  a  tender,  the  defendant  ought 
to  conclude  his  plea,  with  a  prayer  of  judgment,  if  the  plaintift'  ought  to 
have  or  maintain  his  action,  to  recover  any  more  or  greater  damages  than 
the  sum  tendered,  or  any  damages  by  reason  of  the  non-payment  thercof.(/i) 
In  pleading  matter  of  estoppel,  the  defendant  in  his  conclusion  ought  to 
rely  upon  it.{i) 


As  the  defence,  in  actions  upon  contracts,  frequently  consist  in  setting 
off  mutual  debt8,[A]  it  may  here  be  proper  to  consider  the  doctrine  of  set- 
fa)  Co.  Lit.  30.^,  b. 
h)  Id.  Ibid.    Stcpb.  PI.  327,  kc.     Ante,  442. 

(c)  Co.  Lit.  303,  b  ;  but  see  1  Wms.  Saund.   5  Ed.  235,  (8,)  as  to  the  difference  between 
tenant  for  life  and  tenant  in  taiL 

(d)  Co.  Lit.  303,  b ;  and  see  1  Chit.  PL  474,  Ac.     Stcph.  PL  392,  &c.,  436,  &c.     And  as 
to  the  mode  of  entitling?  pleadings,  see  Id.  442,  &c. 

(e)  2  Wni.=i.  Saund.  .^i  Ed.  337,  (1).  (f)  Co.  Lit.  303,  a.  (ff)  2  Salk.  516. 
(h)  Id.  622,  3.     1  Ld.  Raym.  254,  S.  C.    Willes,  13.                                  {i)  Co.  Lit.  303,  b. 

[a]  Demands,  to  be  set  off,  must  be  mutual  and  connected,  and  due  in  the  same  right. 
Paine  v.  Whitbridge^  1  M'Cord,  7.     Uurlbui  v.  Ins.  Co.,  2  Sumner,  471.     Shepard\.  Turner, 


QQ2  OF  THE  PLEA,  AND 

off:  and  in  what  cases  it  must  be  pleaded,  or  may  be  given  in  evidence 
under  the  general  issue  :  and  in  the  latter  case,  the  notice  of  set-off. 

*At  common  law,  if  the  plaintiff  was  indebted  to  the  defendant 
[  *663  ]  in  as  much,  or  even  more  than  the  defendant  owed  to  him,  yet  he 
had  no  method  of  striking  a  balance  :  the  only  way  of  obtaining 
relief  was  by  going  into  a  court  of  equity, (a)  To  remedy  this  inconve- 
nience, it  was  enacted  by  the  statute  2  Geo.  II.  c.  22,  §  13,  that  "  where 
there  are  mutual  debts  between  the  plaintiff  and  defendant,  or,  if  either 
party  sue  or  be  sued  as  executor  or  administrator,  where  there  are  mutual 
debts  between  the  testator  or  intestate  and  either  party,  one  debt  may  be 
set  against  the  other  ;  and  such  matter  may  be  given  in  evidence  upon  the 
general  issue,  or  pleaded  in  bar,  as  the  nature  of  the  case  shall  require ; 
so  as  at  the  time  of  pleading  the  general  issue,  where  any  such  debt  of  the 
plaintiff,  his  testator  or  intestate,  is  intended  to  be  insisted  on  in  evidence, 
notice  shall  be  given  of  the  particular  sum  or  debt  so  intended  to  be  in- 
sisted on,  and  upon  what  account  it  became  due  ;  or  otherwise  such  matter 
shall  not  be  allowed  in  evidence  upon  the  general  issue."  This  clause  was 
made  perpetual  by  the  8  Geo.  II.  c.  24,  §  4 :  and  it  having  been  doubted, 
whether  mutual  debts  of  a  differerit  nature  could  be  set  against  each  other, 
it  was  by  the  last-mentioned  statutefi)  further  enacted  and  declared,  that 
"by  virtue  of  the  said  clause,  mutual  debts  maybe  set  against  each  other, 
either  by  being  pleaded  in  bar,  or  given  in  evidence  on  the  general  issue, 
in  the  manner  therein  mentioned,  notwithstanding  that  such  debts  are 
deemed  in  law  to  be  of  a  different  nature ;  unless  in  cases  where  either  of 
the  said  debts  shall  accrue  by  reason  of  a  penalty,  contained  in  any  bond 
or  specialty ;  and  in  all  cases,  where  either  the  debt  for  which  the  action 
hath  been  or  shall  be  brought,  or  the  debt  intended  to  be  set  against  the 
same,  hath  accrued,  or  shall  accrue,  by  reason  of  any  such  penalty,  the  debt 
intended  to  be  set  off  shall  be  pleaded  in  bar ;  in  which  plea  shall  be  shown, 
how  much  is  truly  and  justly  due  on  either  side  :  and  in  case  the  plaintiff 
shall  recover  in  any  such  action  or  suit,  judgment  shall  be  entered  for  no 
more  than  shall  appear  to  be  truly  and  justly  due  to  him,  after  one  debt 
being  set  against  the  other  as  aforesaid. "(c?)  If  an  account  has  been  settled, 
and  balance  struck  between  the  parties,  it  may  be  given  in  evidence  on  the 
general  issue ;  but  a  defendant  cannot  reduce  a  plaintiff's  demand  for 
goods  sold,  by  producing  a  debtor  and  creditor  account,  in  the  hand- 
writing of  the  plaintiff's  clerk,  showing  goods  to  have  been  sold  by  de- 
fendant to  plaintiff,  unless  he  has  pleaded  or  given  a  notice  of  set-off.(c?) 

(a)  2  Bur.  820.     2  Ken.  530,  S.C.     4  Bur.  2220.  (*)  I  5. 

(c)  The  day  after  the  last  act  passed,  Lord  HardwicTce,  Ch.  J.,  delivered  the  opinion  of  the 
court  of  King's  Bench,  that  a  debt  by  simple  contract  might,  by  the  former  act,  have  been 
set  off  against  a  specialty  debt.  Brown  ^  Holyoak,  8  Geo.  II.  Bui.  Ni.  Pri.  179.  Willes, 
262,  3.     2  Blac.  Rep.  871.  {d)   1  Car.  &  P.  133. 

3  M'Cord,  249.  Gregg  v.  James^  Breese,  107.  ArKinney  v.  Bellows,  3  Blackf  31.  Scott  v. 
Rivers,  1  Stew.  &  Port.  19.  Darrock  v.  Hay,  2  Yeates,  208.  3forrison  v.  Furnham,  1  A.  K. 
Marsh.  41.  And  between  the  same  parties.  Wain  v.  Wilkins,  4  Yeates,  461.  Warner  v. 
Barker,  3  Wend.  400.  And  the  debts  must  be  due  to  and  from  the  same  persons  in  the  same 
capacity.  Pitkin  v.  Pitkin,  8  Conn.  325.  Thus  a  joint  debt  cannot  be  set  off  against  a  sepa- 
rate delDt,  nor  a  separate  debt  against  a  joint  debt.  Bibb  v.  Saunders,  2  Bibb,  86.  Blanks  v. 
Smith,  Peck,  186.  McDowell  v.  Tyson,  14  S.  &  R.  300.  Porter  v.  Neckervis,  4  Rand,  359. 
Howe  V.  Shcppard,  2  Sumner,  409.  Walker  v.  Leighton,  11  Mass.  140.  Woods  v.  Carlisle,  6  N. 
Hamp.  27.  Stewart  v.  Coulter,  12  S.  &.  R.  252.  Neither  can  a  debt  due  from  an  individual 
partner  be  set  off  against  a  partnership  demand.  Scott  v.  Trent,  1  Wash.  77.  White  v.  Union 
Ins.  Co.  1  N.  &  M.  556.     Brown  v.  Thompson,  Coxe,  2.     Richie  v.  Moore,  5  Munf.  388. 


NOTICE  OF  SET-OFF.  063 

The  actions  in  whicli  a  s5ct-ofr  is  allowable  upon  tliesc  statutes  arc  dehty 
covenant,  and  assumpsit  for  the  non-payment  of  money ;  and  the  demand 
intended  to  bo  set  off  must  be  liquidated, (^')[a]  and  such  as  might 
have  been  *made  the  subject  of  one  or  other  of  these  actions.  A  [  *664  ] 
set-oiT  therefore  is  never  allowed  in  actions  of  trespass,  or  upon 
the  case :  nor  in  debt  on  bond  conditioned  for  the  performance  of  the  cove- 
nants,(a)  &c. ;  nor  in  covenant,  or  assumpsit,  for  general  damages  :{b) 
And  a  penalty,(6')  or  uncertain  damages, (fW)  cannot  be  made  the  subject  of 
a  set-oft*  But  where  a  ])ond  is  conditioned  for  the  payment  of  an  an- 
nuit3',(('6')  or  of  liquidated  damages,(/)  a  set-oft"  may  be  allowed  :  And  a 
judgment  may  be  pleaded  by  way  of  set-oft",  though  a  Avrit  of  error  be 
pending  thereon. ((/)  The  statutes  of  set-oft"  do  not  extend  to  an  action  of 
replevin.{]i)  But  to  an  avowry  or  cognizance  for  rent,  the  plaintift"  in  re- 
plevin may  plead  in  bar  the  payment  of  ground  rent,(/')  or  of  an  annuity 
charged  on  the  premises  ',[k)  or  of  land  tax,  &c.  paid  for  the  same,  after 
the  rent  distrained  for  had  become  due,  or  whilst  it  was  accruing;  though 
any  previous  payment  of  land  tax,  &c.  cannot  be  pleaded  in  bar  of  an 
avowry  or  cognizance  for  rent  subsequently  due.(?)    In  assumpsit  for  goods 

(e)  Pcakc's  Cas.  Ni.  Pri.  3  Ed  56  ;  and  see  fd.  57,  («),  and  the  cases  there  cited. 

(a)  Bui.  Ni.  Pri.  179.     Willes,  261.     M'Clel.  198.     13  Price,  434,  S.  C. 

(b)  1  Esp.  Rep.  378.  3  Campb.  329.  5  Maule  &  Sel.  439.  2  Chit.  Rep.  161.  5  Barn.  & 
Aid.  93.     Aubcr  v.  Lewis,  E.  58  Geo.  III.  K.  B.     Man.  Dig.  tit.  Set-Of,  A.  (b) ;  but  see 

1  East,  375. 

(c)  2  Bur.  1024. 

(del)  I  Blac.  Rep.  394.  2  Blac.  Rep.  910.  Cowi).  56.  6  Durnf.  k  East,  488.  4  Esp.  Rep. 
207.     1  Taunt.  137.     M'Clel.  198.     13  Price,  434,  S.  C. 

(ee)   2  Bur.  820.     2  Ken.  530,  S.  C.  (/)  2  Durnf.  &  East,  32. 

(ff)  Reynolds  v.  Beerlinff,  M.  25  Geo.  III.  K.  B.     3  Durnf.  &  East,  188,  in  nods:  but  see 

2  II.  Blac.  372. 

(A)  Barnes,  450.  Bui.  Ni.  Pri.  181,  S.  C.  Graham  v.  Fraine,  H.  24  Geo.  II.  Laycock  v. 
TuffncU,  H.  27  Geo.  III.  K.  B.  2  Chit.  Rep.  531 ;  and  see  4  Durnf.  &  East,  512,  (a),  S.  C. 
cited. 

{i)  4  Durnf.  &  East,  511.  {k)  6  Taunt.  524.     2  Marsh.  220,  S.  0. 

{I)  1  Barn.  &  Aid.  123.  3  Moore,  278.  1  Bred'.  &  Bing.  37,  S.  C.  3  Barn.  &  Aid.  516  ; 
and  see  4  Moore,  431.  2  Brod.  &  Bing.  59,  S.  C.  2  Chit.  Rep.  531,  (a).  M-Clel.  622.  4 
Bing.  11. 

[a]  An  unliquidated  demand  cannot  be  pleaded  in  set-ofif.  Farquhar  v.  Collins,  3  A.  K. 
Marsh.  31.  Morrison  y.  JIart,  llard'in,  150.  M'Kinnn/  v.  Bellous,  3  Blackf.  31.  Slate  V. 
Welsled,  6  Ilalst.  397.  Be  Tastett  v.  Crousillatt,  1  Wasli.  C.  C.  132.  U.  States  V.  Wells,  2  ]b. 
161.  Williams  v.  Gilchrist,  3  Bibb,  49.  Brown  v.  Cuming,  2  Caines,  33.  Tot/lor  v.  Stout, 
Coxe,  53.  Edwards  v.  Davis,  1  Halst.  394.  Ilorjr;  v.  Ashe,  1  Hayes,  471.  Hepburn  v.  Ifoag, 
6  Conn.  613.  JfCordv.  Williams,  2  Ala..  11.  Woodruff  v.  Lajlin,  4  Vikc,  521.  But  unliqui- 
dated damages  may  be  set  off",  under  the  plea  of  payment,  in  an  action  of  debt  arising  from 
the  same  transaction.  Ilubler  v.  Tamney,  5  Watts,  51.  Neither  can  an  account,  barred 
by  the  statute  of  limitations,  be  sn.-^taincd  as  a  set-off.  Gilehrisl  v.  Williams,  3  A.  K. 
Marsh.  235.  Williams  v.  Gilchrist,  3  Bibb,  49.  Turnbull  v.  Struhccker,  4  M-Cord,  210.  Crist 
V.  Garner,  2  Pcnn.syl.  251.  Madden  v.  Madden,  2  Rep.  Con.  Ct.  350.  Jacks  v.  Moore,  1 
Ycates,  391.  Nor  a  claim  in  autre  droit,  Doylet/  v.  Doyley,  2  M'Cord,  185.  Neither 
can  a  debt  due  by  the  plaintiff  to  one  of  several  obligors,  in  a  liond,  be  set-off  in  a  suit 
against  all  the  obligors.  Henderson  v.  Lewui,  9  S.  &  R.  379.  Pitcher  v.  Patrick,  Minor,  321. 
And,  generally  siieaking,  demand.?  can  only  be  set  off  between  parties  in  the  character  in 
which  they  are  sued;  therefore,  a  demand  against  its  clerk  cannot  be  set  ofiF  against  a  de- 
mand due  to  a  corporation.  Columbia  v.  Harrison,  2  Rep.  Con.  Ct.  213.  Neither  can  a 
claim  against  the  plaintiff  in  a  representative  capacity  be  set  off  in  a  suit  brought  in  an  in- 
dividual capacity.  Grew  v.  Burdilt,  9  Pick.  265.  Snow  v.  Conant,  8  Verm.  30S.  Crimmings 
V.  Williams,  5  J.  J.  Marsh.  384.  Barton  v.  Hoomcs,  1  A.  K.  Marsh.  19.  So  it  has  been  held 
that  in  an  action  to  recover  money  received  by  an  officer  in  his  official  capacity,  a  debt  due 
from  the  plaintiff  to  the  oflicer,  in  his  private  capacity,  is  not  a  subject  of  set-off.  Prewett 
y.  Marsh,  I  Stew.  &  Port.  17.  Orclaimsagainstanagent,  against  a  debt  due  the  principal.  Wil- 
son V.  Codman,  3  Cranch,  193.    Atkinson  v.  Teasdale,  1  Bay,  299.    Godfrey  v.  Forrest,  lb.  300. 


QQ^  OF  THE  PLEA,  AND 

sold  and  delivered,  the  defendant  may  set  off  money  due  upon  the  plaintiff's 
acceptance,  of  which  defendant  has  become  holder  since  the  sale,  and  before 
the  delivery  of  the  goods,  though  he  has  agreed  to  pay  the  plaintiff  ready 
money  for  them.(/?i)  But  a  debt  barred  by  the  statute  of  limitations  cannot 
be  set  off :  and  if  it  be  pleaded  in  bar  to  the  action,  the  plaintiff  may  reply 
the  statute  of  limitations  ;(»)  or  if  given  in  evidence  on  a  notice  of  set-off, 
it  may  be  objected  to  at  the  trial. (o) 

In  order  to  set  off  a  debt,  it  is  necessary  that  it  should  have  existed  at 
the  time  of  the  commencement  of  the  action  ;[a]  it  having  been  determined, 

(m)  2  Maule.  &  Sel.  510  ;  and  see  2  Esp.  Rep.  626.  1  East,  375.  8  Moore,  275.  1  Bing. 
311,  S.  C.     9  Dowl.  &  Ryl.  35.  (w)  2  Str.  1271.  (o)  Bui.  Ni.  Pri.  180. 

[a]  a  set-ofF  can  be  made  only  of  a  demand  existing  and  owned  by  the  defendants  at  the 
time  of  the  commencement  of  the  suit.  Huling  v.  Hugg^  1  Watts  &  Serg.  418.  Cox  v.  Cooper^ 
3  Ala.  256.  Carfren  v.  Canavan^  4  How.  Miss.  370.  Kelly  v.  Garrett,  1  Gilman,  649.  And 
the  debts  must  be  mutual.  Hogg  v.  Ashe,  C.  &  N.  3.  WoffordY.  Greenlee,  C.  &  N.  79.  Haugh- 
ton  V.  Lcary,  3  Dev.  &  Batt.  21.  Cash  v.  Cash,  Geo.  Decis.  Part  I.  97.  Buchannan  v.  Gavi- 
lle,  Ih.  156.  See  Ante,  p.  6G2,  [a].  A  debt  remains  mutual  as  much  after  verdict  as  before, 
and  the  verdict  does  not  annihilate  or  extinguish  the  debt;  it  only  amounts  to  conclusive 
evidence  of  the  debt,  and  the  same  right  exists  to  set  it  off  after  the  verdict  as  before.  Bell 
V.  Cogswell,  1  Ashmead,  7. 

Set-off  may  be  pleaded  in  an  action  of  covenant ;  and  the  plea  must  contain  the  requisites 
of  a  count  in  debt.  Roebuck  v.  Tennis,  5  Monr.  82.  It  is  a  general  rule  that,  where  indebi- 
tatus assumpsit  will  lie  on  a  simple  contract,  the  debt  due  tliereon  may  be  pleaded  in  set-off. 
Austin  V.  Zeland,  Mis.  309. 

In  Pennsylvania,  the  doctrine  of  set-ofFhas  been  liberally  extended  by  statute,  and  an  un- 
liquidated cross  demand,  arising  from  a  distinct  and  independent  contract,  may  there  be  set 
off.  Ellmaher  v.  Franklin  Fire  Ins.  Co.,  6  Watts  &  Serg.  439.  So  in  Illinois,  under  the  17th 
section  of  the  Practice  Act  of  Illinois,  of  1827,  unliquidated  damages,  arising  ex  contractu, 
may  be  set  off  in  an  action  of  assumpsit.  Edwards  v.  Todd,  1  Scam.  4G2.  Kaskaskia  Bridge 
Co.  V.  Shannon,  1  Gilman,  15.  And  it  has  been  held  in  Pennsylvania,  that  the  defendant  in 
an  action  may  set  off  the  excess  of  interest  talcen  of  him  by  the  plaintiff  in  a  transaction 
different  from  that  on  which  the  action  is  brought.  Thomas  v.  Shoemaker,  6  Watts  &  Serg. 
179.  And  damages  arising  from  a  breach  of  warranty  of  goods  sold  may  be  set  off  in  an 
action  on  a  note  given  in  a  different  transaction.  Phillips  v.  Lawrence,  6  Watts  &  Serg.  150. 
Carman  v.  Franklin  Fire  Ins.  Co.,  6  Watts  &  Serg.  155. 

"  We  have  gradually  enlarged  the  effect  of  our  act  for  deflilcation  by  discarding  notions 
derived  from  the  English  statute  of  set-off,  till  we  have  brought  it  to  the  line  of  the  enact- 
ment. There  is  not  a  word  in  the  English  statute  about  mutual  dealing ;  or  about  being 
indebted  by  bonds,  bills,  bargains,  promises,  or  accounts ;  or  about  the  defendant's  being 
unable  to  gainsay  the  deed,  bargain,  or  assumption — expressions  in  ours  which  indicate  an 
unsettled  course  of  dealing — nor  is  there  any  thing  in  it  to  show  that  tjie  words,  '  mutual 
debts,'  the  only  descriptive  ones  contained  in  it,  were  not  to  have  their  technical  effect.  In 
our  statute,  too,  the  words  '  debt  or  sum  demanded,'  seem  to  have  been  introduced  inten- 
tionally to  enlarge  the  purview.  True  it  is,  that  both  statutes  are  susceptible  of  the  same 
construction  without  much  violence  to  the  words,  and  that  we  have  been  in  the  habit  of 
receiving  English  precedents  in  questions  of  set-off;  but  it  has  seemed  that  neither  justice 
nor  convenience  called  on  us  to  depart  from  the  obvious  and  natural  meaniug  of  our  own. 
If  an  unliquidated  cross  demand  may  be  set  up  when  it  has  sprung  from  the  same  trans- 
action— and  we  have  constantly  ruled  that  it  ipay — why  may  it  not  be  set  up  when  it  has 
sprung  from  a  distinct  and  independent  contract  ?  The  confusion  inciden*  to  the  trial  of  dis- 
tinct issues  in  the  same  action  is  no  greater  where  the  demands  are  independent  of  each 
other  than  where  they  are  connecfed,  nor  more  embarrassing  where  they  are  indefinite  than 
where  they  are  liquidated ;  nor  more  complicated  where  they  are  set  against  each  other 
than  where  they  are  joined  in  the  same  declarations  or  in  consolidated  actions.  The  prac- 
tical difference  between  a  debt,  properly  so  called,  and  an  indefinite  demand  of  money  rest- 
ing in  contract,  is  more  seeming  than  real.  A  bond  for  the  payment  of  a  sura  certain  is  strictly 
a  debt,  and  a  subject  of  set-off;  yet  to  ascertain  the  amount  due  on  it  when  reduced,  as  it 
sometimes  is  by  failure  of  consideration,  or  a  variety  of  causes,  is  often  one  of  the  most  diffi- 
cult duties  that  can  be  committed  to  a  jury.  When  its  definite  character  is  so  often  decep- 
tive, what  better  claim  has  it  to  be  made  matter  of  set-off  than  a  policy  of  insurance  ?  The 
trial  of  cross  demands  in  the  same  action  saves  expense  and  the  vexation  of  paying  out 
money  to  get  it  back  at  the  risk  of  loosing  it  by  insolvency  in  the  circuit."  Per  Gibson,  C.  J., 
in  Ellmaker  v.  Franklin  Ins.  Co.,  6  Watts  &  Serg.  444. 


NOTICE  OF  SET-OFF.  664 

that  a  plea  of  set-off,  stating  tliat  tlie  plaintiff  was  indebted  to  the  defendant 
at  the  time  of  plea  pleaded,  is  bad.( p)  And  the  debts  sued  for,  and  intended 
to  be  set  off,  must  be  mutual,  and  due  in  the  same  right  :{q)  therefore,  a 
joint  debt  cannot  be  set  off  against  a  separate  demand,  nor  a  separate  debt 
against  a  joint  one,(r)  unless  it  be  so  agreed  by  the  parties ;(«) 
but  *debt  due  to  a  dcti'iidant  as  surviving  partner,  may  be  set  off  [  *G65  ] 
against  a  <leinand  on  liiin  in  his  own  Yi<^\it,{(i)  and  vice  vcr8('i.{b)\_A'] 
A  policy  broker,  who  makes  an  insurance  in  his  own  name,  for  the  benefit 
of  his  principal,  and  has  a  del  credere  commission,  may  it  seems  set  off  the 
amount  of  losses  and  returns  of  premium,  in  an  action  brought  against  him 
by  an  underwriter  for  premiums.  But  where  the  insurance  is  nuide  by  the 
broker  in  the  name  of  his  principal, (c)  or  he  has  not  a  commission  del  cre- 
dere,{d)  the  losses  and  returns  of  premium,  not  being  a  mutual  debt,  cannot 
be  made  the  subject  of  a  set-off.  So,  if  an  action  b6  brought  against  a 
policy  broker,  by  the  assignees  or  executors  of  an  underwriter,  for  pre- 
miums, wdicre  the  insurance  was  made  by  the  broker  in  his  own  name  on 
a  del  credere  commission,  the  defendant  may  set  off  the  amount  of  losses 
happening  and  adjusted,  or  returns  of  premium  becoming  due,  before  the 
bankruptcy,  or  in  the  life-time  of  the  testator.((')  But  a  loss  liappening 
before  the  bankruptcy  cannot  be  set  off,  in  an  action  brought  by  the 
assignees  of  an  underwriter  against  a  broker,  for  premiums  due  to  the  bank- 
rupt, where  the  insurance  was  made  in  the  name  of  the  assured,  and  the 
broker  was  not  intrusted  with  the  policy,  though  he  had  a  del  credere  com- 
mission, and  had  paid  the  loss  to  the  assured  before  the  bankruptcy ;(/) 
nor  where  the  insurance  was  made  by  the  broker  as  agent,  without  a  del 
credere  commission,  and  there  had  been  no  adjustment,  though  the  loss  took 

(p)  3  Durnf.  &  East,  186  ;  and  see  1  Bing.  93.  (g)   1  Younge  &  J.  180. 

(r)  5  Maulc  &  Sel.  439;  and  see  7  Barn.  &  Cres.  217;  but  see  Peake's  Cas.  Ni.  Pri.  3 
Ed.  260.     2  Esp.  Rep.  469,  594. 

(s)  2  Taunt.  170.  (a)  5  Durnf.  &  East.  493.     1  Esp.  Rep.  47. 

(b)  6  Durnf.  &  East,  582;  and  see  2  Durnf.  &  East,  476. 

(c)  1  Maulc  &  Sel.  494.  2  Maule  &  Sel.  112  ;  and  see  4  Taunt.  242.  4  Maule  &  Sel.  56C. 
7  Taunt.  478. 

(d)  WilKon  and  others,  as.tiffnee.i,  v.  Creighton  and  others,  M.  23  Geo.  III.  K.  B.  Marsh. 
Insur.     1  Ed.  p.  204.     16  East,  382. 

(e)  1  Durnf.  &  East,  115,  285.  2  Campb.  586;  and  see  12  East,  507.  4  Taunt.  584.  6 
Taunt.  448.     2  Marsh.  138,  S.  C. 

(/)  7  Taunt.  478.     1  Moore,  178,  S.  C. 

[a]  a  claim  to  be  set  off  at  law,  niu.st  be  a  claim  at  law  and  not  in  e(iuity.  Gilchrist  v. 
Leonard,  2  Bailey,  135;  and  of  like  character,  thus,  a  note  cannot  be  set  off  against  a  judg- 
ment. Jiaffff  V.  Jefferson,  Com.  Pleas,  10  Wend.  615.  Or  a  note  given  after  notice  of  an 
assignment,  though  for  a  preexisting  liability,  cannot  be  the  subject  of  set-off.  Weeks  v. 
Hunt,  6  Verm.  15.  A  judgment  recovered  by  A.  against  B.  and  C,  may  be  set  off  by  a  judg- 
ment recovered  by  B.  against  A.  Jfiilchins  v.  Kiddle,  12  N.  Ilamp.  464.  And  the  court  ma^-, 
in  its  discretion,  stay  the  entry  of  judgment  in  the  action  in  favor  of  B.  against  A.,  to  enable 
the  latter  to  obtain  judgment  on  his  demand  against  B.  and  C,  for  the  purpose  of  making  a 
set-off.  lb.  To  enable  one  to  set  off  one  judgment  against  another  on  motion,  he  must  bu 
the  absolute  owner  of  the  judgment  in  iiis  own  right.     Mason  v.  Knoul.ion,  I  Hill,  218. 

In  general,  set-offs  are  not  admissible  in  the  admiralty.  Ship  Mentor,  4  .Mason,  84.  Courts 
of  admiralty  do  not  take  notice  of  set-offs,  except  so  far  as  they  grow  out  of  a  maritime  con- 
tract submitted  to  their  cognizance,  and  these  principles,  byway  of  diminishing  compensa- 
tion, and  not  as  an  independent  right.  Willard  v.  Dorr,  3  Mason,  161.  Nor  is  set-off  allow- 
able on  a  libel  for  seamens'  wages,  except  a  payment  on  account  thereof.  Baines  v.  Schooner 
James,  1  Bald.  544.  Neither  is  it  allowable  in  replevin ;  but  the  tenant  may  prove  that  the 
landlord  did  not  comply  with  his  contract.  Fairman  v.  Utick,  5  Watts,  516.  Or  against  any 
one  other  than  the  plaintiff  on  the  record.  Johnson  v.  Bridge,  6  Cow.  693.  Grigg  v.  James, 
Breese,  107. 


QQ^  OF  THE  PLEA,  AND 

place  before  the  bankruptcy,  and  though  the  policy  had  always  remained 
in  the  hands  of  the  broker,  and  he  had  actually  paid  the  amount  of  the  loss 
to  his  principal. ((/)  And  a  broker  who  is  indebted  to  the  assignees  of  a 
bankrupt,  for  premiums  due  to  them  upon  policies  subscribed  by  the  bank- 
rupt before  his  bankruptcy,  is  not  entitled  to  set  off  returns  of  premium 
due  upon  the  arrival  of  ships  after  the  bankruptcy. (7i)  So,  in  an  action 
by  the  executors  of  an  underwriter  against  a  broker  for  premiums  due  on 
policies  subscribed  by  the  testator,  the  defendant  cannot  set  off  returns  of 
premium  which  became  due  after  the  testator's  death  :(^)  and  it  makes  no 
difference  in  this  respect,  that  the  policies  were  effected  under  a  del  credere 
commission. (A;)  A  broker  having  adjusted  a  loss  with  an  underwriter,  and 
struck  his  name  out  of  the  policy  and  adjustment,  after  which  he  became 
bankrupt  within  the  usual  time  of  credit,  it  was  holden  that  the  underwriter 
could  not  set  off  against  the  assured,  the  balance  due  to  him  from  the  broker, 

at  the  time  of  adjusting  the  loss  on  the  policy. (Z)  *And  where 
[  *QQQ  ]  the  defendant  purchased  as  broker  for  B.,  the  goods  of  A.,  for 

whom  he  sold  them  under  a  del  credere  commission,  and  did  not 
disclose  at  the  time  the  name  of  A.,  but  disclosed  it  soon  after,  and  paid 
A.  the  price  of  the  goods,  without  any  directions  from  B.,  the  court  held, 
that  in  an  action  by  the  assignees  of  B.,  to  recover  the  balance  due  upon 
a  resale  of  the  goods,  made  by  the  defendant  on  account  of  B.,  the  de- 
fendant was  not  entitled  to  set  off  the  money  paid  to  A.,  either  under  the 
statute  2  Geo.  II.,  c.  22,  §  13,  or  5  Geo.  II.  c.  30,  §  28.(a)  ^ 

In  an  action  of  debt  against  a  man  on  his  own  bond,  he  is  not  allowed 
to  set  off  a  debt  due  to  him  in  right  of  his  wife  :{b)  And  a  debt  owing  by 
the  wife  duni  sola  cannot  be  set  off  in  an  action  brought  by  the  husband 
alone,  unless  he  has  promised  to  pay  the  debt  after  marriage,  and  thereby 
made  it  his  own.(c)  Neither,  for  the  same  reason,  can  a  defendant,  sued  as 
executor  or  administrator,  set  off  a  debt  due  to  himself  personally ;  nor,  if 
sued  for  his  own  debt,  can  he  set  off  what  is  due  to  him  as  executor  or 
administrator :  And  where  an  executor  sues  for  a  cause  of  action  arising 
after  the  testator's  death,  the  defendant  cannot  set  off  a  debt  due  to  him 
from  the  testator. (c?)  The  defendant  cannot  plead  by  way  of  set-off,  a 
bond  debt  of  the  plaintiff,  assigned  to  the  defendant  by  another,  to  whom 
and  for  whose  use  it  was  originally  given. (c)  And  one  partner  cannot  set 
off  a  debt  due  to  him  from  another,  on  the  partnership  account,  unless  a 
final  balance  has  been  struck,  and  agreed  to  between  the  parties.(/)  But 
where  an  action  is  brought  by  or  against  a  trustee,  a  set-off  may  be  made 
of  money  due  to  or  from  the  cestui  que  trusft.[gg)  And  where  goods  be- 
longing partly  to  A.  and  partly  to  B.  were  put  up  to  auction  at  A.'s  house, 
having  been  entered  at  the  excise  in  A.'s  name,  and  the  catalogue  stated 
them  to  be  all  the  property  of  A.,  and  C,  being  a  creditor  of  A.,  pur- 

{g)  4  Campb.  396.     6  Taunt.  519.     2  Marsh.  215,  S.  C.  [h)  4  Taunt.  534 

(?)  6  Taunt.  448.     2  Marsh.  138.     Holt  Ni.  Pri.  88,  S.  C. 

(/c)  6  Taunt.  451.     2  Marsh.  141,  S.  C.     Holt  Ni.  Pri.  89,  n. 

(l)  3  Stak.  Ni.  Pri.  16.  («)  4  Manle  &  Sel.  566. 

[b)  Bui.  Ni.  Pri.  179.  (c)  2  Esp.  Rep.  594. 

{d)  Willes,  103.  Cas.  Pr.  C.  P.  151.  Pr.  Reg.  268,  S.  C. ;  and  see  Willes,  106,  (1) 
264,  (a).     Bui.  Ni.  Pri.  180. 

(e)   IG  East,  36.  (/)   2  Bing.  ITO.     9  Moore,  319,  S.  C. 

(OC/)  1  Durnf.  &  East,  622  ;  and  see  Willes,  400.  2  Esp.  Rep.  557.  7  Durnf.  &  East,  359, 
S.  G.  2  Chit.  Rep.  387.  7  Taunt.  243.  2  Marsh.  501,  S.  C.  4  Barn.  &  Cres.  547.  7  Dowl. 
&  Ryl.  42,  S.  C. 


NOTICE  OF  SET-OFF.  666 

chased  several  of  the  articles,  without  hcing  informed  that  part  of  them 
were  the  property  of  B.,  it  was  holden  that,  under  these  circumstances, 
the  purchaser  was  entitled  to  set  off,  in  an  action  brought  by  the  auctioneer, 
the  debt  due  to  him  from  A.(7t)  It  was  formerly  holden,  that  a  set-off 
could  not  be  allowed,  as  against  the  assignees  of  a  bankrupt ;(/)  but  it  has 
since  been  determined  that,  in  an  action  at  their  suit,  the  defendant  may 
set  off  a  debt  due  to  him  at  the  time  of  the  bankruptcy  :{/c)  And  where  an 
insured,  being  indebted  to  the  underwriter  on  a  balance  of  accounts,  be- 
comes bankrupt,  if  a  loss  afterwards  happen,  the  underwi-iter,  in  an  action 
by  the  assignees,  may  deduct  the  balance  due  to  him,  from  the 
amount  of  his  *subscription.(a«)  So,  a  sale  of  the  property  of  a  [  *G67  ] 
bankrupt  after  an  act  of  bankruptcy,  but  more  than  two  months 
before  the  commission  issued,  is  since  the  46  Geo.  III.  c.  135,  §  1,  a  sale 
by  the  bankrupt,  and  not  by  the  assignee ;  and  a  creditor  of  the  bankrupt 
having  become  a  purchaser,  was  holden,  in  an  action  brought  by  the 
assignee  for  the  value  of  the  goods,  to  be  entitled  to  set  off  against  such 
claim,  the  debt  due  to  him  from  the  bankrupt ;  this  constituting  a  mutual 
credit  between  the  bankrupt  and  such  creditor,  within  the  meaning  of  the 
above  statute.(^i)  But  a  note  indorsed  to  the  defendant,  after  the  bank- 
ruptcy, cannot  be  set  off;(<?)  nor  cash  notes  issued  by  the  bankrupt  before 
his  bankruptcy,  and  payable  to  bearer,  unless  the  defendant  show  further, 
that  such  notes  came  to  his  hands  before  the  bankruptcy.(t^  To  enable 
the  holder  of  a  bankrupt's  acceptances  to  avail  himself  of  them,  in  an 
action  by  the  assignees  against  himself  on  his  own  acceptance,  he  must 
clearly  prove,  either  that  the  obligation  to  pay  the  bankrupt's  acceptances 
subsisted  before  the  bankruptcy,  to  bring  the  case  within  the  ordinary  law 
of  set-off,  or  that  there  was  some  connection  in  the  origin  of  the  transac- 
tion, to  bring  it  within  the  cases  of  mutual  credit.(c) 

When  either  of  the  debts  accrues  by  reason  of  a  penalty,  the  debt 
intended  to  be  set  off  must  be  pleaded  in  bar ;  and  the  defendant  in  his 
plea,  must  aver  what  is  really  due :(/)  Avliich  averment  has  been  holden 
to  be  traversable,(^)  though  laid  under  a  videlicct.{Jih)  But  in  all  other 
cases,  the  defendant  may  either  plead  or  give  notice  of  set-off,  at  his  elec- 
tion.(li)  And  where,  to  debt  on  bond,  the  defendant  pleaded  a  set-off,  and 
that  1100?.  was  due  and  no  more,  and  the  plaintiff  replied  generally,  that 
a  larger  sum  was  due,  to  wit,  the  sum  of  1750?.,  it  was  ruled,  that  the 
plaintiff  was  bound  to  prove  that  more  than  1100?.  Avas  due. (Ztj^)  If,  at  the 
time  of  the  action  brought,  a  larger  sum  was  due  from  the  plaintiff  to  the 
defendant,  than  from  him  to  the  plaintiff,  the  action  being  barred,  it  seems 
more  proper  to  plead  the  set-off;  and  it  is  usually  pleaded  in  country 
causes,  to  save  the  trouble  and  expense  of  proving  the  service  of  a  notice. 
But  where  the  sum  intended  to  be  set  off  is  less  than  that  for  which  the 

(A)  7  Taunt.  243.    2  Marsh.  501,  S.  C.  (i)   1  Wils.  155. 

\k)  Cowp.  133 ;  and  sec  the  statutes  5  Geo.  II.  c.  30,  \  28.  4G  Geo.  III.  c.  135,  ?  3.  6 
Geo.  IV.  c.  16,  §  50.  Holt  Ni.  Pri.  408.  6  Dowl.  &  Ryl.  312.  5  Barn.  &  Crcs.  141.  7  Dowl. 
&  Rvl.  539,  S.  C. 

{aa)  2  Marsh.  5G1.    5  Maule  k  Sel.  498.    3  Price,  227,  S.  C. ;  but  see  4  Taunt.  775,  contra. 

\bb)  ^  3.    1  Barn.  &  Aid.  471 ;  and  see  2  Chit.  Rep.  387.    Stat.  6  Geo.  IV.  c.  IG,  \  50. 

(c)  2  Str.  1234.  [d)  6  Durnf.  &  East,  57. 

(<•)  4  Taunt.  888  ;  and  see  G  Taunt.  517.    2  Marsh.  209,  S.  C.     6  Ham.  &  Cres.  42. 

(/)  Stat.  8  Geo.  II.  c.  24,  §  5.  (g)  3  Durnf.  &  East,  65. 

(hh)  6  Durnf.  &  East,  4C0.  («i)  2  Bur.  1231.    Bui.  Ni.  Pri.  179. 

{kk)  Holt  Ni.  Pri.  293. 


QQ>j  OF  NOTICE  TO  ASSIGNEES,  ETC. 

action  is  brought,  a  notice  of  set-off  should  be  given. (?)  A  notice  of  set- 
off can  only  be  given  when  the  general  issue  is  pleaded,  without  any  other 
plea.(m)  And  the  plea  of  non  est  factum,  in  covenant  for  non-payment 
of  rent,  is  not  considered  as  a  general  issue,  under  which  the  defendant 
can  give  a  notice  of  set-off:  for  in  covenant  there  is,  properly  speaking, 
no  general  issue  ;(7«.)  and  if  a  verdict  Avere  found  thereon  for  the 
[  *668  ]  plaintiff,  there  *Avould  be  no  means,  in  entering  up  the  judgment, 
of  setting  off  the  debt  due  to  the  defendant,  (a) 

The  notice  of  set-off  should  regularly  be  given  with,  or  at  the  time  of 
pleading  the  general  issue  :{b)  Though  if  it  be  not  then  given,  the  court, 
on  motion,  will  give  the  defendant  leave  to  withdraw  the  general  issue,  and 
plead  it  again  with  a  notice  of  set-off  :(cc)  and  such  notice  may  be  given 
with  the  general  issue,  after  the  defendant  has  been  ruled  to  abide  by  his 
plea.(c?t^)  In  point  of  form,  a  notice  of  set-off  should  be  almost  as  certain 
as  a  declaration  :  therefore,  where  the  notice  of  set-off  was  in  these  words, 
"  Take  notice  that  you  are  indebted  to  me,  for  the  use  and  occupation  of 
an  house,  for  a  long  time  held  and  enjoyed,  and  now  lately  elapsed;"  it 
was  deemed  insufficient  :{ee)  and  it  afterwards  appearing,  that  the  debt 
intended  to  have  been  set  off  was  rent  reserved  on  a  lease  by  indenture, 
which  was  not  mentioned  in  the  notice,  the  chief  justice  said  it  was  bad  on 
that  account  also  ;  for  if  this  had  been  shown,  the  plaintiff  might  probably 
have  proved  an  eviction,  or  some  other  matter  to  avoid  the  demand. (/) 
The  notice  of  set-off  is  usually  written  under  the  plea,  and  delivered  there- 
with to  the  plaintiff's  attorney ;  and  a  copy  of  the  notice  should  be  kept 
by  the  defendant's  attorney,  it  being  necessary  to  prove  the  delivery  of  it 
at  the  trial  of  the  cause. (^) 

When  the  defendant  has  a  set-off  against  the  plaintiff,  of  which  he  gives 
notice,  but  does  not  appear  at  the  trial  to  offer  evidence  in  support  of  it,  the 
plaintiff  may  either  take  a  verdict  for  the  whole  sum  he  proves  to  be  due 
to  him,  subject  to  be  reduced  to  the  sum  really  due  on  a  balance  of  accounts, 
if  the  defendant  will  afterwards  enter  into  a  rule  not  to  sue  for  the  debt 
intended  to  be  set  off;  or,  it  is  said  he  may  take  a  verdict  for  the 
smaller  sum,  with  a  special  indorsement  on  the  jwstea,  as  a  foundation  for 
the  court  to  order  a  stay  of  proceedings,  if  another  action  should  be  brought 
for  the  amount  of  the  set-off. (A) 

It  is  sometimes  necessary,  in  actions  brought  by  or  against  the  assignees 
of  a  bankrupt,  for  the  other  party  to  give  a  notice  in  writing,  of  his  inten- 
tion to  dispute  the  petitioning  creditor's  debt,  trading,  or  act  of  bankruptcy ; 
it  being  enacted,  by  the  statute  6  Geo.  IV.  c.  16,  §  90,  that  "  in  any  action 

(l)  Bui.  Ni.  Pri.  179  ;  but  see  Lawes,  on  Pleading,  538. 

(«i)  Ry.  &  Mo.  A13,  per  Abbott,  Ch.  J. ;  but  see  6  Esp.  Rep.  50.     3  Chit.  PL  4  Ed.  932,  (b), 
933,  (a),  contra, 
(n)  Ante,  648. 

(a)  1  Stark.  Ni.  Pri.  311.  5  Maule  &  Sel.  164.  2  Chit.  Rep.  388,  S.  C.  Sel.  Ni.  Pri.  6 
Ed.  535 ;  but  see  Bui.  Ni.  Pri.  181,  se7nb.  contra. 

(b)  Append.  Chap.  XXVII.  §  7.  (cc)  2  Str.  1267. 
(dd)   1  Durnf.  &  East,  693,  4,  in  iiotis. 

\ee)  Bui.  Ni.  Pri.  179.  But  note,  this  was  before  the  stat.  11  Geo.  II.  c.  19,  which  gives 
the  action  for  use  and  occupation. 

(f)  And  see  2  Esp.  Rep.  560,  569. 

\g)  1  Cromp.  3  Ed.  156.  And  see  further  as  to  the  notice  of  set  off,  Lawes,  on  Pleading 
Chap.  XVI.  p.  535,  &c.,  and  as  to  ihe  plea  of  set-off,  and  the  replications  thereto.  Id.  Chap. 
XX.  p.  769,  &c. 

{h)  1  Campb.  252  ;  and  see  1  Chit.  Rep.  178. 


OF  NOTICE  TO  ASSIGNEES,  ETC.  668 

by  or  against  any  assignee,  or  in  any  action  against  any  commissioner,  or 
person  acting  under  tlie  warrant  of  the  commissioners,  for  any  thing  done 
as  such  commissioner,  or  under  such  Avarrant,  no  proof  shall  be  re<[uired, 
at  the  trial,  of  the  petitioning  creditor's  debt  or  debts,  or  of  the  trading, 
act  or  acts  of  bankruptcy  respectively,  unless  the  other  party  in 
such  action  shall,  if  defendant,  at  *or  before  plcadaig,  and,  if  [  *GG9  ] 
plaintiff,  before  issue  joined,  give  notice  in  writing  to  such 
assignee,  commissioner  or  other  person,  that  he  intends  to  dispute  some 
and  which  of  such  matters  ;(a)  and  in  case  such  notice  shall  have  been 
given,  if  such  assignee,  commissioner  or  other  person,  shall  prove  the  matter 
so  disputed,  or  the  other  party  admit  the  same,  the  judge  before  whom  the 
cause  shall  be  tried  may  (if  he  think  fit,)  grant  a  certificate  of  such  proof 
or  admission  ;  and  such  assignee,  commissioner  or  other  person,  shall  be 
entitled  to  the  costs,  to  be  taxed  by  the  proper  officer,  occasioned  by  such 
notice  ;  and  such  costs  shall,  if  such  assignee,  commissioner  or  other  person, 
shall  obtain  a  verdict,  be  added  to  the  costs ;  and  if  the  other  party  shall 
obtain  a  verdict,  shall  be  deducted  from  the  costs,  which  such  other  party 
would  otherwise  be  entitled  to  receive  from  such  assignee,  commissioner  or 
other  person. "(5)  And  by  §  92,  of  the  same  statute,  "  if  the  bankrupt  shall 
not  (if  he  was  within  the  united  kingdom  at  the  issuing  of  the  commission,) 
within  two  calendar  months  after  the  adjudication,  or,  if  he  was  out  of  the 
united  kingdom,)  within  twelve  calendar  months  after  the  adjudication,  have 
given  notice  of  his  intention  to  dispute  the  commission,  and  have  proceeded 
therein  with  due  diligence,  the  depositions  taken  before  the  commissioners, 
at  the  time  of  or  previous  to  the  adjudication,  of  the  petitioning  creditor's 
debt  or  debts,  and  of  the  trading,  and  act  or  acts  of  bankruptcy,  shall  be 
conclusive  evidence  of  the  matters  therein  respectively  contained,  in  all 
actions  at  law  or  suits  in  equity,  brought  by  the  assignees,  for  any  debt  or 
demand  for  which  the  bankrupt  might  have  sustained  any  action  or  suit." 
Where  the  defendant,  in  an  action  brought  by  the  assignee  of  a  bank- 
rupt, intends  to  dispute  the  trading,  petitioning  creditor's  debt,  or  act  of 
bankruptcy,  the  notice  should  specify  which  of  these  matters  it  is  intended 
to  dispute  ;  it  not  being  sufficient  to  give  a  general  notice,  that  he  intends 
to  dispute  the  ban'kruptcrj.[e)  In  a  previous  case,  arising  upon  the  statute 
49  Geo.  III.  c.  121,  §  10,  where  the  general  issue  had  been  pleaded  before 
the  passing  of  that  act,  it  was  deemed  unnecessary  for  the  plaintiff  to  prove 
the  petitioning  creditor's  debt,  trading,  or  act  of  bankruptcy  ;  but  a  judge, 
under  these  circumstances,  would  have  given  the  defendant  leave  to  with- 
draw his  plea,  and  plead  it  de  novo,  with  the  notice  required  by  the  act. ((f) 
So,  in  a  case  which  occurred  after  the  passing  of  that  act,  where  a  defend- 
ant, in  an  action  by  the  assignees  of  a  bankrupt,  pleaded  the  general  issue, 
without  giving  notice  of  his  intention  to  dispute  the  bankruptcy,  but  before 
the  time  for  pleading  had  expired,  delivered  the  general  issue  again,  with 
notice  of  his  intention,  such  notice  was  deemed  insufficient  :[e)  The  de- 
fendant in  such  case  ought  to  have  moved  for  leave  to  withdraw  his  plea, 
kc.{e)  And  a  notice  by  the  plaintifi',  of  his  intention  to  dispute 
the  act  of  bankruptcy,  served  at  the  *same  time  the  issue  is  de-  [  *GTO  ] 
livered,  with  notice  of  trial  on  the  back  of  it,  is  not  sufficient  : 

{a\  For  the  forms  of  notices  on  this  statute,  see  Append.  Chap.  XXVII.  ^  8,  9,  10. 
\b)  And  see  stat.  49  Geo.  III.  c.  121,  g  10.  (c)  6  Barn.  &  Cres.  537. 

(d)  2  Campb.  184  ;  and  see  id.  325.     Wightw.  80.     6  Moore,  489. 
\e)  1  Stark.  Ni.  Pri.  328. 

Vol.  I. 


Q*JQ  OF  NOTICE  TO  ASSIGNEES,  ETC. 

It  must  be  given  before  issue  joined. (a)  The  notice  may  be  served  on  the 
assi<2;nce,  by  delivery  to  his  attorney  :(i)  but  service  of  the  notice,  by  leaving 
it  M'ith  a  maid  servant  at  the  dwelling  house  of  the  assignee,  is  not  suffi- 
cient. (^>)  And  the  notice  given  by  a  defendant  is  not  to  be  considered  as 
part  of  his  regular  evidence  in  the  cause ;  but  may  be  proved  at  the  begin- 
ning of  the  trial,  and  immediately  puts  the  plaintiff  upon  strict  proof  of  the 
trading,  petitioning  creditor's  debt,  or  act  of  bankruptcy. (cc) 

In  an  action  of  tresjjass,  brought  by  a  bankrupt  against  his  assignees, 
to  try  the  validity  of  the  commission, (tZt^)  or  in  trover  by  a  third  person 
against  the  assignees, (ee;)  although  they  are  not  named  as  assignees  on  the 
record,  if  the  plaintiff  do  not  give  any  notice  of  his  intention  to  dispute  the 
petitioning  creditor's  debt,  &c.,  the  commission  and  proceedings  under  it  are 
primd  facie  evidence  for  the  defendant,  to  prove  the  trading,  petitioning 
creditor's  debt,  and  act  of  bankruptcy ;  though  the  plaintiff  may  notwith- 
standing call  witnesses  to  contradict  the  depositions  respecting  them.(/) 
So,  in  an  action  of  ty-espass,  against  the  assignees  of  a  bankrupt  and  their 
servants,  the  proceedings  may  be  read  in  evidence,  where  no  notice  has 
been  given  under  the  statute,  of  the  plaintiff's  intention  to  dispute  the  bank- 
ruptcy, although  there  are  other  defendants  on  the  record,  besides  the 
assignees  -.{g)  And  where  the  defendant,  in  an  action  at  the  suit  of  the 
assignee  of  a  bankrupt,  for  the  balance  of  an  account,  had  attended  a 
meeting  of  the  commissioners,  and  exhibited  the  account  between  him  and 
the  bankrupt,  and  afterwards  made  a  part  payment  to  the  plaintiff  on  that 
account;  the  court  held,  that  this  was  j9/'ma/acze  evidence,  as  against  the 
defendant,  that  the  plaintiff  was  assignee,  and  that  it  was  not  necessary  to 
produce  the  proceedings  under  the  commission,  the  defendant  not  having 
given  notice  of  his  intention  to  dispute  the  bankruptcy.  (7i)  But  where  the 
assignees  are  no  parties  to  the  record,  and  their  title  only  incidentally 
comes  in  question  in  the  course  of  the  defence,  it  must  be  proved  in  the 
same  manner  as  before  the  statute  ;  although  no  notice  of  contesting  the 
bankruptcy  has  been  given  by  the  opposite  party  -.{i)  And  the  defendant, 
though  he  has  not  given  notice  that  he  intends  to  dispute  the  proceedings 
under  the  commission,  may  nevertheless  give  evidence  to  disprove  the  act 
of  bankruptcy. (y<;) 

If  no  notice  be  given  by  the  opposite  party,  that  the  validity  of  the 
commission  is  meant  to  be  disputed,  the  petitioning  creditor's  debt  is  held 
to  be  sufficiently  proved,  by  the  deposition  of  the  petitioning  creditor  him- 
self before  the  commissioners.(?)  So,  in  an  action  fot  goods  sold  and 
delivered,  brought  by  the  assignees  of  A.,  against  whom  a  com- 
[  *671  ]  mission  *of  bankruptcy  issued,  on  the  petition  of  certain  persons 
who  alleged  that  a  debt  was  due  to  them  as  assignees  of  B.,  a 
bankrupt ;  the  court  held  that  the  petitioning  creditor's  debt  was  suffi- 
ciently proved  by  the  production  of  the  proceedings  under  the  commission, 
no  notice  of  an  intention  to  dispute  it  having  been  given ;  and  that  it  was 
not  incumbent  on  the  plaintiffs  to  give  any  other  evidence,  that  the  peti- 
tioning creditors  were  the  assignees  of  B.(aa)     And  where,  upon  the  trial 

(a)  4  Campb.  207, 

(6)  3  Taunt.  526.  {cc)  2  Campb.  324. 

{dd)  3  Campb.  251.     4  Campb.  207.  {ce)  Gow,  24. 

(/)  3  Campb.  424.  {g)  2  Stark.  Ni.  Pri.  182. 

{h)  1  Barn.  &  Aid.  677.  (0  4  Taunt.  741. 

{k)  2  Maule  &  Sel.  556.     Holt.  Ni.  Pri,  190.  \l)  2  Campb.  493. 

{aa)  2  Barn.  &  Cres.  560.     4  Dowl.  &  Ryl.  37,  S.  C. 


OF  DELWERIXG  THE  GENERAL  ISSUE,  ETC.  C71 

of  an  action  o^  trcsjjass,  in  -vvliicli  tlic  defendant  justified  under  a  commission 
of  bankrupt  issued  against  the  plaintiil',  no  notice  having  lieen  given  to  dis- 
pute the  connnission,  "which  was  put  in,  with  the  proceedings  under  it, 
and  a  perfect  petitioning  creditor's  debt  did  not  apjiear  upon  the  jiroceed- 
ings ;  the  court  of  Common  Pleas  nevertheless  held,  that  the  validity  of 
the  commission  could  not  be  disputed  :{b)  But  in  order  to  make  the 
depositions  evidence  of  the  petitioning  creditor's  debt,  where  no  notice 
has  been  given,  it  ought  to  appear  therefrom  that  the  debt  was  due  at  the 
time  of  the  act  of  bankruptcy. (t*)  And  a  deposition,  stating  that  the  bank- 
rupt absented  himself,  and  admitted  that  he  did  so  for  the  purpose  of 
avoiding  his  creditors,  but  not  specifying  the  time  of  such  admission,  is 
not  jJfimd  facie  evidence  to  prove  the  act  of  bankruptcy.(tZ)  In  an  action 
by  a  bankrupt  against  his  assignees,  to  try  the  validity  of  the  commission, 
where  notice  is  given  only  to  dispute  the  act  of  bankruptcy,  and  the  de- 
fendants read  the  two  depositions  on  the  file  of  the  proceedings,  which 
prove  the  trading  and  petitioning  creditor's  debt,  the  residue  of  the  pro- 
ceedings are  not  to  be  considered  in  evidence,  and  the  plaintiff's  counsel 
has  no  right  to  inspect  them.(c')  AVhcn  the  assignees  of  a  bankrupt  are 
nonsuited,  they  are  not  entitled,  under  the  above  acts,  to  the  costs  of 
proving,  after  notice,  the  petitioning  creditor's  debt,  trading,  and  act  of 
bankruptcy.  (/) 


The  general  issue  is  delivered,  in  the  King's  Bench,  to  the  plaintiff's 
attorney,  or  entered  in  the  general  issue  book,  kept  by  the  clerk  of  the 
judgments  ;{fj)  and  need  not  be  signed  by  counsel.  There  arc  also  certain 
common  pleas  in  that  court,  which  need  not  be  so  signed ;  such  as  j^lcne 
achninistravit,  bankruptcy  in  the  defendant, (/i)  a  special  nan  est  factum, 
solvit  ad  diem,{i)  comiyeruit  ad  diem  to  a  bail  bond,(^)  or  nul  tiel  record 
to  an  action  on  a  judgment  or  recognizance;  in  covenant,  when  the  plea 
concludes  to  the  country ;  and  in  trespass,  son  assault  demesne,  lihcriim. 
tenementum,  or  not  guilty  to  a  new  assignment.  These  pleas  must  be 
delivered  to  the  plaintiff's  attorney ;  and  not  entered  in  the  general  issue 
book,  or  filed  in  the  office  of  the  clerk  of  the  papers :  and  if  they  be  so 
entered  or  filed,  the  plaintiff  is  not  bound  to  notice  them,  but 
may  sign  *judgment  as  for  want  of  a  plea.(a)  So,  a  general  [  *672  ] 
demurrer  to  part  of  a  declaration,  and  the  general  issue  to  the 
rest,(66)  or  a  general  demurrer  to  a  plea  of  nil  debet  in  an  action  of  debt  on 
bond,(c(?)  must  be  delivered  to  the  opposite  attorney,  and  not  filed  with  the 
clerk  of  the  papers.  All  pleas  and  demurrers  upon  writs  of  error,  scire 
facias,  and  audita  querela,  ought  also  to  be  delivered,  in  the  King's 
Bench  -.{dd)  and,  by  a  late  rule  of  that  court,  {ee)  pleas  cannot  be  delivered 
after  ten  o'clock  at  night.     But,  except  in  the  foregoing  cases,  it  is  a  rule, 

(h)  4  Binp;.  31.  (r)   1  Stark.  Ni.  Tri.  45C. 

\d)  Id.  353 ;  and  see  8  Moore,  53G.     1  r.injr.  420,  S.  C. 

\e)  4  Camp.  191.  (/")  3  .Moore,  601.    1  Bred.  &  Bing.  2T5,  S.  C. 

Ig)  R.  T.  5  &  6  Geo.  II.  {b),  K.  B.    1  Chit.  Rep.  715. 

{h)  G  Diirnf.  k  East,  49G.     1  Chit.  Rep.  225.  («)  5  Duraf.  &  East,  661. 

{k)  2  Barn.  &  Aid.  392.     1  Chit.  Rep.  211,  S.  C. 

(a)  5  Durnf.  &  East,  661.     2  Barn.  &  Aid.  392.     1  Chit.  Rqi.  211,  S.  C.     Id.  225,  R.  P. 
2  Chit.  Rep.  295. 
(bb)  3  Dowl.  &  Rvl.  243.  {cc)  5  Barn.  &  Cres.  7G6.    8  Dowl.  &  Rvl.  609,  S.  C. 

\dd)  R.  T.  12  W.'lII.  (a),  K.  B.  {ee)  R.  M.  41  Geo.  III.  K.  b'.     1  East,  132. 


072  0^  SIGNING  AND  DELIVERING  PLEAS,  ETC. 

that  all  special  picas  must  be  signed  by  counsel ;(/)  and  filed  in  the  office 
of  the  clerk  of  the  papers,(f7)  who  makes  copies  of  them,  if  required,  for 
the  plaintiff's  attorney:  And  all  double  pleas  must  be  filed,  and  not  merely 
delivered  to  the  plaintiff's  attorney ;  though  two  pleas  be  pleaded,  which 
separately  need  only  have  been  delivered.(7iA)  But  where  an  avowry  was 
not  filed,  but  delivered  to  the  plaintiff's  attorney,  and  on  demand  of  plea 
in  bar,  and  to  know  if  defendant's  attorney  might  sign  judgment  of  non 
'pros,  or  whether  plaintiff  would  save  that  expense,  by  paying  the  rent  and 
costs  then  incurred,  plaintiff's  attorney  told  him,  he  might  sign  judgment 
if  he  pleased,  which  he  accordingly  did ;  the  court,  under  these  circum- 
stances, discharged  the  rule  for  setting  aside  the  judgment  w4th  costs. (w) 

In  the  Common  Pleas,  all  pleas,  whether  general  or  special,  are  either 
delivered  to  the  plaintiff's  attorney,  or  filed  with  the  prothonotaries :  The 
general  issue,  when  delivered  to  the  plaintiff's  attorney,  must  be  drawn 
up  at  length,  in  the  same  manner  as  when  it  is  filed  in  the  office  :(M-) 
And,  except  where  the  defendant  appears  in  person,  all  pleas  must  be 
pleaded  in  the  name  of  an  attorney  of  this  court. (?)  The  following  pleas 
did  not  formerly  require  a  Serjeant's  hand,  viz.  comperuit  ad  diem,  son 
assault  demesne,  j^lene  admiiiistravit,  riens  per  discent,  ne  unques  executor 
or  administrator,  7iul  ticl  record,  per  minas,  per  duress,  infra  oitatem, 
and  solvit  ad  diem  :{m)  But  it  is  now  usual  to  sign  all  these  pleas,  except 
comperuit  ad  diem,  nul  tiel  record,{n)  and  solvit  ad  diem,{o)  which  are 
considered  as  general  issues ;  and  it  has  been  determined,  that  a  plea  of 
non  assumpsit  infra  sex  annas, [p)  or  plea  of  bankruptcy  in  the  defend- 
ant,(^)  must  in  this  court  be  signed  by  a  serjeant ;  although  the 
[  *673  ]  latter  plea  need  not,  we  have  *seen,(a)  be  signed  by  counsel  in 
the  King's  Bench.  So,  all  double  pleas  are  required  to  be  signed 
by  a  Serjeant  -.[b)  and  if  a  plea,  which  ought  to  be  signed,  be  delivered  or 
filed  without  a  Serjeant's  hand,  the  plaintiff  may  sign  judgment,  as  if  no 
plea  had  been  pleaded  :(c)  And  although  a  defendant  conduct  his  cause  in 
person,  yet  if  he  file  a  special  plea,  it  is  a  nullity,  unless  it  be  signed  by  a 
seijeant  or  counsel. (c?) 

In  the  King's  Bench,  the  defendant  cannot  commonly  waive  the  general 
issue,  or  a  general  demurrer,  and  instead  thereof  give  a  special  plea  or  de- 
mmTer:(e)  but  it  is  said,  that  if  the  general  issue  be  not  entered,  the  de- 
fendant may  waive  it,  and  plead  specially,  without  leave  of  the  court,  in 
four  days;(_^)  or,  as  it  should  seem,  before  the  adjournment  day  of  the 
tQxm.,{gg)  or  within  the  first  five  days  of  the  ensuing  term  -jili)  and  even  after- 

(/)  R.  E.  18  Car.  11.  K.  B.  2  Chit.  Rep.  319.  1  Car.  &  P.  95,  a.  And  for  the  origin  and 
reason  of  the  signature  of  i^leas  by  counsel,  see  2  Wils.  74.  2  Barn.  &  Aid.  392.  1  Chit.  Rep. 
211,  S.  C. 

(g)  R.  T.  2  Jac.  I.  rcg.  1.  R.  T.  16  Car.  II.  R.  M.     2  W.  &  M.,  K.  B. 

(M)  2  East,  225. 

{ii)  Kingsbury  v.  Vanbergh,  E.  22  Geo.  III.  K.  B. 

(M)  Cas.  Pr.'C.  P.  126.     Pr.  Reg.  306,  S.  C.     Barnes,  239,  S.  P. 

{I)  Barnes,  259.    Pr.  Reg.  307,  S.  C.    A^ite,  566 ;  but  see  2  Bos.  &  Pul.  111.   Ante,  91,  (b). 

(m)  Cas.  Pr.  C.  P.  41.     Pr.  Reg.  282,  3,  S.  C.     Barnes,  365. 

(n)  2  Blac.  Rep.  816  ;  but  see  2  Wils.  74,  contra. 

(o)  5  Durnf.  &  East,  663  :  and  see  Imp.  C.  P.  6  Ed.  239. 

(p)  Cas.  Pr.  C.  P.  41.       '  (q)  3  Bos.  &  Pul.  171 

(a)  Ante,  671.  (b)  Imp.  C.  P.  6  Ed.  241. 

(c)  Pr.  Reg.  282.  (d)  Id.  3  Bos.  &  Pul.  l7l.    3  Taunt.  386.   Ante,  567. 

(e)  R.  T.  5  &  6  Geo.  II.  (b),  K.  B.     1  Wils.  29,  in  marg.     Rich.  Pr.  K.  B.  255. 

(/)  1  Ld.  Raym.  674.    3  Salli.  211,  274,  S.  C.  {gg)  Say.  Rep.  87. 

[h)  Prax.  utr.  Band,  37.    R.  T.  5  &  6  Geo.  II.  (6),  K.  B. 


OF  FILING  AND  WAIVING  PLEAS,  ETC.  673 

"wards,  wlicre  it  is  not  to  the  prejudice  or  delay  of  the  plaintift',  tlic  defend- 
ant, bj  leave  of  the  court,  may  withdraw  the  general  issue,  in  order  to 
plead  spccially,(/)  or  to  plead  it  again,  with  a  notice  of  8et-ofF,(A:)  or  of  the 
defendant's  intention  to  dispute  the  petitioning  cretlitor's  debt,  &c.,(?)  or 
upon  lu'inging  money  into  court. (//«)  lUit,  on  a  motion  to  strike  out  the 
plea  of  the  general  issue,  and  file  a  plea  that  the  jjlaintifl"  was  convicted  of 
felony,  the  defendant  must  produce  a  certified  copy  of  the  record  of  con- 
viction, and  prove  the  identity  of  the  party  convicted.(;i)  In  the  Common 
Pleas,  the  defendant  has  been  allowed,  under  circumstances,  to  withdraw 
a  general  demurrer,  and  plead  tlie  general  issue  ;(o)  or,  where  no  delay  or 
inconvenience  Avould  arise,  to  withdraw  the  general  issue  and  plead  spe- 
cially,(yjy?)  or  plead  it  again  with  a  notice  of  set-off,  or  upon  l)ringing  money 
into  court,((y(y)  or  to  add  a  special  plea  to  those  already  pleaded. (r)  But, 
in  general,  the  court  Avill  not  permit  a  demurrer  to  be  withdrawn,  after  a 
trial  has  been  lost  ;[s)  nor  unless  a  full  and  reasonable  cause  be  shown  for 
so  doing.(f)  And  they  would  not  formerly  have  given  the  defendant  leave 
to  withdraw  the  general  issue,  in  order  to  plead  it  again,  with  a  pica  of  the 
statute  of  limitations. («^) 

In  tlic  King's  Bench,  if  a  special  plea  or  special  demurrer  be  put  in,  and 
the  book  is  made  up,  and  delivered  to  the  defendant's  attorney,  he  may, 
by  the  ancient  practice  of  the  court,  if  not  under  terms  of  plead- 
ing *issuabli/,  strike  out  the  special  plea  or  demurrer,  and  return  [  *G74  ] 
it  with  the  general  issue,  or  a  general  demurrer. (««)  To  prevent 
this,  if  the  defendant  plead  a  dilatory  or  frivolous  plea,  the  court  in  term- 
time,  or  a  judge  in  vacation, (iZ')  will  order  him  to  abide  by  it,  or  plead 
some  other  plea,  peremptorily,  on  the  morrow  ;{ce)  or,  if  it  be  towards  the 
end  of  the  term,  (that  the  plaintiff  may  have  sufficient  time  to  give  notice 
of  trial,)  the  court  will  order  the  defendant,  if  he  will  not  abide  by  his  plea, 
to  plead  anotlier  instantli/,  provided  always  that  the  time  allowed  by  the 
common  rule  to  plead  be  expired  :{d)  And  the  practice  is  the  same,  Avith 
regard  to  frivolous  demurrers. (f?)  The  motion  for  these  purposes  is  a 
motion  of  course,  requiring  only  counsel's  signature.  But  where  the  de- 
fendant is  under  terms  of  pleading  issuahli/,  he  is  bound  to  abide  by  his 
plea  ;  and  cannot  afterwards  strike  out  a  special  plea  or  demurrer,  Avhen 
the  Ijook  is  made  up,  and  return  it  with  the  general  issue. ((•)  After  a  rule 
for  the  defendant  to  abide  by  his  plea,  the  plaintiff  cannot  sign  judgment 
as  for  want  of  a  plea,  without  an  application  to  the  court ;  although  such  a 
rule  will  not  prevent  the  court  from  allowing  the  plaintiff  to  sign  judg- 
ment.(/) 

When  the  defendant,  in  the  King's  Bench,  is  i-uloil  to  abide  by  his  plea, 
he  either  abides  by  it,(//)  or  pleads  another :  In  tlie  former  case,  he  may 

(t)  2  Sir.  906,  1181.     1  Wils.  1m,  254.     1  Blac.  Rep.  357.  (k)  2  Str.  12(m. 

(/)  Ante,  GG8.  (m)  2  Str.  1271.    I  Wils.  25-i,  S.  C.  cited. 

(n)  2  Chit.  Rep.  400.  (o)  B:irnc.=!,  337.    Cus.  Pr.  C.  P.  135,  S.  G. 

(pp)  Dames,  346.    2  Wils.  204,  254.  (77)  IJanies,  280,  362. 

(r)  /(/.  362.  (#)  Cas.  Pr.  C.  P.  141.    Barnes,  155,  S.  C. 

{t)  6  Moore,  495. 

(«)  2  Wils.  253  ;  and  sec  Barnes,  338.     1  Blac.  Rep.  35.    2  Durnf.  k  East.  390 :  but  see 
3  Durnf.  &  East,  124.     1  Bos.  &  Pul.  228.    Ante,  471. 

(au)  2  Salk.  515.     R.  T.  5  &  6  Geo.  II.  (&),  K.  B.     1  Wil?.  29. 

hb)  2  Bur.  781.    2  Ken.  483,  S.  C.  (cc)  Append.  Chap.  XXVII.  §  14. 

(d)  2  Salk.  515.    R.  T.  5  &  6  Geo.  II.  (b).  (e)    While  x.  Gicait,  T.  57  Geo.  III.  K.  B. 

(  f)  I  Chit.  Rep.  565,  in  notis ;  and  see  5  Manle  i  Sel.  518. 

(ff)  2  Str.  1234. 


Qfj^  OF  ABIDING  BY  PLEAS,  ETC. 

afterwiivJs  demur  to  tlic  plaintiff's  replication  ;  in  the  latter,  he  can  only 
plead  the  general  issue,(/i)  to  which,  however,  he  may  add  a  notice  of  set- 
off:(?')  And  whether  he  be  ruled  to  abide  by  his  plea  or  not,  it  is  a  general 
nde,  that  the  defendant  cannot  waive  a  special  plea  or  special  demurrer,  but 
in  order  to  plead  the  general  issue  ;(/i;)  though  leave  has  been  given  under 
circumstances,  for  the  defendant  to  add  a  plea  after  issue  joined,  and  even 
after  two  terms  have  elapsed  since  he  first  pleaded.(/)  In  the  Common 
Pleas,  the  defendant  must  always  abide  by  his  plea,  after  the  plaintiff  has 
replied  to  it ;  and  therefore  where  the  plaintiff  moved  that  the  defendant 
might  abide  by  his  plea,  the  court  rejected  the  motion  as  unnecessary. (m) 
But  after  a  special  plea  pleaded,  though  the  plaintiff  has  prepared  his  repli- 
cation, yet  the  defendant  in  that  court  may  the  same  term,  before  the  delivery 
or  filing  of  the  replication,  waive  his  special  plea,  and  plead  the  general 
issue,  without  paying  costs  :(n)  And  where  the  defendant  pleads  fairly,  and 
there  has  been  no  delay,(o)  the  court  on  motion  will  at  any  time  give  him 
leave  to  withdraw  a  special  plea,  and  plead  the  general  issue,  upon  payment 

of  costs,  in  order  to  let  in  a  trial  upon  the  merits.  But  where  a 
[  *675  ]   defendant  has  already  pleaded  a  tender,(p)  *or  the  plaintiff  has 

been  delayed, (a)  the  court  will  not  grant  this  indulgence  ;  and  in 
one  instance  it  was  denied,  where  the  defendant  had  pleaded  a  sham  plea  :{h) 
but  in  a  subsequent  case,  where  the  defendant's  attorney  not  having  received 
instructions  as  to  the  nature  of  the  defence  to  an  action,  pleaded  a  sham 
plea,  and  afterwards  swore  to  merits,  the  court  allowed  such  plea  to  be 
withdrawn  on  terms.((?)[l] 

(h)   1  Durnf.  &  East,  693.  (i)  Id.  694,  in  notis. 

{k)  2  Str.  960.     1  Wils.  29.  {I)   1  Wils.  223. 

{m)   Cooper  v.  Mansfield,  T.  31  Geo.  III.  C.  P.  Imp.  C.  P.  7  Ed.  258.    Ante,  484,  (w). 

{n)  Gas.  Pr.  C.  P.  155.  (o)  2  Wils.  391. 

ip)  Barnes,  330.  («)  2  Wils.  392. 

(6)  Id.  369.  (c)  7  Taunt.  278.     1  Moore,  28,  S.  C. 

[1]  By  the  late  act  for  the  further  amendment  of  the  law,  3  &  4  W.  IV.  c.  42,  |  1,  and  see 
2  Eep.  C.  L.  Cora.  24,  &c.,  89,  &c. ;  reciting  that  it'would  greatlj-  contribute  to  the  diminish- 
ing of  expense  in  suits  in  the  superior  courts  of  common  law  at  Westminster,  if  the  pleadings 
therein  were  in  some  respects  altered,  and  the  questions  to  be  tried  by  the  jury  left  less  at 
large  than  the}'  then  were,  according  to  the  course  and  practice  of  pleading  in  several  forms 
of  action ;  but  this  could  not  be  conveniently  done,  otherwise  than  by  rules  and  orders  of 
the  judges  of  the  said  courts,  from  time  to  time  to  be  made ;  and  doubts  might  arise,  as  to 
the  power  of  the  said  judges  to  make  such  alterations,  without  the  authority  of  parliament; 
it  was  enacted,  that  "  the  judges  of  the  said  superior  courts,  or  any  ei^ht  or  more  of  them, 
of  whom  the  chief  of  each  of  the  said  courts  should  be  three,  should  and  might,  by  any  rule 
0"  order  to  be  from  time  to  time  by  them  made,  in  term  or  vacation,  at  any  time  within  ^we 
years  from  the  time  when  that  act  should  take  effect,  make  such  alterations  in  the  mode  of 
pleading  in  the  said  courts,  and  in  the  mode  of  entering  and  transcribing  pleadings,  judg- 
ments, and  other  proceedings,  in  actions  at  law,  and  such  regulations,  as  to  the  payment  of 
costs  and  otherwise,  for  carrying  into  effect  the  said  alterations,  as  to  them  might  seem  ex- 
pedient; and  all  such  rules,  orders,  or  regulations,  should  be  laid  before  both  houses  of  par- 
liament, if  parliament  were  then  sitting,  immediately  upon  the  making  of  the  same  ;  or  if 
parliament  were  not  sitting,  then  within  five  days,  after  the  next  meeting  thereof;  and  no 
such  rule,  order,  or  regulation,  should  have  effect,  until  six  weeks  after  the  same  should 
have  been  so  laid  before  both  houses  of  parliament ;  and  any  rule  or  order  so  made  should, 
from  and  after  such  time  aforesaid,  be  binding  and  obligatory  on  the  said  courts  and  all  other 
courts  of  common  law,  and  on  all  courts  of  error,  into  which  the  judgments  of  the  said  courts, 
or  any  of  them,  should  be  carried  by  any  writ  of  error,  and  be  of  the  like  force  and  effect, 
as  if  the  provisions  contained  therein,  had  been  expressly  enacted  by  parliament." 

In  pursuance  of  the  power  given  by  the  law  amendment  act,  general  rules,  we  have  seen, 
were  made  by  all  the  judges  of  the  supei'ior  courts  of  common  law  at  Westminster,  in  Hilary 
term,  1834;  which,  after  Ijeing  laid  the  requisite  time  before  both  houses  of  parliament,  and 
receiving  their  sanction,  came  into  operation  on  the  first  day  of  Easter  term  following.    These 


OF  REPLICATIONS,  ETC.  *676 

^CHAPTER   XXVIII. 
Of  Replications  and  subsequent  Pleadings. 

When  tlie  defendant  has  put  in  his  plea,  he  may  rule  the  plaintiff  to 
reply,(a)  by  obtaining  a  rule  from  the  master,  in  the  King's  Bench,  on  the 

(fl)  Append.  Chap.  XX VIII.  ?  1,  2,  3. 

rules,  ^vhicll  are  con-^iJered  a.s  statutory,  and  part  of  the  law  of  the  land,  llnjfaj  v.  Smith,  6 
Car.  &  P.  GG2,  are  of  two  kinds :  first,  general  rules  and  refi;ulations,  relating  to  all  plead- 
ings, &c. ;  and  secondly,  rules  relating  to  the  mode  of  pleading  in  the  particular  actions  of 
assuvipsit,  covenant,  debt,  detinue,  case,  and  trespass.  The  former  of  these  rules  prescribe  the 
form  of  declaring  in  a  second  action,  after  a  plea  in  abatement  of  the  non-joinder  of  another 
person,  R.  PI.  Gen.  II.  4  W.  IV.  reff.  20.  5  Barn,  k  Ad.  Append,  vii.  10  Bing.  4C9.  2 
Cronip.  k  JI.  I'J.  Ante,  210,  11 ;  of  a  plea  of  payment  of  money  into  court.  Id.  reg.  17. 
Ante,  Cha]).  XXV.;  and  the  rejjlication  thereto.  Id.  rcg.  19.  Ante,  Chap.  XXV.  Post, 
Chap.  XXVIII.;  of  a  pleajouw  daricn  continuance,  or  after  the  last  pleading,  or  issuing  of 
the  jury  process.  Id.  reg.  2.  Po-it,  Chap.  XXXVII. ;  and  of  a  demurrer,  and  joinder  in  de- 
murrer. /(/.  reg.  14.  Post,  Chap.  XXIX.  Jlaterial  alterations  are  also  made  thereby,  in 
the  mode  of  entitling  and  entering  declarations,  and  other  pleadings.  Id.  rcg.  1.  Ante,  207, 
8.  Post,  Chap.  XXX.;  the  beginning  and  conclusion  of  pleas.  Id.  reg.  9,  11,  13;  the 
entry  of  proceedings  on  the  record  for  trial,  or  on  the  judgment  roll.  Id.  reg.  15.  Post, 
Chap.  XXXIV. ;  and  of  all  judgments,  whether  interlocutory  or  final.  Id.  reg.  3.  Ante,  295. 
Post,  Chap.  XXXIX. ;  and  the  fees  chargeable  in  respect  of  issues.  Id.  rcg.  IG.  Post,  Chap. 
XXX.  The  statement  of  the  venue  in  the  body  of  the  declaration,  or  any  subsequent  plead- 
ing. Id.  reg.  8.  Ante,  209  ;  the  formal  defence  in  a  plea.  Id.  reg.  10;  the  rule  or  order  to 
pay  money  into  court,  except  under  the  3  &  4  W.  IV.  c.  42,  §  18.  Id.  rcg.  18.  Ante,  Chap. 
XXV.;  the  use  of  a  protestation  in  any  pleading.  Id.  reg.  12.  Post,  Chap.  XXVIII.;  the 
entry  of  continuances,  with  certain  exceptions.  /(/.  reg.  2.  Ante,  227,  8.  Post,  Chap.  XXX. ; 
and  of  warrants  of  attorney  to  sue  or  defend.  Id.  rcg.  4.  Post,  Chap.  XXX. ;  arc  abolished 
by  these  rules  :  and  the  use  of  several  counts.  Id.  reg.  5,  G,  7.  Ante,  21G,  &c. ;  pleas,  avow- 
ries, or  cognizances.  Id.  ih. ;  are  prohibited  thereby,  unless  a  distinct  subject-matter  of 
complaint,  or  ground  of  answer  or  defence,  is  intended  to  be  established  at  the  trial,  in  re- 
spect of  each  count,  or  plea,  &c. 

The  principal  ol)ject  of  the  latter  rules,  or  those  which  relate  to  pleadings  in  particular 
actions,  seems  to  have  been,  to  limit  the  operation  of  the  general  issues  formerlj-  used,  and 
confine  the  pleas  in  denial  substituted  in  lieu  thereof,  in  actions  upon  contracts,  to  a  direct 
denial  of  the  contract.  Passenger  v.  Brookes,  1  Bing.  N.  R.  587.  1  Scott,  5G0.  1  Hodges,  123. 
7  Car.  &  P.  110,  S.  C. ;  and  in  actions  for  wrongs,  to  a  denial  only  of  the  breach  of  duty,  or 
wrongful  act,  alleged  to  have  been  committed  by  the  defendant.  Pcarcy  v.  Walter,  G  Car. 
&  P.  232  ;  making  him  plead  specially  in  denial  or  any  other  material  fact  stated  in  the  de- 
claration, and  all  matters  in  confession  and  avoidance,  or  discharge  of  the  cause  of  action. 
3  Rep.  C.  L.  Com.  54,  5  ;  59,  GO.  These  latter  rules,  however,  do  not  contain  any  particular 
directions  as  to  the  mode  of  pleading  in  actions  of  account,  annuilg,  debt,  or  scire  facias  on 
matters  of  record,  as  judgments,  or  recognizances,  or  debt  on  penal  statutes  ;  nor  in  the  action 
oi  replevin,  or  trespass  to  iha person;  though  these  actions  are  subject  to  the  general  rules 
and  regulations  applicable  to  all  pleadings,  &c.  And  there  is  &  proviso  in  the  act,  3  &  4 
W.  IV.  c.  42,  g  1,  that  "  no  such  rule  or  order  shall  have  the  effect  of  depriving  any  person 
of  the  power  of  pleading  the  general  issue,  and  of  giving  the  special  matter  in  evidence,  in 
any  case  wherein  he  then  was,  or  thereafter  should  be  entitled  so  to  do,  by  virtue  of  any  act 
of  parliament  then  or  thereafter  to  be  in  force." 

In  actions  upon  contracts,  the  plaintiff,  by  the  above  statutory  rules,  must  prove,  on  the 
plea  of /("«  assumpsit,  in  all  actions  of  assumpsit,  except  on  bills  of  exchange  and  jiromissory 
notes,  the  express  contract  or  promise  alleged  in  the  (leclaration,  or  the  matters  of  fact  from 
which  the  contract  or  promise  alleged  may  be  implied  liy  law  ;  as,  in  an  action  on  a  warranty, 
the  fact  of  tiic  warranty  having  l)een  given  upon  the  alleged  consideration  ;  in  an  action  on 
a  policy  of  insurance,  the  subscription  to  the  alleged  policy  by  the  defendant;  in  actions 
agiunst  carriers  and  other  bailees,  for  not  delivering  or  not  keeping  goods  safely,  or  not  re- 
turning them  on  request.  R.  PI.  H.  4  W.  IV.  Assumpsit,  reg.  I,  §  1.  5  Barn.  &  Ad.  Append, 
vii.  10  Bing.  469.  2  Cromp.  k  M.  20;  and  in  actions  against  ugent.i  for  not  accounting,  an 
express  contract  to  the  effect  alleged  in  the  declaration,  and  such  bailment  or  employment 
as  would  raise  a  promise  in  the  law  to  the  effect  alleged  ;  in  an  action  of  indebitatus  as- 
sumpsit for  goods  sold  and  delivered,  the  sale  and  delivery-  of  the  goods  in  point  of  fact ;  and 


Q'jQ  OF  KEPLICATIONS, 

back  of  tlic  pica ;  -wliicli  is  entered  with  the  clerk  of  the  rules,  and  a  copy 
served  on  the  plaintiiF's  attorney :  In  the  Common  Pleas,  the  rule  to  reply 

in  the  like  action  for  money  bad  and  received,  botli  tlie  receipt  of  the  money  and  the  exist- 
ence of  those  facts  which  make  such  receipt  by  the  defendant  a  receipt  to  the  use  of  the 
plaintill".    R.  PI.  II.  4  W.  IV.  Assumpsit,  reg.  I.  §  1.    5  Barn.  &  Ad.  Append,  vii.    10  Bing. 

469.  2  Cromp.  &  M.  20.  In  debt  on  specialty,  or  covenant,  the  plaintiff  must  prove,  on  the 
plea  of  non  est  factum,  the  execution  of  the  deed,  in  point  of  fact.  Id.  Covenant  and  Debt,  reg. 
II.  §  1.  5  Barn.  &  Ad.  Append,  viii.  10  Bing.  470.  2  Cromp.  &  M.  21 ;  and  in  actions  of 
debt  on  simple  contract,  other  than  on  bills  of  exchange  and  promissory  notes,  the  plea  of 
7iiinquam  indebitatus  has  the  same  operation  as  the  plea  of  non  assumpsit  in  indebitatus  as- 
sumpsit;  Id.  I  1.     5  Barn.  &  Ad.  Append,  viii.     10  Bing.  470.     2  Cromp.  &  M.  22. 

In  actions  for  wrongs,  independently  of  contract,  the  plaintiff  must  prove,  on  the  plea  of 
non  detinct  in  an  action  of  detinue,  the  detention  of  the  goods  by  the  defendant;  and,  on  the 
plea  of  not  guilty  in  actions  on  the  case,  the  breach  of  duty,  or  wrongful  act,  alleged  to  have 
been  committed  by  the  defendant ;  as,  in  an  action  on  the  case  for  a  nuisance  to  the  occupa- 
tion of  a  house,  by  carrying  on  an  offensive  trade,  that  the  defendant  carried  on  the  alleged 
trade  in  such  a  way  as  to  be  a  nuisance  thereto;  in  an  action  on  the  case  for  obstructing  a 
right  of  way,  the  obstruction  complained  of;  in  an  action  of  trover,  the  conversion  of  the 
plaintiff"'s  goods.    R.  PI.  H.  4  AY.  lY.  Detinue,  reg.  III.    5  Barn.  &  Ad.  Append,  ix.    10  Bing. 

470.  2  Cromp.  &  M.  22  ;  and  in  an  action  of  slander,  the  speaking  of  the  words,  or  publica- 
tion of  the  libel  complained  of,  and  that  they  were  spoken  or  published  maliciously,  and 
in  the  sense  imputed.  Empson  v.  Fairfax,  13  Leg.  Obs.  222  ;  and,  if  spoken  and  published 
of  the  plaintiff  in  his  office,  profession,  or  trade,  that  they  were  so  spoken  or  published  with 
reference  thereto.  The  plaintiff  must  also  prove,  in  an  action  for  an  escape,  the  neglect  or 
defiiult  of  the  sheriff,  or  his  officers  ;  and  in  action  against  a  carrier,  the  loss  or  damage  for 
which  the  action  is  brought.  R.  PI.  H.  4  W.  IV.  Case,  reg.  IV.  §1.5  Barn.  &  Ad.  Append, 
ix.  10  Bing.  470.  2  Cromp.  &  M.  22.  In  actions  of  trespass  quare  clausum  fregif,  he  must 
prove,  on  the  plea  of  not  guilty,  that  the  defendant  committed  the  trespass  alleged,  in  the 
locus  in  quo.  R.  PL  H.  4  W.  IV.  Trespass,  reg.  V.  §  2.  5  Barn.  &  Ad.  Append,  ix.  10  Bing. 
470.  2  Cromp.  &  M.  23  ;  and  in  actions  of  trespass  de  bonis  asportatis,  that  he  committed  the 
trespass  alleged,  by  taking  or  damaging  the  goods  mentioned  in  the  declaration.  Id.  §  3,  5, 
Barn.  &  Ad.  Append,  x.     10  Bing.  471.    2  Cromp.  &  M.  24. 

It  should  also  be  remembered,  that  by  the  law  amendment  act,  3  &  4  "W.  IV.  c.  42,  §  8, 
''no  plea  in  abatement  for  the  non-joinder  of  any  person  as  a  co-defendant  shall  be  allowed 
in  any  court  of  common  law,  unless  it  shall  be  stated  in  such  plea,  that  such  person  is  re- 
sident within  the  jurisdiction  of  the  court ;  and  unless  the  place  of  residence  of  such  per- 
son shall  be  stated,  with  convenient  certainty,  in  an  affidavit  verifying  such  plea:  and  that 
to  any  plea  in  abatement,  in  any  court  of  law,  of  the  non-joinder  of  another  person,  the 
plaintiff  may  reply  that  such  person  has  been  discharged  by  bankruptcy  and  certificate,  or 
under  an  act  for  the  relief  of  insolvent  debtors."    3  &  4  W.  IV.  c.  42,  §  9. 

The  plea  of  nil  debet  was  abolished,  and  another  plea  substituted  in  lieu  thereof,  by  the 
late  statutory  rules  of  pleading.  R.  PI.  H.  4  W.  IV.  Covenant  and  Debt,  reg.  II.  |  2,  3.  5 
Barn.  &  Ad.  Append,  viii.  10  Bing.  470.  2  Cromp.  &  M.  22.  Ante,  338 ;  which  declare 
that  "the  plea  of  nil  debet  shall  not  be  allowed  in  any  action;"  and  that  "  in  actions  of  debt 
on  simple  contract,  other  than  on  bills  of  exchange  and  promissory  notes,  the  defendant  may 
plead  that  he  never  was  indebted,  in  manner  and  form  as  in  the  declaration  alleged  ;  and 
such  plea  shall  have  the  same  operation  as  the  plea  of  non  assumpsit  in  indebitatus  assump- 
sit: and  all  matters  in  confession  and  avoidance  shall  be  pleaded  specially,  as  therein  directed 
in  actions  of  assumpsit."  In  other  actions  of  debt,  in  which  the  plea  of  nil  debet  has  been 
hitherto  allowed,  including  those  on  bills  of  exchange  and  promissory  notes,  it  is  declared 
by  another  statutory  rule.  R.  PI.  H.  4  W.  IV.  Covenant  and  Debt,  reg.  II.  §  4.  5  Barn.  & 
Ad.  Append,  viii.  10  Bing.  470.  2  Cromp.  &  M.  22,  that  "the  defendant  shall  deny  speci- 
fically some  particular  matter  of  fact  alleged  in  the  declaration,  or  plead  specially  in  con- 
fession and  avoidance." 

The  form  of  plea  to  an  action  of  debt,  prescribed  by  the  above  rules,  must  be  adhered  to 
in  terms :  and  therefore,  a  plea  that  the  defendant  "never  did  oive,"  was  holden  to  be  bad  on 
special  demurrer ;  the  form  being  that  he  "  never  was  indebted."  Smedley  v.  Joyce,  1  Tyr.  k 
G.  84.  2  Cromp.  M.  &  R.  721.  "l  Gale,  357.  4  Dowl.  Rep.  421.  11  Leg.  Obs.  484,  S.  C.  In 
an  action  of  debt  for  goods  sold  and  delivered,  if  the  defence  be  that  the  goods  were  sold  on 
a  credit  which  had  not  expired  at  the  time  of  bringing  the  action,  this,  it  has  been  holden 
in  the  King's  Bench,  must  be  specially  pleaded.  Edmunds  v.  Harris,  6  Car.  &  P.  547.  4 
Nev.  &  M.  182.  2  Ad.  &  E.  414,  S.  C.  1  Chit.  Jun.  PL  204 ;  291 ;  378,  9  ;  and  see  Rose.  Law 
Tracts,  21,2;  but  from  subsequent  decisions  it  seems  that  this  ground  of  defence  may  be 
given  in  evidence  on  the  plea  of  nunquam  indebitatus.  Taylor  v.  Hillary,  1  Cromp.  M.  &  R. 
741.  5  Tyr.  Rep.  373.  3  Dowl.  Rep.  461.  1  Gale,  23.  9  Leg.  Obs.  494,  S.  C.  Per  Parke, 
B.  Knapp  v.  Harden,  1  Gale,  47.     Cousins  v.  Paddon,  2  Cromp.  M.  &  R.  553.    5  Tyr.  Rep. 


AND  SUBSEQUENT  PLEADINGS.  676 

is  given  on  u,  prcccipc,  witli  tlic  secondaries.  This  rule  may  be  given  at 
any  time  in  term,  or  within  sixteen  days  after,  in  the  King's  Bench,(6)  or 

(/')  Imp.  K.  B.  10  Ed.  2C4.  And  the  practice  is  the  same  in  the  Common  Pleas,  except 
that  after  Easter  term,  the  rule  must  be  given  in  ten  days.     Imp.  C.  I*.  7  Ed.  2'J^. 

535.  4  Dowl.  Rep.  488,  S.  C.  Jones  v.  Nanney,  1  Meeson  &  W.  33G.  1  Tyr.  &  G.  638.  5 
Dowl.  Rep.  90,  S.  C.  Per  J'arkf,  B.;and  see  Rose.  Law  Tracts,  21,  2.  Ante,  345.  And  in  an 
action  of  debt,  a  plea  that  parcel  of  tiie  money  claimed  was  the  residue  of  a  sum  agreed  to 
be  paid  for  a  boat,  warranted  sound  and  fit  for  use,  but  wiiich  was  afterwards  found  to  be 
of  no  greater  value  than  the  amount  i)aid  at  the  time  of  sale,  was  holden  to  he  bad  on  de- 
murrer, as  amounting  to  tlie  general  issue.  iJicken  v.  Ncalc,  5  Dowl.  Re[).  17G.  1  Meeson 
&  W.  55G,  S.  C.  In  an  action  of  debt  for  work  and  labor,  on  an  implied  contract,  the  defen- 
dant, on  the  plea  that  he  never  was  indebted,  may  go  into  evidence  to  j)rove  that  the  work 
was  done  under  such  circumstances  as  show  that  there  was  no  implied  contract  to  pay  any 
thing;  but  upon  tiiis  plea,  the  defendant  cannot  go  into  evidence  of  misconduct,  except  such 
as  goes  to  show  that  there  was  no  implied  contract  to  pay.  Cooper  v.  W/iilelioiisc,  G  ('ar.  & 
P.  445,  per  Aldcrson,  li. ;  and  see  Cousins  v.  Faddon,  2  Cromp.  M.  <fe  R.  553.  5  Tyr.  Rep. 
535.  4  Dowl.  Rep.  488,  S.  C.  Ante,  344,  5,  6.  And  in  an  action  of  debt,  brought  by  two  of 
three  Syndics  of  a  French  bankrupt,  it  was  doubted,  whether  the  objection  to  the  non- 
joinder of  the  tliir<l  .Syndic,  if  available,  could  be  taken  on  the  plea  of  ml  debet.  Alivon  v. 
Furnival,  1  Cromp.  M.  <fe  R.  277.    4  Tjt.  Rep.  751,  S.  C. 

The  late  statutory  rules  of  pleading  do  not  contain  any  particular  directions  as  to  the  mode 
of  pleading  in  the  actions  of  account,  annuity,  debt,  or  scire  facias,  on  matters  of  record,  as 
judgments  or  recognizances,  or  debt  on  penal  statutes  ;  though  these  actions  are  subject  to 
the  general  rules  and  regulations  applicable  to  all  pleadings. 

In  detinue,  the  defendant  might  formerly  have  given  in  evidence  under  the  general  issue  of 
nan  detinet,  his  property  in  the  goods,  or  a  gift  of  them  from  the  plaintiff;  for  that  proved  he 
detained  not  the  plaintiff's  goods.  Co.  Lit.  283.  But  now,  by  a  late  statutory  rule  of  plead- 
ing. R.  PI.  H.  4  W.  IV.  Detinue,  reg.  III.  5  Barn.  &  Ad.  Append,  i.x.  10  Bing.  470.  2 
Cromp.  ifc  J[.  22;  "the  plea  of  non  detinet  shall  o])erate  as  a  denial  of  the  detention  of 
the  goods  by  the  defcudant,  but  not  of  the  plaintiff's  ])roperty  therein ;  and  no  other 
defence  than  such  denial,  shall  be  admissible  under  that  plea."  In  this  action,  therefore, 
the  defendant  must,  under  the  above  rule,  specially  deny  the  plaintiff's  property  in  the 
goods,  wlien  necessary  for  his  defence ;  or  he  niiiy  plead  a  gift  of  them  from  the  plaintiff,  or 
some  other  matter  of  fact  to  prove  that  the  defendant  is  entitled  to  the  possession  of  them  ; 
as  that  they  were  pawned  to  him  for  money  which  still  remains  unpaid.  Co.  Lit.  283  ;  or 
that  he  has  alien  thereon.  Alexander  \.  M-Gowan,  Sit.  after  M.  T.  3  Geo.  IV.  per  Abbott, 
Ch.  J. ;  or,  if  the  action  be  founded  upon  a  bailment,  that  they  were  delivered  over  to  the 
person  for  whose  use  they  were  bailed.  Com.  Dig.  tit.  Pleader,  2  X.  G ;  and  see  1  Chit.  PL 
114,430.  Tidd.  Prac.  9  Ed.  G52.  ^l«^c,  329.  In  an  action  of  fA7/«M<' against  an  attorney, 
for  not  delivering  up  papers  to  his  client  after  his  bill  has  been  paid,  if  the  defendant  plead 
non  detinet,  the  plaintiff  must  prove  that  the  papers  were  in  the  defendant's  possession  ;  but 
evidence  that  the}'  were  firoduced  by  his  agent  before  the  master,  on  the  taxation  of  his  bill, 
is  suflicient  proof  of  his  possession.  Anderson  \.  Passman,  7  Car.  &  P.  193.  And  as  the  gist 
of  the  action  of  detinue  is  the  detainer,  the  bailment  in  the  declaration  is  in  general  imma- 
terial ;  therefore,  the  defendant  may  set  uj)  in  his  plea,  a  bailment  difl'erent  from  that  stated 
in  the  declaration  ;  and  the  ]daintiff,  without  traversing  it,  may  show  that  the  detainer  is 
wrongful  notwithstanding,  without  being  guilty  of  a  departure,  d'led.stanc  (or  O'lcdstone) 
V.  Jlen-itt,  1  Tyr.  Rep.  445.     1  Cromp.  &  J.  5C5.     1  Price,  N.  R.  71,  S.  C. 

In  actions  on  the  case,  the  defendant,  upon  the  plea  of  not  guilty,  might  formerly  not  only 
have  put  the  plaintiff  upon  proof,  of  the  whole  charge  contained  in  the  declaration,  but 
might  have  ofl'ered  any  matter  in  excuse  or  justification  of  it.  Keijina  v.  Tuchin,  2  Mod.  27G, 
T.  Newton  v.  Creswick,  3  Mod.  1G6.  Anon.  Com.  Rep.  273.  Barber  v.  JJixon,  1  Wils.  44. 
Brown  V.  Best,  Id,  175 ;  or  he  might  have  set  up  a  former  recovery,  release,  or  satisfaction. 
Bird  V.  Randall,  3  Bur.  1353.  1  Blac.  Rep.  388,  S.  C.  For  an  action  on  the  case  was  con- 
sidered as  founded  upon  the  mere  justice  and  conscience  of  the  plaintiff's  case,  and  in  the 
nature  of  a  bill  in  eipiity,  and  in  efl'ect  was  so  ;  ami  therefore  such  a  former  recovery,  release, 
or  satisfaction,  need  not  have  been  plcadeil,  but  might  have  been  given  in  evidence  under 
the  general  issue  ;  since  whatever  would  in  equity  and  conscience,  according  to  the  circum- 
stances of  the  case,  bar  the  plaintiff's  recovery,  might  in  this  action  have  been  given  in  evi- 
dence by  the  defendant,  because  the  plaintiff  must  recover  upon  the  justice  and  conscience 
of  his  case,  and  ui)on  that  only.  Jd.  Ibid.  Tidd.  Prac.  9  Ed.  G51.  1  Chit.  PL  432.  But  by 
a  late  statutory  rule  of  pleading.  R.  PI.  II.  4  W.  IV.  Case,  rey.  IV.  ^,  1.  5  Barn.  &  Ad.  Ap- 
pend, ix.  10  Bing.  470,  71.  2  Cromp.  &  M.  22,  3,  it  is  declared  that,  ''in  actions  on  the 
cast",  the  plea  of  not  guilty  shall  operate  as  a  denial  only  of  the  breach  of  duty,  or  wrongful 


676  or  REPLICATIONS, 

Exchequer  ;(c)  and,  in  the  Common  Pleas,  when  time  to  plead  has  been 
obtained,  if  the  defendant  plead,  and  give  a  rule  to  reply,  before  the 

(c)  R.  H.  IG  Geo.  III.  in  Scac.  Man.  Ex.  Append.  220. 

act,  alleged  to  have  been  committed  by  the  defendant,  and  not  of  the  facts  stated  in  the  in- 
ducement ;  and  no  other  defence  than  such  denial  shall  be  admissible  under  that  plea  :  all 
other  pleas  in  denial  shall  take  issue  on  some  particular  matter  of  fact  alleged  in  the  decla- 
ration, and  all  matters  in  confession  and  avoidance  shall  be  pleaded  specially,  as  in  actions 
of  assianjjsif."    Id.  I  2.    5  Barn.  &  Ad.  Append,  ix.    10  Bing.  4'71.    2  Cromp.  &  M.  23. 

In  an  action  on  the  case  for  an  injury  to  real  property  corporeal,  by  nuisances  to  houses, 
lands,  water-courses,  &c.,  to  the  prejudice  of  the  plaintiff's  possession  or  reversion,  or  to 
real  property  incorporeal,  by  obstructing  rights  of  loay,  &c.,  it  vras  formerly  incumbent  on 
the  plaintifl"  to  prove,  on  the  general  issue,  all  the  facts  stated  in  the  inducement  to  the  de- 
claration, as  well  as  the  wrongful  act  complained  of,  and  the  consequential  damages  arising 
therefrom  ;  and  the  defendant  was  allowed  to  give  the  whole  of  his  case  in  evidence  under 
the  general  issue.  But,  by  a  late  statutory  rule  of  pleading.  R.  PI.  H.  4  W.  IV.  Case,  reg. 
IV.  §  1.  5  Barn.  &  Ad.  Append,  ix.  10  Bing.  471.  2  Cromp.  &  M.  22,  it  is  declared  that 
"  in  an  action  on  the  case  for  a  nuisance  to  the  occupation  of  a  house,  by  carrying  on  an  offen- 
sive trade,  the  plea  of  not  guilty  will  operate  as  a  denial  only  that  the  defendant  carried  on 
the  alleged  trade  in  such  a  way  as  to  be  a  nuisance  to  the  occupation  of  the  house,  and 
Avill  not  operate  as  a  denial  of  the  plaintiff's  occupation  of  the  house  ;  and  in  an  action  on 
the  case  for  obstructing  a  right  of  w«y,  such  plea  will  operate  as  a  denial  of  the  obstruction 
only,  and  not  of  the  plaintiff's  right  of  way."  In  an  action  for  a  nuisance,  however,  where 
thedefendant  pleads  not  guilty,  the  plaintiff  must  still,  notwithstanding  the  above  rule,  not 
only  prove  the  existence  of  the  nuisance,  but  that  the  defendant  was  the  person  who  caused 
it.  Ban-son  v.  Moore,  1  Car.  &  P.  25.  But  since  the  above  rule,  the  plea  of  not  guilty  to  a 
declaration  in  case,  for  the  wrongful  diversion  of  water  from  the  plaintiff's  mill,  puts  in 
issue  the  mere  fact  of  the  diversion,  and  not  its  wrongful  character.  Frankum  v.  Earl  of 
Falmouth,  4  Nev.  &  M.  330.  2  Ad.  &  E.  452.  1  Har.  &  W.  1.  6  Car.  &  P.  529,  S.  C.  ;  and 
see  5  Nev.  &  M.  268,  (a).  Therefore,  where  the  fact  of  the  diversion  was  proved,  but  the 
plaintiff  failed  to  show  his  right  to  the  water,  the  court  ordered  the  verdict,  which  had 
been  entered  for  the  defendant  on  the  issue  of  not  guilty,  to  be  set  aside,  and  a  verdict  to 
be  entered  for  the  plaintiff  but  without  damages.  And,  in  an  action  on  the  case  for  a 
nuisance  to  the  plaintiff's  property,  by  digging  a  trench  in  an  adjoining  close,  the  defendant 
cannot  now,  under  the  plea  of  not  guilty,  raise  any  objection  as  to  defective  proof  of  the  in- 
ducement in  the  declaration.  DwA-e-sv.  G^os^Zm^r,  3  Dowl.  Rep.  619.  1  Scott,  570.  1  Hodges, 
120,  S.  C.  To  an  action  on  the  case  for  a  nuisance  in  making  a  noise,  &c.,  near  plaintiff's 
dwelling-house,  which  he  was  possessed  of  for  a  term  of  years,  the  defendants  pleaded  that 
they  had  been  possessed  of  certain  workshops  in  which  the  noise  was  made  ten  year  before 
the  plaintiff  was  possessed  of  the  term  in  his  house,  and  that  they  had  always  during  that 
time  made  the  noise  in  question,  which  was  necessary  for  carrying  on  the  trade ;  and  the 
plea  was  holden  to  be  bad.  Elliotson  v.  Feetham,  2  Bing.  N.  R.  134.  2  Scott,  174.  1  Hodges, 
259,  S.  C.  And,  in  an  action  on  the  case  by  a  lodger,  for  removing  a  water-closet,  &c.,  if 
the  defendant  merely  plead  the  general  issue,  he  cannot  give  in  evidence  that  the  water- 
closet  was  useless  before  he  removed  it ;  but,  in  mitigation  of  damages,  he  may  go  into 
evidence  to  show  that  the  plaintiff  and  his  family  were  bad  lodgers,  and  that  he  did  the  acts 
complained  of  to  cause  them  to  quit  the  house.  Underwood  v.  Burrows,  7  Car.  &  P.  26. 
Where  the  defendant  claims  a  right  of  common  or  of  way,  &c.,  he  must  set  forth  in  his  plea 
a  strict  legal  right  thereto.  Ryder  v.  Smith,  3  Durnf.  &  E.  766.  Grimstead  v.  Marlowe,  4 
Durnf.  &  E.  7l7,  719. 

In  trover,  it  was  formerly  necessary  for  the  plaintiflp  to  prove  on  the  general  issue  of  not 
guilty,  his  property  in  the  goods  for  the  conversion  of  which  the  action  was  brought,  and 
their  value,  and  that  the  defendant  actually  converted  them  to  his  own  use,  or,  having  them 
in  his  possession,  refused  to  deliver  them  to  the  plaintiff"  on  demand,  which  was  evidence  of 
a  conversion.  In  this  action,  it  was  commonly  said,  there  could  l^e  no  special  plea,  except 
a  release ;  but  this  was  a  mistake  ;  for  the  defendant  might  have  pleaded  specially  any  thing 
else  which,  admitting  the  plaintiff  had  once  a  cause  of  action,  went  to  discharge  it,  as  the 
statute  of  limitations.  Coupcr  v.  Toicers,  1  Lutw.  99.  Pratt  V.  Swainc,  8  Barn.  &  C.  285. 
2  Man.  &  R.  350,  S.  C. ;  or  a  former  recovery,  &c.  Lechmore  v.  Toplady,  1  Show,  146.  The 
bankruptcy  of  the  plaintiff,  before  the  cause  of  action  accrued,  might  have  been  given  in 
evidence  in  this  action,  under  the  plea  of  not  guilty.  Webb  v.  Fox,  7  Durnf.  &  E.  391 ;  and 
see  Tidd  Prac.  9  Ed.  651.  1  Chit.  PI.  436.  Worswick  v.  Bcswick,  10  Barn.  &  C.  676.  Jolt 
T.  Fisher,  5  Car.  &  P.  514,  per  Tindal,  Ch.  J. ;  but  see  Alston  v.  Underhill,  1  Cromp.  &  M. 
492.  3  Tyr.  Rep.  427.  2  Dowl.  Rep.  26,  S,  C. :  but  where  the  bankruptcy  happened  after 
the  cause  of  action  accrued,  it  should  it  seems  have  been  pleaded  specially.     But  now,  by 


AND  SUBSEQUENT  PLEADINGS. 


676 


expiration  of  that  time,  the  rule  to  reply  will  be  of  no  avail,  unless  he 
give  notice  of  his  plea.((7)  If  the  rule  be  not  given  tiWfom'  terms  have 
elapsed,  after  plea  pleaded,  the  plaintiff  must  have  a  term's  notice(c)  of 
the  defendant's  intention  to  give  it,  unless  the  cause  hath  been  stayed  by 
injunction  or  privilege :(/)  which  notice  must  be  given  before  the  essoin 
day  of  the  terra  ;{g)  and  it  is  usual  to  give  the  rule  on  the  day  after  the 
term  is  expired. (A)  And  where  a  cause  has  stood  over  for  several  terms, 
the  rule  to  reply  must  be  given  of  the  term  in  Avhich  the  judgment  of 
non  i^ros  is  signed. (/)  The  rule  to  reply  expires  in  fcmr  days  exclusive 
after  service,  in  the  King's  Bench  ;  and  Sunday,  or  any  holyday  on  which 
the  court  does  not  sit,  or  the  office  is  not  open,  if  it  be  not  the  last,  is  to 
be  accounted  a  day  within  the  rule. (A:)  If  the  plaintiff  do  not  reply  Avithin 
the  time  limited,  or  obtain  an  order  for  further  time,  wliich  may  be  obtained 
on  a  judge's  summons,  in  like  manner  as  an  order  for  further  time  to  plead, 
the  defendant  may  sign  a  judgment  of  non  jjros  ;{l)  and  it  is  not  necessary 
for  him,  in  the  King's  Bench,  to  demand  a  replication,  the  service  of  the 


(d)   1  Now  Rep.  C.  P.  273. 

(/)  R.  T.  5  &  G  Geo.  II.  (6),  K.  B. 

{/>)  Imp.  K.  15.  10  Ed.  2G4. 

(k)  R.  T.  1  Geo.  II.  (a),  K.  B. 

(l)  Append.  Chap.  XXVIII.  §  5,  6. 


(f)  Append.  Chap.  XXVIII.  §  4. 

{(/)  2  Str.  1104. 

({)  2  Chit.  Rep.  283. 


a  late  statutory  rule  of  pleading.  R.  PI.  H.  4  W.  IV.  Case,  rcg.  IV.  ?  1.  5  Barn  &  Ad.  Ap- 
pend, ix.  10  Bing.  471.  2  Cromp.  &  M.  23  ;  it  is  declared  that,  "  in  an  action  for  convert- 
ing the  jjlaintiff 's  goods,  the  plea  of  not  guilty  will  operate  as  a  denial  of  the  conversion 
only,  and  not  the  plaintiff's  title  to  the  goods."  The  intention  of  this  rule  was  to  confine  the 
operation  of  the  plea  of  not  guilty  to  the  denial  of  the  fact  of  conversion  only,  and  not  to 
allow  the  defendant  to  give  evidence  of  its  Icf/alitji,  any  more  tlian  on  a  plea  of  not  guilty  to 
an  action  on  the  case  for  obstructing  a  right  of  way,  the  defendant  could  be  allowed  to  show 
that  the  obstruction  was  lawful,  or,  under  the  like  plea  to  an  action  for  diverting  a  water- 
course, to  give  evidence  that  such  diversion  was  justifiable,  by  licence  or  prescription.  Stan- 
cliffe  V.  Ilardinck,  2  Cromp.  M.  &  R.  1.  5  Tyr.  Rep.  551.  1  Gale,127.  3  Dowl.  Rep.  762,  S.  C, 
per  Parke,  B. ;  and  see  Farrar  v.  Besu-ick,  1  Meeson  &  W.  682. 

If  the  defendant  mean  to  deny  the  plaintiff's  title  to  the  goods,  he  should  plead  that  the 
plaintiff  was  not  possessed  of  them  as  of  his  own  property,  or  as  of  his  own  proper  goods  and 
chattels,  as  alleged  in  the  declaration :  and,  under  this  pica,  it  will  be  incumbent  on  the 
plaintiff  to  prove  his  title  to  the  goods;  and  the  defendant  may  give  in  evidence  any  matter 
tending  to  disprove  it.  But  it  seems,  that  a  plea  that  the  goods  arc  not,  nor  were  the  pro- 
perty of  the  plaintiff,  as  alleged  in  the  declaration,  and  concluding  to  the  country,  Avhere 
the  declaration  alleges  that  the  plaintiff  was /^Mfsscc?  of  the  goods  as  of  his  own  property, 
is  an  informal  plea,  and  would  be  bad  on  special  demurrer.  Samuel  v.  Morris,  6  Car.  &  P. 
G20,  per  Parke,  B. ;  and  see  Ilou-ell  v.  Wliite,  1  Moody  &  R.  400.  And  where  the  plaintiff  in 
trover  claims  under  a  sale,  the  defendant,  on  a  plea  that  the  plaintiff  was  not  possessed  of 
the  goods  as  of  his  own  property,  cannot  show  the  sale  to  have  been  fraudulent:  the  fraud 
must  be  pleaded.     Iloinll  v.   White,  1  Moody  k  R.  Ai)Q,  per  Paltcson,  5. 

The  conversion  which  is  put  in  issue  by  the  plea  of  not  guilty  since  the  new  rules,  is  a 
conversion  infnet,  and  not  merely  a  wrongful  conversion.  Ante,  307.  And  wherever  there 
has  been  a  conversion  in  fact,  and  tiie  defendant  insist  that  such  conversion  was  lawful,  he 
must  confess  and  avoid  it,  by  pleading  specially  the  right  or  title  by  virtue  of  which  1;,e  was 
justified  in  the  conversion.  But  where  there  has  been  no  actual  conversion  of  the  goods,  but 
merely  a  refusal  to  deliver  them  on  demand,  a  defendant  who  pleads  not  guilty  in  an  action 
of  trover,  admits  thereby  only  that  the  plaintiff  has  some  property  in  the  goods,  in  resj)ect  of 
which  he  would  be  entitleil  to  recover  against  the  defendant;  and  such  admission  does  not 
preclude  the  defendant  from  showing  that  he  is  tenant  in  common  with  the  jilaintiff.  Stan- 
cliffe  v.  llurdwick,  2  Cromp.  M.  &  R.  1.  5  Tyr.  Rej).  551.  1  Gale,  127,  3  Dowl.  Rep.  702, 
S.  C,  per  Parke,  B. ;  and  see  Forror  v.  Besuick,  1  Meeson  &  W.  082.  Vernori  wShipton,  2 
Meeson  k  W.  9  ;  or  is  otherwise  entitled  to  ret:iin  the  possession  of  the  goods.  And  where 
the  defendant  in  such  case  has  a  lien  thereon,  a  doubt  has  been  entertained  as  to  the  neces- 
sity of  his  pleading  it  specially;  though  as  the  lien  may  be  considered  as  matter  of  title,  the 
safer  way  seems  to  be  to  plead  it  specially,  as  in  the  action  oi  detinue ;  and  see  Townley 
T.  Cmmj),  4  Ad.  &  E.  58.    Rose.  Law  Tracts,  63,  4. 


(5Y5  OF  SETTING  ASIDE  PLEAS. 

copy  of  tlic  rule  being  deemed  in  that  court  a  demand  of  itself  :(?>?)  but,  in 
the  Common  Pleas,  a  replication  must  be  demanded  in  writing,  by  the 
defendant's  attorney  ;(w)  after  which,  if  a  replication  be  not  delivered,  or 
filed  at  the  prothonotaries'  office,  in  due  time,  he  may  sign  a  judgment  of 
non  pro8.{6)  And  it  seems  that  such  judgment  may  be  signed 
[  *677  ]  by  one  of  two  defendants  in  ^'trespass,  who  has  pleaded  sepa- 
rately: (a)  or  for  not  replying  to  a  plea,  as  to  one  of  several 
counts  in  a  declaration. (5)  This  is  a  final  judgment,  on  which  the  defend- 
ant may  tax  his  costs,  and  take  out  execution. (c) 

Within  the  time  limited  by  the  rule  to  reply,  or  order  for  further  time, 
the  plaintiff  either  moves  the  court  to  set  aside  the  plea,  if  unfounded  ;  or, 
admitting  it  to  be  well  founded,  in  point  of  fact  as  Avell  as  law,  he  discon- 
tinues his  action,(fZ)  enters  a  nolle  prosequi,{e)  stet  jjrocessus,  or  cassetur 
hilla  vel  breve,{f)  or  in  an  action  against  an  executor  or  administrator, 
takes  judgment  of  assets  in  futuro,{g)  &c. ;  or,  admitting  the  fact,  he 
denies  the  law  by  a  demurrer ;  or,  admitting  the  law,  he  denies  the  fact, 
or  confesses  and  avoids  it,  or  concludes  the  defendant  by  matter  of  estoppel. 
If  the  defendant  plead  in  abatement  after  a  general  imparlance,  or  to  the 
jurisdiction  of  the  court  after  a  special  imparlance,  the  plaintiff,  we  have 
seen, (A)  may  sign  judgment,  or  apply  to  the  court  by  motion  to  set  aside 
the  plea.  We  have  also  seen,  that  when  it  is  doubtful  whether  the  plea  be 
issuable,  the  better  way,  in  term  time,  is  to  move  the  court  to  set  it  aside  -.{i) 
And  in  general,  if  it  be  not  clear  that  a  bad  plea  may  be  considered  as  a 
nullity,  the  safest  course  is  not  to  sign  judgment,  but  to  take  issue  thereon, 
demur,  or  move  the  court  to  set  it  aside. (Z:)  When  the  defendant  pleads  a 
release,  fraudulently  obtained  from  the  nominal  plaintiff,  to  the  prejudice  of 
the  party  really  interested,  and  for  whose  benefit  the  action  is  brought,  or 
from  one  of  several  plaintifis  to  the  prejudice  of  the  rest,  the  court  on 
motion  will  set  aside  the  plea,  and  order  the  release  to  be  delivered  up  to  be 
cancelled :  Thus,  where  the  obligor  of  a  bond,  after  notice  of  its  being 
assigned,  took  a  release  from  the  obligee,  and  pleaded  it  to  an  action  brought 
by  the  assignee,  in  the  name  of  the  obligee,  the  court  of  Common  Pleas  set 
the  plea  aside  ;  and  under  these  circumstances,  would  not  allow  the  obligor 
to  plead  payment  of  the  bond.(??)  So,  if  a  person  who  is  sued  by  a  landlord, 
in  the  name  of  his  tenant,  procure  a  release  from  the  nominal  plaintiff,  the 
court  will  order  the  release  to  be  delivered  up,  and  permit  the  landlord  to 
proceed  -.[mm)  And  where  a  landlord,  with  the  permission  of  his  bailiff,  who 
had  made  a  distress  for  rent,  commenced  an  action,  in  the  bailiff's  name, 
against  the  sherifi",  for  taking  insufficient  pledges,  and  the  bailiff  afterwards, 
without  the  landlord's  privity,  executed  a  release  to  the  sherifi",  who  pleaded 
it  p)ui8  darien  continuance,  the  court  of  Common  Pleas  set  aside  the  plea, 

(m)  Imp.  K.  B.  10  Ed.  263.  (n)  Append.  Chap.  XXVIII.  §  3. 

(o)  Imp.  K.  B.  10  Ed.  263,  4;  496.     Imp.  C.  P.  1  Ed.  294,  5. 
(a)  Fhilpoi  V.  Mullcr,  T.  23  Geo.  III.  K.  B.  (h)  4  Barn.  &  Cres.  135. 

(c)  Imp.  K.  B.  10  Ed.  263,  4;  496.     Imp.  C.  P.  T  Ed.  294.  5. 
\d)  Append.  Chap.  XXYIII.  §  9,  10  {e)  Id.  g  11,  12,  13. 

(/)  Id.  Chap.  XXVI.  §  7. 

{g)  Id.  Chap.  XXII.  §  10,  &c.  21,  &c.;  and  see  1  Chit.  PI.  4  Ed.  498. 
\h)  Ante,  463,  4;  476,  638,  9;  and  see  ante,  534,  636. 
\i)  Ante,  473.  {k)  Ante,  565. 

{II)  1  Bos.  &  Pul.  447  ;  and  see  the  case  of  Craib  and  icife  \.  D'Aeth,  T.  30  Geo.  III.     7 
Duraf.  &  East,  670,  (6).     7  Moore,  617.     1  Younge  &  J.  362. 

[mm)  Doug.  407;  and  see  7  Durnf.  &  East,  670,  (a).     1  Bos.  &  Pul.  448,  {a). 


OF  DISCONTINUANCE.  077 

and  ordered  the  release  to  be  delivered  up  to  be  cancelled.(w)  So,  a  plea 
of  release  by  one  of  several  plaintiffs  was  set  aside  by  the  court  of 
King's  Bench,  without  costs,  on  the  terms  of  indemnifying  *the  [  *G78  ] 
plaintiffs  who  had  released  the  action,  against  the  costs  of  it 
although  the  consent  of  such  plaintiffs  had  not  been  obtained  before  action 
brought ;  it  appearing  that  no  consideration  had  been  given  for  the  release, 
and  that  the  plaintiffs  sued  as  trustees  for  the  creditors  of  an  insolvent  per- 
son.(a)  But,  except  a  very  strong  case  of  fraud  be  made  out,  the  court  will 
not  control  the  legal  power  of  a  co-plaintiff"  to  release  the  action  :{b)  And 
unless  the  plea  be  set  aside,  a  judge  atwiSi  j)r«<shas  no  equitable  jurisdic- 
tion, and  can  only  look  to  the  strict  legal  rights  of  the  parties  upon  the 
record :  Therefore  if,  in  an  action  for  goods  sold,  the  defendant  prove  a 
receipt  in  full  signed  by  the  plaintiff",  evidence  cannot  be  admitted,  by  way 
of  answer  to  this  defence,  that  the  plaintiff  had  assigned  all  his  effects  for 
the  benefit  of  his  creditors,  that  the  action  was  brought  by  his  trustees  in  his 
name,  that  no  money  passed  Avhen  the  receipt  was  given,  and  that  the 
plaintiff  on  the  record  and  the  defendant  had  colluded  together  to  defeat 
the  action. (c) 

If  the  plaintiff  perceive  that  he  cannot  maintain  his  action,  it  is  usual  for 
him  to  take  out  a  rule  for  leave  to  discontinue.  Discontinuance  in  a  civil 
suit,  is  either  of  process,  or  of  pleading :  The  former,  before  judgment,  is 
the  act  of  the  clerk  :  but  after  judgment,  it  is  the  act  of  the  court :((?)  the 
latter,  of  which  something  has  been  already  said,(e)  is  the  act  of  the  party. 
The  process,  or  proceedings  in  a  suit,  should  be  regularly  continued  from 
term  to  term,  or  from  one  day  to  another  in  the  same  term,(/)  between  the 
commencement  of  the  suit  and  final  judgment ;  and  if  there  be  any  lapse 
or  want  of  continuance  that  is  not  aided,  the  parties  are  out  of  court,  and 
the  plaintiff"  must  begin  de  novo.  Before  declaration,  there  is,  properly 
speaking,  no  continuance  ;(r/)  though  we  have  seen, (A)  that  the  parties  by 
consent  might  have  obtained  a  day  before  declaration,  which  was  called  a 
dies  datus  prece  jmrtium ;  After  declaration,  and  before  issue  joined,  the 
proceedings  are  continued  by  imparlance  ;{i)  after  issue  joined,  and  before 
verdict,  hj  vicecomes  non  misit  breve ;(k)  and  after  verdict  or  demurrer, 
by  cwia  advisari  vult.(l)  In  the  King's  Bench,  the  practice  is  never  to 
enter  continuances  till  the  plea  roll  is  made  up,  though  the  declaration  be 
of  four  or  five  terms  standing  :(w)  And  after  plea  pleaded,  though  the 
plaintiff  have  day  to  reply  for  several  terms,  yet  no  mention  need  be  made 
on  the  roll,  of  any  imparlance  or  continuance. (wt)  After  judgment  by 
default,  and  writ  of  inquiry  awarded,  there  is  no  subsequent  continuance 
between  the  parties,  in  the  Common  Pleas  ;(o)  but  in  the  King's  Bench,  it 
is  otherwise.  Continuances  may  be  entered  at  any  time  :(^') 
*And  in  a  late  case,  the  court  granted  leave  to  enter  continu-  [  *G79  ] 

(n)  7  Taunt.  48.  (a)   I  Chit.  Rep.  300. 

(b)  7  Taunt.  421 ;  and  see  4  Moore,  192.     7  Moore,  356. 

(c)  1  Canipb.  392  ;  and  see  1  Chit.  Rep.  391,  in  rwtis.     6  Moore,  497. 
\d)  Cart.  51.     1  Salk.  177.     1  Wils.  40.     Id.  303,  cites  Com.  Rep.  419. 

U)  Ante,  660,  61.  (/)   1  Str.  492.     1  Wils.  40. 

\g)  Gilb.  C.  P.  40.  \h)  Ante,  421. 

(i)  Append.  Chap.  XXII.  §  6,  10,  41.     Chap.  XXX.  g  2,  4,  6. 

h)  Append.  Chap.  XXX.  §  46,  49,  52. 

h)  Append.  Chap.  XXII.  §  41.     Chap.  XXLX.  g  3,  4.     Chap.  XXXIX.  g  3,  4. 

(m)   1  Salk.  179.     2  Ld.  Rajin.  872,  S.  C. 

(nn)  5  Co.  75.     2  Wms.  Saund.  5  Ed.  1,  e,  (2). 

(o)  11  Co.  6.  b.  Yelv.  97.     1  Rol.  Abr.  486.  (/»)  Ante,  162. 


679 


OF  DISCONTINUANCE. 


anccs  after  verdict,  in  order  to  arrive  at  the  justice  of  the  case. (a)  The 
want  of  a  continuance  is  aided  by  the  appearance  of  the  parties  :{h)  And 
as  a  discontinuance  can  never  be  objected  pendente  placito,{c)  so  after 
judgment,  it  is  cured  by  the  statute  of  jeofails. (c?)  It  has  even  been  hohlcn, 
that  a  continuance  may  be  added,  after  judgment  in  a  jpe^iaZ  action  ;(e) 
but  then,  there  must  be  something  to  amend  by.(/) 

A  rule  to  discontinue(^)  may  be  had  either  before  or  after  declaration  ;(/») 
and  it  is  usually  granted  upon  payment  of  costs. (^')  An  executor  or  ad- 
ministrator is  liable  to  costs  upon  a  discontinuance,  when  he  has  knowingly 
brought  a  wrong  action  ;{Jc)  but  when  that  is  not  the  case,  he  may  have 
leave  to  discontinue,  without  paying  costs  :(Z)  And  where,  upon  setting 
aside  a  verdict  for  the  plaintiff,  the  costs  are  directed  to  abide  the  event, 
and  then  the  plaintiff"  discontinues  the  action,  the  defendant  is  not  enti- 
tled to  the  costs  of  the  trial. (m)  The  rule  to  discontinue  is  a  side-bar  rule  ; 
and  may  be  had  as  a  matter  of  course,  from  the  clerk  of  the  rules  in  the 
King's  Bench,  at  any  time  before  trial  or  inquiry  :(w)  and  leave  has  been 
given  to  discontinue  after  argument,  and  before  judgment  on  demurrer. (o) 
And  even  after  a  special  verdict,  the  plaintiff"  may  discontinue,  by  leave  of 
the  court,  because  that  is  not  complete  and  final ;  but  in  this  case  it  is  a 
great  favour  :{p]j)  And  it  is  never  granted  after  sl  general  verdict,(p^) 
or  writ  of  inquiry  executed  and  returned,(g)  nor  after  a  peremptory  rule 
for  judgment  on  demurrer. (r)  In  rejjlevin,  the  avowant,  though  an  actor, 
cannot  have  a  rule  to  discontinue  :(s)  And  where  a  rule  to  discontinue  is 
obtained  by  unfair  practice,  the  court  will  discharge  it.(^) 

The  court  of  Common  Pleas  will  not  permit  the  demandant  on  a  writ  of 
right  to  discontinue  ;(w)  And  a  discontinuance  is  not  allowed  in  that  court, 
after  a  special  verdict,  in  order  to  adduce  fresh  proof  in  contradiction  to  the 
verdict. (.'»)  The  plaintiff"  cannot  have  leave  to  discontinue,  pending  a  rule 
for  judgment  as  in  case  of  a  nonsuit :(?/)  And  where  he  moved  to  discon- 
tinue upon  payment  of  costs,  after  judgment  given  for  him  on  demurrer,  but 
not  entered  of  record,  and  a  writ  of  error  brought,  and  bail  put  in  there- 
upon, the  court  refused  to  make  a  rule  to  discontinue,  without 
[  *680  ]  *payment  of  costs  on  the  writ  of  error.(a«)  After  notice  of  trial 
given,  and  regularly  countermanded,  the  plaintiff  in  the  Common 
Pleas,  obtained  a  rule  to  discontinue,  upon  payment  of  costs ;  and  it  appear- 
ing that  after  the  notice  of  trial,  and  before  the  countermand,  a  witness  for 
the  defendant,  who  resided  in  Londo7i,  had  set  out  for  the  York  assizes,  the 
question  was,  whether  the  expense  of  this  witness  could  be  allowed  the 

(a)  1  Durnf.  &  East,  618.  (b)   1  Wils.  40.     6  Durnf.  &  East,  255. 

(c)  Cro.  Jac.  211. 

(d)  32  Hen.  VIII.  c.  30.  Cro.  Eliz.  489.  Cro.  Jac.  528.    3  Lev.  374.    6  Durnf.  &  East,  255. 

(e)  2  Str.  1227.     1  Wils.  125,  S.  C.  in  Cam.  Scac.     6  Durnf.  &  East,  255,  618. 

(/•)   1  Wils.  303.  (ff)  Append.  Chap.  XXVIII.  g  7,  8. 

{/i)  R.  M.  10  Geo.  II.  (6),  K.  B.  (i)  Conih.  299. 

(i)  Cas.  Tr.  C.  P.  79.  Barnes,  169,  S.  C.  3  Bur.  1451.  1  Blac.  Eep.  451,  S.  C.  2  New 
Rep.  C.  P.  72. 

(l)  2  Str.  871.     4  Bur.  1927.    8  Moore,  689.         (m)   1  Barn.  &  Aid.  566. 

(n)  1  Salk.  178,  9.  (o)  3  Lev.  440.     1  Str.  76,  116. 

(pp)   1  Salk.  178.  (q)  Carth.  86. 

(r)  1  Salk.  172  ;  and  see  2  Wms.  Saund.  5  Ed.  73,  (1). 

(«)   1  Str.  112.  (t)  4  Bur.  2532. 

(u)  1  New  Rep.  C.  P.  64.     2  New  Rep.  C.  P.  429. 

(x)  2  Blac.  Rep.  815.  .  (y)  Barnes,  316. 

(era)  Barnes,  169. 


OF  DISCONTINUANCE.  G80 

defendant  in  costs :  The  court  held  that,  as  the  countermand  was  regular, 
the  costs  for  this  witness  could  not  be  allowed. (i) 

The  rule  to  discontinue  is  obtained  from  tlie  clerk  of  the  rules  in  the 
King's  Bench,  or  secondaries  in  the  Common  Pleas  ;  but  in  the  latter  court, 
if  it  be  after  plea  pleaded,  tlic  defendant's  attorney  must  first  consent  to  a 
rule  in  the  treasury  chamber  in  term  time,  or  before  a  judge  in  vacation  ;{c) 
or  else  there  must  be  a  rule  to  show  cause.  And  upon  a  rule  to  discon- 
tinue, the  plaintiff  must  get  an  appointment  from  the  master  in  the  King's 
Bench,  or  prothonotaries  in  the  Common  Pleas,  to  tax  the  costs,  and  servo 
a  copy  of  it  on  the  defendant's  attorney ;  it  having  been  holden,  that  the 
service  of  a  rule  to  discontinue,  without  an  appointment  to  tax  the  costs,  is 
not  of  itself  a  discontinuance  of  the  action. (J)  In  the  King's  Bench,  the 
master  will  tax  the  costs  ex  i)arte,  if  the  defendant's  attorney  do  not  attend 
on  the  first  appointment  :(c)  But  in  the  Common  Pleas,  another  copy  of  the 
rule  must  be  made,  in  case  of  non-attendance,  and  a  second  appointment 
obtained  thereon,  and  served  as  before,  and  so  a  third  time ;  and  if  he  do 
not  attend  the  third  appointment,  the  prothonotaries  will  tax  the  costs  ex 
pa7'te.{f)  The  costs  being  taxed,  are  to  be  forthwith  paid  ;  otherAvisc  the 
plaintiff  may  be  compelled  to  proceed  in  the  action :  for  the  rule  being 
conditional,  is  no  stay  of  proceedings  ;  and  it  has  been  holden  that,  for  the 
non-payment  of  these  costs,  the  plaintiff  is  not  liable  to  an  attachment. (^) 
An  averment  in  an  action  for  a  malicious  arrest,  that  the  suit  is  wholly 
ended  and  determined,  is  proved  by  evidence  of  the  rule  to  discontinue 
upon  payment  of  costs,  and  that  the  costs  were  taxed  and  paid,  without 
producing  the  roll,  with  judgment  of  discontinuance  entered  upon  it.(7/) 
And  where  a  rule  to  discontinue,  on  payment  of  costs,  was  obtained  by  the 
plaintiff  on  the  6th  of  February,  but  the  costs  were  not  taxed  until  the  11th 
of  March ;  the  court  held  that,  when  the  costs  were  taxed,  and  the  judgment 
of  discontinuance  entered  up,  it  related  back  to  the  day  when  the  rule  for 
a  discontinuance  was  obtained,  and  that  the  action  was  to  be  considered 
discontinued  from  that  time. (2)  So,  a  rule  for  discharging  the 
defendant  out  of  custody  at  the  *plaintiff's  suit,  in  an  action  on  [  *681  ] 
a  bill  of  exchange,  and  that  all  further  proceedings  in  the  cause 
should  be  stayed,  and  the  bill  of  exchange  delivered  up  to  the  defendant, 
has  been  deemed  evidence  of  the  termination  of  the  suit.(rt)  But  it  seems 
that  a  judge's  order  to  stay  proceedings  on  payment  of  costs,  and  proof  of 
such  payment,  is  not  sufficient  evidence  that  the  first  suit  is  at  an  cn(\.{hb) 
And  where  it  was  averred  in  the  declaration,  that  the  defendant  voluntarily 
permitted  his  suit  to  be  discontinued  for  want  of  prosecution,  and  there- 
upon it  was  considered  by  the  court  that  he  should  take  nothing  by  his 
h'lW,  jjront  pat et  2)er  rccordiim,  whereb}'-  the  suit  was  ended  and  determined  ; 
it  was  holden  that  this  averment  was  not  proved  by  the  production  of  a 

[h)  1(1.  307.     Sed  qua're ;  for  in  a  Inte  case,  the  cxpcnsea  of  a  witness,  under  similar  rir- 
cumstanccs,  were  allowed  by  the  jirothonotarv  ;  and  sec  1  Price,  381.    Poxt.  Chap.  XXXV. 
(c)  Imp.  C.  P.  7  Ed.  723.  '  {d)  G  Durnf.  &  East,  7G5. 

{/)  Imp.  K.  B.  10  Ed.  G75.  [f)  Imp.  C.  P.  7  Ed.  723,  4. 

(r/)  7  Durnf.  &  East,  6;  and  sec  2  Str.  1220.     3  Maule  &  Sel.  153.     5  Barn  &  Aid.  905. 

1  Dowl.  k  Rvl.  55G,  S.  C. 

{h)  4  Cauipb.  2U.  1  Stark.  Ni.  Pri.  48,  S.  C.  ;  and  see  2  Barn  k  Crcs.  C93.  4  Dowl.  &  EyI. 
187,  S.  C.     4  Barn.  &  Cres.  21.     G  Dowl.  &  Ryl.  12,  S.  C. 
(?)  1  Barn.  &  Crcs.  649.     3  Dowl.  &  Kyi.  2,  S.  C. 
\a)  3  Bing.  297,  303. 
{bb)  4  Campb.  214.     1  Stark.  Ni.  Pri.  48,  S.  C.     1  Esp.  Rep.  80  ;  and  see  11  East,  319. 

2  New  Rep.  C.  P.  473. 


(381  OF  A  NOLLE  PllOSEQUL 

rule  to  discontinue ;  but  the  record  having  been  averred,  ought  to  have 
been  proved. (c) 

A  nolle  prosequi  is  an  acknowledgment  or  agreement  by  the  plaintiff, 
that  he  will  not  further  prosecute  his  suit,  as  to  the  whole  or  a  part  of  the 
cause  of  action ;  or,  where  there  are  several  defendants,  against  some  or 
one  of  tliem.((Z) 

On  a  plea  of  coverture,  &c.,  if  the  plaintiff  cannot  answer  it,  he  may 
enter  a  7iolle  prosequi  as  to  the  whole  cause  of  action ;  but  the  defendant 
in  such  case  is  entitled  to  costs,  under  the  8  Eliz.  c.  2,  §  2.(e)  So,  if  the 
defendant  demur  to  one  of  several  counts  of  a  declaration,  the  plaintiff 
may  enter  a  nolle  2)7'osequi  as  to  that  count  which  is  demurred  to,  and 
proceed  to  trial  upon  the  other  counts ;(/)  or  if  he  join  in  demurrer,  and 
obtain  judgment,  he  may  enter  a  nolle  prosequi  as  to  the  issue,  and  pro- 
ceed to  a  writ  of  inquiry  on  the  demurrer  :[g)  And  if  the  plaintiff  enter  a 
nolle  prosequi  as  to  any  of  the  counts  in  a  declaration,  he  is  not  entitled  to 
costs  on  such  counts. (7i)  But,  after  a  demurrer  for  7nis-joinder,  the  plain- 
tiff cannot  cure  it,  by  entering  a  nolle  prosequi  :{i)  And  if  there  be  a 
demurrer  to  a  declaration,  consisting  of  two  counts,  against  two  defendants, 
because  one  of  them  was  not  named  in  the  last  count,  the  plaintiff  cannot 
enter  a  7iolle  prosequi  on  that  count,  and  proceed  on  the  other. (^) 

If  there  be  a  demurrer  to  part,  and  an  issue  upon  other  part,  and  the 
plaintiff  prevail  on  the  demurrer,  it  was  in  one  case  holden  that,  without 
a  nolle  p>rosequi  as  to  the  issue,  he  cannot  have  a  writ  of  inquiry  on  the 
demurrer ;  because,  on  the  trial  of  the  issue,  the  same  jury  will 
[  *682  ]  ascertain  *the  damages  for  that  part  which  is  demurred  to.(a) 
But,  in  a  subsequent  case,(5)  where  the  declaration  consisted  of 
four  counts,  to  three  of  which  there  was  a  plea  of  7ion  assump)sit,  and  a 
demurrer  to  the  fourth ;  and,  after  judgment  on  the  demurrer,  the  plain- 
tiff took  out  a  writ  of  inquiry,  and  executed  it :  this  was  moved  to  be  set 
aside,  there  being  no  nolle  prosequi  on  the  roll;  and  it  was  insisted,  that 
the  plaintiff  ought  to  take  out  a  venire,  as  well  to  try  the  issue,  as  to  inquire 
of  the  damages  upon  the  demurrer:  Sed  per  Curiam,  "that  is  indeed  the 
course,  where  the  issues  are  carried  down  to  trial,  before  the  demurrer  is 
determined,  and  in  that  case  the  jury  give  contingent  damages ;  but  here, 
the  demurrer  being  determined,  and  the  plaintiff  being  able  to  recover  all 
he  goes  for  upon  the  fourth  count,  there  is  no  reason  why  we  should  force 
him  to  carry  down  the  record  to  nisi prius  ;  and  as  to  the  want  of  a  nolle 
prosequi  upon  the  roll,  he  may  supply  that,  when  he  comes  to  enter  the 
final  judgment ;  if  not,  the  defendant  will  have  the  advantage  of  it  upon 
a  writ  of  error :  The  judgment  upon  the  inquiry  must  stand." 

(c)  5  Price,  540;  and  see  1  Moore  &  P.  191. 

(d)  Cro.  Car.  239,  243.  2  Rol,  Abr.  100.  And  for  the  nature  and  effect  of  a  nolle  prosequi, 
and  in  what  cases  it  may  or  may  not  be  entered,  see  8  Co.  58.  Cro.  Jac.  211,  S.  C.  Hardr. 
153.  1  Wms.  Saund.  5  Ed.  207,  in  noiis.  1  Ld.  Ravm.  598,  &c.  1  Wils.  90.  3  Durnf.  & 
East,  511.  (e)  3  Durnf.  &  East,  511.     Pos«,  Chap.  XL. 

(/)  2  Salk.  456.     1  Bos.  &  Pul.  157.     6  Taunt.  444.     2  Marsh.  144,  S.  C. 

(5^)   1  Salk.  219.     2  Salk.  456.     1  Str.  532,  574.  (A)   16  East,  129.     2  Marsh.  145. 

{i)  1  H.  Blac.  108 ;  and  see  2  Chit.  Rep.  697. 

{k)  4  Durnf.  &  East,  360;  and  see  1  Wms.  Saund,  5  Ed.  285,  (5). 

(a)  1  Salk.  219.     12  Mod.  558,  S.  C. 

[b)  1  Str.  532.  8  Mod.  108,  S.  C;  and  see  1  Durnf  k  East,  473.  1  Wms.  Saund.  5  Ed, 
109,  (1). 


OF  A  CASSETUR  BILLA,  ETC.  682 

In  trespass,  or  otlier  action  for  a  wron;:,  against  several  defendants,  the 
plaintiff  may,  at  any  time  before  final  judgment,  enter  a  noUe  j)ro8C(jiii  as 
to  one  defendant,  and  proceetl  against  the  otiiers:(c)  And  so  in  assunt/jsit, 
or  other  action  upon  contract,  against  several  defendants,  one  of  whom 
pleads  bankruptcy,  or  other  matter  in  his  personal  discharge,  the  plaintiflf 
may  enter  a  7iolle  prosequi  as  to  him,  and  proceed  against  the  other  de- 
fendants.(J)  So,  in  trespass  against  several  defendants,  where  the  jury  by 
mistake  have  assessed  several  damages,  the  plaintiff  may  cure  it  by  entering 
a  nolle  prosequi  as  to  one  of  the  defendants,  and  taking  judgment  against 
the  others. ((')  ]5ut  a  nolle  prosequi  cannot  be  entered  as  to  one  defendant, 
after  final  judgment  against  the  others  :(/)  And  it  seems  that  in  assump- 
sit, or  other  action  upon  contract,  against  several  defendants,  the  plaintiff 
cannot  enter  a  nolle  prosequi  as  to  one,  unless  it  be  for  some  matter  ope- 
rating in  his  personal  discharge,  without  releasing  the  others.(^)  So,  wliere 
the  plaintiff  dechires  on  a  joint  contract  against  two  defendants,  and  one  of 
them  pleads  infancy,  the  plaintiff  cannot  enter  a  nolle  prosequi  as  to  him, 
and  proceed  against  the  other  defendant  in  that  action ;  but  should  com- 
mence a  new  action  against  the  adult  defendant  only. (A)  In  entering  a 
nolle  prosequi,  the  plaintiff  need  not  be  amerced  j^ro /aZi'o  clamore  ;  but  it 
is  sufhcient  that  the  defendant  be  put  without  day.(i) 

Of  a  natvu'e  similar  to  a  nolle  p>rosequi,  is  the  entry  of  a  stet  proce8Sus,{k) 
by  which  the  plaintiff  agreos  that  all  fui'ther  proceedings  in  the  action  shall 
be  stayed.    This  entry  is  usually  made,  where  the  defendant  be- 
comes *insolvent  pending  the  action ;  and  the  object  of  it  is  to  [  *683  ] 
prevent  him  from  obtaining  judgment,  as  in  case  of  a  nonsuit. («) 

On  a  plea  in  abatement,  if  the  plaintiff  cannot  deny  the  truth  of  the 
matter  alleged,  and  it  is  sufficient  in  law  to  quash  the  bill  or  writ,  he  may 
enter  a  cassetur  hilla,  vel  hreve  ;{b)  or,  in  other  words,  pray  that  the  bill 
or  writ  may  be  quashed,  to  the  intent  that  he  may  exhibit  or  sue  out  a 
better  bill  or  writ  against  the  defendant :  and  upon  such  entry,  the  de- 
fendant is  not  entitled  to  costs.  For  the  purpose  of  making  this  entry,  a 
roll  should  be  obtained,  of  the  term  of  the  declaration,  on  which  the  de- 
claration and  plea  should  be  entered :  after  which,  the  roll  is  taken  to  and 
docketed  with  the  clerk  of  the  judgments,  in  the  King's  Bench  ;  and  the 
master  having  marked  the  cassetur  billa  thereon,  it  is  filed  with  the  clerk 
of  the  treasury. (w)  In  the  Common  Pleas,  the  roll  is  obtained  from  the 
prothonotaries,  with  whom  it  is  afterw^ards  docketed  and  filed. (<;?(?) 

In  an  action  against  an  executor  or  administrator,  if  the  defendant 
lAciid  pic ne  administravit,  and  it  cannot  be  proved  that  he  has  assets  in 
hand,  the  plaintiff  may  confess  the  plea,  and  take  judgments  of  assets  in 
futuro  ;  which  is  an  interlocutory  or  final  judgment,  according  to  the  nature 
of  the  action :  and  if  it  be  only  interlocutory,  there  must  be  a  writ  of  inquiry 
to  complete  it.     So,  in  an  action  against  an  insolvent  debtor  or  fugitive, 

(r)  nob.  TO.     Cro.  Car.  239,  243.     2  Rol.  Abr.  100.     2  Salk.  455,  G,  7.     3  Salk.  244,  5. 
1  Wils.  30G. 
(rf)  1  Wils.  89. 

(e)  11  Co.  5.     Cro.  Car.  239,  243.     Carth.  19.  {f)  2  Salk.  455. 

ig)   1  Wils.  89;  and  see  2  Maule  &  Sel.  23,  444.     6  Taunt.  179. 
\h)  3  Esp.  Rep.  7i>.     5  Esp.  Rep.  47,  S.  P. ;  and  see  3  Taunt.  307.     4  Taunt.  468. 
(/)   1  Str.  574.  [k)  Append.  Cliap.  XXVIII.  §  14. 

(a)  7  Taunt.  180.  h)  Append.  Chap.  XXVI.  i  7. 

(cc)  Imp.  K.  B.  10  Ed.  218,  19. 
\dd)  Imp.  C.  P.  7  Ed.  279,  80. 

Vol.  I.— 13 


683 


OF  TRAVERSES. 


■whose  future  effects  remain  liable  to  the  payment  of  his  debts,  the  plaintiff 
may  take  judgment  for  his  demand,  to  be  levied  of  those  effects. (ee) 

A  replication,  denying  the  truth  of  the  plea,  is  either  in  denial  of  the 
whole,  or  a  part  of  it ;  and  such  denial  is  either  direct  and  immediate,  or 
consequential  to,  and  preceded  by  an  inducement :  the  latter  mode  of  denial 
is  called  a  traverse.{f) 

When  the  defendant's  plea  consists  merely  of  matter  of  fact,  triable  by 
the  country,  in  excuse  or  justification  of  the  injury  complained  of,  as  Avhere 
the  defendant,  in  trespass  and  assault,  pleads  son  assault  demesne,  or  jus- 
tifies in  an  action  for  words,  there  the  plaintiff  may  reply  generally,  that 
the  defendant  committed  the  injury  of  his  own  wrong,  and  without  any 
such  cause  as  the  defendant  hath  alleged ;  which  puts  the  whole  matter  of 
the  plea  in  issue,  and  is  called  a  replication  de  injurid  sud  projjrid,  absque 
tali  causd.(g)  But  where  the  plea  consists  of  matter  of  record,  as  well  as 
matter  of  fact,  or  the  defendant  claims,  in  his  own  right,  or  as  servant  to 
another,  any  interest  in  the  land,  or  any  common  or  rent  issuing  out  of  the 
land,  or  a  way  or  passage  over  it,  there  de  injurid,  &c.  generally  is  not  a 
good  replication  ;(7i)  but  the  plaintiff  must  either  deny  *the  matter 
[  *684  ]  of  record,  or  traverse  the  title  specially ;  or,  admitting  the  matter 
of  record  or  title,  he  must  reply,  that  the  defendant  committed 
the  injury  of  his  own  wrong,  and  without  the  residue  of  the  cause  alleged 
by  the  defendant.  So,  if  the  defendant,  without  claiming  any  interest  in 
the  land,  justify  under  an  authority  derived  immediately  or  mediately  from 
the  plaintiff,  or  by  authority  of  law,  de  injurid,  &c.  generally,  is  not  a  good 
replication. 

When  there  is  an  affirmative  and  negative,  either  in  express  words  or  by 
necessary  implication, («)  or  a  complete  confession  and  avoidance,  a  traverse 
is  unnecessary  and  superfluous.  But  when  there  are  two  affirmatives  which 
do  not  impliedly  negative  each  other,  or  a  confession  and  avoidance  by 
argument  only,  it  is  necessary  to  add  a  traverse.  A  traverse  is  a  denial  of 
the  whole,  or  most  material  point  of  the  adversary's  pleading  ;(5)  or,  if 
there  be  several  points  equally  material,  of  one  of  them  :(6')  and  it  should 
consist  of  some  matter  of  fact,  triable  by  the  country,  either  expressly 
alleged, (fZ)  or  necessarily  implied. (e)  Matter  of  inducement  therefore,  or 
conveyance  to  the  action,(^)  a  mere  suggestion,  surmise  or  supposal,  the 
time  and  place,  or  what  is  alleged  under  a  scilicet,  if  immaterial,  is  not 
allowed  to  be  traversed ;  nor  matter  of  \?t\f,{gg)  or  mere  legal  inference ; 
matter  of  intention,  which  is  not  triable,  as  the  sciens  in  an  action  of  deceit; 
matter  of  record  which  is  not  triable  by  the  country  ;  or  any  other  matter, 
which  is  not  expressly  alleged,  or  necessarily  implied.  But  matter  of  in- 
ducement, &c.,  is  traversable,  if  material. (AA) 

(ee)  1  Durn£  &  East,  80.     Append.  Chap.  XXII.  §  14. 

(/)  For  the  replications  usually  made  to  pleas  in  different  actions,  see  1  Chit.  PI.  4  Ed. 
500,  &c.  (ff)  Croffate's  case,  8  Co.  67. 

(A)  Id.  ibid,  and  see  Willes,  52,  99,  202.  7  Price,  670.  Yet,  where  the  title  alleged  is 
only  inducement,  de  injuria,  &c.  generally,  is  a  good  replication.  2  Wms.  Saund.  5  Ed. 
295,  (1.)  And  see  further,  as  to  the  replication  oi  de  inj'urid,  &c.,  and  when  allowed,  or  not 
proper  or  advisable,  and  the  form  of  it,  1  Chit.  PL  4  Ed.  525,  &c.     Steph.  PI.  186,  &c. 

(a)  2  Str.  1177.     1  Wils.  S.  C.  (b)  Steph.  PI.  256,  7.  (c)  Id.  258,  9. 

(d)  Id.  216,  17,  18.  (e)  Id.  218,  19.  {/)  Id.  212,  13;  257,  8. 

{gg)  Id.  215. 

(hh)  See  further  as  -to  the  nature  and  properties  of  traverses  in  general,  and  their  different 
kinds,  &c.  Steph.  PI.  170,  &c.  230,  &c.  And  as  to  special  traverses,  and  what  fact  may  be 
traversed  or  denied,  see  1  Chit.  PI.  4  Ed.  531,  &c.     Steph.  PI.  188,  &c. 


OF  REPLICATIONS  IX  GENERAL,  ETC.  (3g4 

Every  traverse  ourrlit  to  have  a  proper  iiiduccinont ;  and  if  that  be  bad, 
the  traverse  is  insufficient :(/)  But  the  inducement  to  a  traverse  does  not 
require  much  certainty  ;  though  the  traverse  itself  shouhl  be  certain, (/c)  and 
neither  too  hirge  nor  too  narrow,(^)  that  is,  it  shoukl  deny  so  much  as  is 
material,  and  no  more.  The  proper  words  for  beginning  a  traverse,  are 
ahsrpie  hoc  ;  but  any  words  tantamount  are  sufficient,  as  et  non :  And  the 
replication  ought  not  to  conclude  to  the  country,  unless  it  comprise  the 
whole  matter  of  the  plea.  There  cannot  be  a  traverse  after  a  traverse, 
when  the  first  was  apt  and  material  :{m)  but  it  is  otherwise,  Avhen  the  first 
traverse  was  not  to  the  point  of  the  action,  or  immaterial. (?i)  And  the  kino' 
is  allowed  to  take  a  traverse  after  a  traverse,  when  his  title  appears  by 
office,  or  other  matter  of  record. 

The  want  of  a  necessary  traverse,  or  a  traverse  that  is  unnecessary  and 
superfluous,  is  merely  form,  and  aided  after  verdict,  on  a  general 
demurrer,  *or  by  pleading  over.     A  traverse  improperly  taken  [  *G85  ] 
is  also  aided  in  like  manner ;  as  where  it  is  without  an  induce- 
ment, or  of  an  immaterial  point,  or  of  one  that  is  not  the  most  material,  or 
too  large  or  too  narrow,  or  after  a  former  traverse. (a) 

If  the  plaintiff  cannot  deny  the  truth  of  the  plea,  he  may  confess  and 
avoid  it,  or  conclude  the  defendant  by  matter  of  estoppel.  Avoidance,  we 
have  seen,(6)  is  either  by  matter  precedent,  which  is  called  an  avoidance  in 
law,  or  by  matter  subsequent,  which  is  called  an  avoidance  in  fact.(c)  And 
it  is  a  rule,  with  regard  to  estoppels,  that  they  should  be  pleaded  with  cer- 
tainty in  every  particular  ;(<:?)  and  in  pleading  or  replying,  the  paity  must 
rely  upon  them.(e) 

In  general  we  may  observe,  that  the  qualities  of  a  replication  are  similar 
to  those  of  a  plea  :  therefore  it  should  answer  the  whole  matter  alleged,  and 
be  single,(/)  certain,  direct  and  positive,  triable,  and  capable  of  proof. (_(/) 
But  though  a  replication  must  not  be  double,  yet  it  may  contain  several 
distinct  answers  to  different  parts  of  the  plea  :  Thus,  at  common  law,  where 
the  defendant  in  assumpsit  pleads  infancy,  to  a  declaration  consisting  of 
several  counts,  the  plaintiff  may  reply,  as  to  part  of  his  demand,  that  it  was 
for  necessaries ;  to  other  part,  that  the  defendant  Avas  of  full  age  at  the 
time  of  the  contract ;  and  to  other  part,  that  he  confirmed  it  after  he  came 

{i)  Stcph.  PI.  208,  9,  10.  {k)  Id.  213,  14. 

(/)  Id.  259,  &c.  (?«)  Id.  210,  11. 

(«)  Id.  211,  12. 

(«)  For  the  above  rules  respectinj^  travcr.'cs,  and  the  cases  whicli  illustrate  thcni,  see 
Com.  Dig.  tit.  Pleader,  (G.)  &c.  And  see  further  as  to  traverses  when  necessary,  and  wlien 
not ;  1  Wms.  Saund.  5  Ed.  85,  (1),  133,  (4),  207,  d.  c.  (3,  4,  5),  209,  (7,  8).  2  Wins.  Saund. 
6  Ed.  5,  (3),  50,  (3),  what  may  or  7nav  not  be  traversed;  1  Wms.  Saund.  5  Ed.  23,  (5),  298, 
(3),  312,  d.  (4,  5).  2  Wms.  Saund.  5"Ed.  10,  (14),  206,  (21,  22,)  in  what  manner  a  traverse 
should  be  taken;  1  Wms.  Saund.  5  Ed.  82,  (3),  2G8,  (1),  2G9.  a.  (2).  2  Wms.  Saund.  5  Ed. 
207,  (24),  295,  b.  (2),  of  a  traverse  after  a  traverse  ;  1  Wms.  Saund.  5  Ed.  22,  (2),  and  when 
and  how  the  want  of,  or  a  bad  or  defective  traverse  is  aided  ;  1  Wms.  Saund.  5  Ed.  14,  (2), 
20,  rt.  (1).     See  also  1  Chit.  PL  4  Ed.  531,  &;c.     Steph.  PL  188,  &c. 

(6)  Ante,  643. 

(c)  See  further,  as  to  replications  in  confession  and  avoidance,  1  Chit.  PL  4  Ed.  540,  &c. 
Steph.  PL  219,  &c. 

(d)  Co.  Lit.  303,  a. 

(e)  1  Wms.  Saund.  5  Ed.  325,  a.  (4).  And  see  further,  as  to  estoppels,  1  Wras.  Saund. 
5Ed.  210,  (2).  2  Wms.  Saund.  5  Ed.  418,  (IJ.  1  Chit.  PL  4  Ed.  522,  3.  Stcph.  PL  239,  40,  41. 
Ante,  662. 

(/)  But  see  2  Barn.  &  Cres.  908.     4  Dowl.  k  Ryl.  579,  S.  C. 

(ff)  See  further,  as  to  these  qualities,  1  Chit.  PL  4  Ed.  55G,  7.  Stcph.  PL  264.  kc.  297,  &c 
342,  &c. 


335  or  AssiGXiNG  breaches,  etc. 

of  a"-e.(7t)  So,  if  an  executor  or  administrator  plead  several  judg- 
ments outstanding,  and  no  assets  ultra,  the  plaintiff  may  reply,  as  to 
one  of  the  judgments,  mil  tiel  record  ;  and  to  another,  that  it  was  obtained 
or  kept  on  foot  by  fraud. (z)  And  to  a  plea  of  set-off,  consisting  of  several 
demands  upon  judgment  or  recognizance  and  simple  contract,  the  plaintiflf 
in  his  replication  may  give  several  answers  ;  as,  to  the  judgment 
[  *686  ]  or  *recognizance,  7iul  tiel  record,  and  to  the  simple  contract,  that 
he  was  not  indebted,  or  the  statute  of  limitations. («) 
At  common  law,  when  an  action  was  brought  on  a  bond  with  a  penalty, 
conditioned  for  the  performance  of  covenants,  the  plaintiff  could  only  have 
assigned  one  breach  of  the  "condition,  by  which  the  forfeiture  was  incurred; 
for  if  he  had  assigned  several  breaches,  the  declaration  would  have  been  bad 
for  duplicity  ;  and  if  the  issue  joined  on  the  breach  assigned  had  been  found 
for  the  plaintiff,  he  was  entitled  not  orly  to  recover  the  penalty,  that  being 
the  legal  debt,  but  also  to  take  out  execution  for  the  same,  although  it  far 
exceeded  the  amount  of  the  damages  actually  sustained  :  and  the  defendant 
could  only  have  obtained  relief  in  a  com't  of  equity.  For  preventing  these 
inconveniences,  to  the  plaintiff  as  well  as  to  the  defendant,  it  was  enacted  by 
the  statute  8  &  9  W.  III.  c.  11,  §  8,  that  "  in  all  actions  upon  any  bond  or 
bonds,  or  on  any  penal  sum,  for  non-performance  of  any  covenants  or  agree- 
ments, in  any  indenture,  deed  or  writing  contained,  the  plaintiff  or  plaintiffs 
may  assign  as  many  breaches  as  he  or  they  shall  think  fit ;  and  the  jury, 
upon  the  trial  of  such  action  or  actions,  shall  and  may  assess,  not  only  such 
damages  and  costs  of  suit  as  have  heretofore  been  usually  done  in  such  cases, 
but  also  damages  for  such  of  the  said  breaches,  so  as  to  be  assigned,  as  the 
plaintiff,  upon  the  trial  of  the  issues,  shall  prove  to  have  been  broken ;  and 
that  the  like  judgment  shall  be  entered  on  such  verdict,  as  heretofore  hath 
been  usually  done  in  such  like  actions."  This  statute,  we  have  seen, (6)  is 
compulsory  on  the  plaintiff,  to  proceed  in  the  method  it  prescribes  :  and 
under  it,  the  breaches  may  either  be  assigned  in  the  declaration,  or  in  the 
replication.  It  was  not  formerly  usual  to  assign  them  in  the  declaration ; 
but  this  is  now  commonly  done,  for  avoiding  the  necessity  of  a  suggestion 
after  judgment  on  demurrer,  or  by  confession  or  nil  dicet,  or  after  a  plea  of 
non  est  factum,  kc. ;  And  where  they  are  so  assigned,  the  defendant  may 
deny  the  truth  of  them  in  his  plea ;  and,  if  necessary  for  his  defence,  may 
plead  several  matters.  But  when  the  breaches  are  not  assigned  in  the  de- 
claration, the  usual  course  of  pleading  is,  for  the  defendant  in  his  plea  to  set 
out  the  condition,  and  plead  performance  generally  ;  upon  which  the  plaintiff 
assigns  the  breaches  in  his  replication. (c)  In  debt  on  bond,  conditioned 
for  the  payment  of  mortgage  money,  when  the  defendant  pleads  that  he 
paid  the  money  according  to  the  condition,  the  plaintiff  in  his  replication  may 
take  issue  thereon,  and  conclude  to  the  country,  without  assigning  any  fur- 

[h)  But  a  promise  made  after  the  commencement  of  an  action,  is  not  sufficient  to  sustain 
a  reijlication  that  the  defendant,  (who  had  pleaded  infancy)  ratified  his  contract  after  he 
came  of  age.     2  Barn.  &  Cres.  824.     4  Dowl.  &  Ryl.  545,  S.''C. 

(?)  1  Wms.  Saund.  5  Ed.  337,  a.  h.  (2),  and  see  1  Salk.  298.     1  Ld.  Raym.  263,  S.  C. 

(a)   1  Chit.  PI.  4  Ed.  500,  501.  {b)  Ante,  584. 

(c)  Per  Chamhre,  J.  5  Taunt.  390.  1  Marsh,  97,  S.  C.  2  Chit.  Rep.  298,  {a).  And  see 
Com.  Dig.  tit.  Pleader,  F.  14,  and  the  authorities  there  cited;  by  which  it  seems,  that  at 
common  law,  where  a  breach  was  not  admitted  by  the  plea,  the  plaintiflf  must  have  assigned 
it  in  his  replication,  and  concluded  with  a  verification,  so  as  to  give  the  defendant  an  oppor- 
tunity of  answering  it. 


OF    A    PKOTESTANDO.  (386 

ther  breach  :(fZ)  But,  in  general,  the  breaelies  are  hehl  to  he  suffi- 
ciently assigned,  though  they  are  *not  said  in  terms,  to  he  accord-  [  *687  ] 
ing  to  the  form  of  the  statute.{(ra)  After  a  ploa  of  no7i  est  fac- 
tum,{bli)  or  that  the  bond  was  obtained  by  fraud, (re)  &c.  when  the  breaches 
are  not  assigned  in  the  declaration,  the  plaintiff,  in  the  King's  Bench,  is 
allowed  to  suggest  them,  in  making  up  the  issue  ;  and  proceed  to  assess 
damages  thereon,  at  the  time  the  issue  is  tried.  This  suggestion  may  be 
entered  at  anytime  before  the  trial  ;  though,  -where  the  issue  has  been  pre- 
viously made  up  and  delivered  on  such  plea,  it  is  irregular  to  deliver  a  second 
issue  with  a  suggestion,  without  a  summons  and  judge's  order.((A/)  And,  in 
a  late  case,((')  leave  was  given  by  the  court  of  King's  Bench  to  the  plaintiff, 
in  debt  on  bond  conditioned  to  perform  an  award,  after  judgment  for  him 
upon  a  plea  of  judgment  recovered,  and  writ  of  error  allowed,  to  execute  a 
writ  of  inquiry  upon  the  above  statute,  and  to  sign  a  new  judgment,  on  the 
terms  of  paying  costs,  and  putting  the  defendant  in  statu  quo,  kc.  But,  in 
the  Common  Pleas,  on  a  plea  of  general  performance,  if  the  plaintif!',  instead 
of  assigning  hreaches  in  his  replication,  deny  the  performance  and  conclude 
to  the  country,  and  then  suggest  breaches  of  the  condition,  it  is  bad  on  de- 
murrer ;  and  if  the  defendant  do  not  demur,  but  take  issue  and  go  to  trial 
on  the  question  of  performance,  the  court  will  after  verdict  award  a  re- 
pleader.(/) 

In  order  to  avoid  duplicity,  Avhen  a  party  is  to  answer  two  matters,  an<l 
yet  by  law  he  can  only  plead  or  reply  to  one  of  them,  he  may  j^rotcst 
against  the  one,  and  plead  or  reply  to  the  other :  as  where  a  delivery  and 
acceptance  are  stated,  of  money  or  goods,  &c.  he  may  protest  against  the 
delivery,  and  take  issue  on  the  acceptance ;  or  if  a  defendant  plead  that 
he  is  seised  in  fee  of  land,  and  prescribe  for  common  of  pasture,  kc.  the 
plaintiff  in  his  replication  may  protest  against  the  seisin,  and  take  issue  on 
the  prescription.  This  is  called  a  j^rotestatioyi,  or,  from  the  gerund  used 
in  making  it  when  the  proceedings  were  in  Latin,  aj^ro^es^ancZo;  and  is 
defined  to  be  a  saving  to  the  party  who  takes  it,  from  being  concluded  by 
any  matter  alleged  or  objected  against  him  on  the  other  side,  upon  Avliich 
he  cannot  take  issue. (^)  A  p-otestando  is  said  by  Lord  Coke  to  be  an 
exclusion  of  a  conclusion ;  or  a  safeguard  to  the  party,  which  keepeth  him 
from  being  concluded  by  the  plea  he  is  to  make,  if  the  issue  be  found  for 
him :(/«)  And  where  it  is  doubtful  whether  a  pleading  be  good,  it  is  usual 
for  the  party  to  protest  that  it  is  insufHcient  in  law,  before  he  answers  it. 
But  that  which  is  the  ground  of  the  party's  suit  cannot  be  taken  by  pro- 
testation ;  for  it  may  be  denied  by  answer,  and  issue  may  be  joined  upon 
it :  as  in  detinue  by  the  executor  of  A.,  the  defendant  cannot 
*take  by  protestation  that  A.  did  not  make  the  plaintiff  his  exe-  [  *688  ] 
cutor,  for  it  is  the  ground  of  the  suit,  and  utterly  destroys  the 
plaintifiF's  action ;  and  that  which  is  the  effect  of  the  party's  suit  cannot  be 

{(1)  5  Moore,  198,  and  sec  2  Chit.  Rep.  COT,  nnd  the  cases  there  cited. 

{an\   13  East,  3  ;  and  see  5  Diirnf.  &  East,  540. 

\hh)  8  Durnf.  &  East,  255;  and  see  1  E^j).  Rep.  2T7.     Append.  Chap.  XXX.  §  10. 

(cc)  5  J[aule  &  Sel.  60.     2  Chit.  Rep.  298,  S.  C. 

(dd)  8  Durnf.  &  East,  255.  {e)  14  East,  401. 

(/)  5  Taunt.  386.  1  Marsh.  95,  S.  C.  And  for  the  mode  of  proceeding  in  general,  on 
the  statute  8  &  9  W.  III.  c.  11,  §  8,  see  1  Wms.  Saund.  5  Ed.  58,  (1).  2  Wms.  Saund.  5  Ed. 
187,(2).     Sel.  Xi.  Pri.  6  Ed.  591,  &c.     1  Chit.  PI.  4  Ed.  504,  &c.  .540.     ^n^f.  583,  &c. 

{g)  Plowd.  27G,  b.  Finch.  L.  359,  GO.  (A)  Co.  Lit.  124,  b.    Doc.  Plac.  295. 


688 


OF  DEPARTURE, 


taken  by  protestation. (a)  Also  it  is  a  rule,  that  a  protestation  -svliicli  is 
repugnant  to,  or  inconsistent  with  the  plea,  or  an  idle  and  superfluous  pro- 
testation, is  not  good. (5) 

A  protestation  is  perfectly  inoperative  in  the  pleading  in  which  it  is  used, 
it  neither  admitting  nor  denying  any  thing  in  that  suit ;  and  where  one 
pleads  a  plea,  and  takes  another  matter  by  protestation,  and  the  issue  is 
found  against  him,  the  protestation  is  of  no  service  ;(<?)  it  being  a  rule,  that 
a  protestation  does  not  avail  the  party  that  takes  it,  if  the  issue  be  found 
against  him,  but  only  prevents  a  conclusion  where  the  issue  is  found  for 
him,  unless  it  be  a  matter  that  cannot  be  pleaded,((i)  or  on  which  issue 
cannot  be  joined  ;(e)  and  then  it  shall  be  saved  to  the  party  protesting, 
though  the  issue  be  found  against  him.(/) 

The  only  additional  quality  required  in  a  replication,  is  that  it  be  con- 
sistent with,  and  do  not  depart  from  the  declaration.  Departure  in  pleading 
is,  wdien  a  man  quits  or  departs  from  the  case  or  defence  which  he  has  first 
made,  and  has  recourse  to  another  ;[a]  or,  in  other  words,  when  the  repli- 
cation or  rejoinder  contains  matter  not  pursuant  to  the  declaration  or  plea, 
and  which  does  not  support  and  fortify  it.((/)  Thus,  if  the  declaration  be 
founded  on  the  common  law,  the  plaintiff  in  his  replication  cannot  maintain 
it  by  a  special  custom,  or  act  of  parliament,  (7i)  So,  in  an  action  of  deht 
on  an  arbitration  bond,  if  the  defendant  plead  "no  award  made,"  and  the 
plaintiff,  in  his  replication,  set  out  an  award,  and  assign  a  breach,  the  de- 
fendant cannot  rejoin  that  the  award  was  not  tendered, (z)  or  is  void,(/c)  or 
that  the  defendant  hath  performed,  or  been  ready  to  perform  it.(Z)  So,  in 
an  action  of  deht  on  bond,  conditioned  for  the  payment  of  an  annuity,  if 

(a)  Plowd.  27G.  Doc.  Plae.  296  ;  and  see  Moor,  355,  6.  Cro.  Car.  365.  3  Wils,  109,  10 ;  116. 

(b)  Bro.  Abr.  tit.  Protestation,  I.  5.  Plowd.  276,  (c)  Bro.  Abr.  tit.  Protestation,  14. 
[d)  Finch,  L.  359.  ,  {e)  Plowd.  276,  b.  Co.  Lit.  124,  b. 
(f)  For  the  several  cases  on  this  subject,  see  2  Wms.  Saund.  5  Ed.  103,  (1).     See  also 

3  Blac.  Com.  311,  12.  Reg.  Plac.  70,  71,  3  Reeve's  Hist,  437.  1  Chit.  PI.  4  Ed.  533,  &c, 
Steph.  PI.  235,  &c. 

(ff)  Co.  Lit.  304,  a.  2  Wils.  98;  and  see  2  Wms,  Saund,  5  Ed.  84,  (1),  189,  (3). 

(h)  Co.  Lit.  304,  a.     1  Lev.  81.     3  Lev.  48. 

(i)   1  Lev.  300.     2  Wms.  Saund.  5  Ed,  188,  S.  C.     3  Salk.  123. 

(/i)   1  Lev.  85,  127,  133.     1  Wils.  122.  (/)   1  Sid.  10. 

[a]  a  departure  in  pleading,  is  where  a  previous  ground  in  the  pleading  is  abandoned 
and  a  new  ground  assumed.  Haley  v.  3f'Pherson,  3  Humph.  104.  JPAden  v.  Gibson,  5  Ala. 
341,  To  assumpsit  on  an  account,  the  defendant  pleaded  the  statute  of  limitations,  to  which 
the  plaintiff  replied  fraud.  Held,  that  the  replication  was  a  departure  in  pleading,  and  de- 
fective on  demurrer.  Alien  v.  Mayson,  3  Brevard,  207.  So  in  debt  on  a  note,  the  plea  was, 
"no  consideration."  The  replication  set  out  a  consideration,  and  the  rejoinder  showed  a 
partial  failure  of  consideration.  Held,  that  the  rejoinder  was  a  departure.  Kilgore  v.  Powers, 
5  Blackf.  22.  On  a  declaration  in  the  usual  form,  in  a  suit  bj*  the  assignee  against  the 
maker  of  a  promissory. note,  the  pleas  were,  want  of  consideration,  &c.  The  reijlication  was, 
that  the  note  was  made  in  the  State  of  Ohio,  &c.,  setting  out  a  statute  of  that  State,  which 
showed  the  pleas  to  be  inadmissible.  Held,  that  the  replication  was  a  departure.  Yeatvian 
v.  Cullen,  5  Blackf.  240.  Departure  consists,  also,  in  alleging  new  matter  not  tending  to 
fortify  the  traversed  matter,  and  will  vitiate  a  pleading.  Paine  v.  Fox,  16  Mass.  129.  Keay 
V.  Goodwin,  lb.  1,  2.  Darling  v.  Chapman,  14  lb.  101,  103.  Thus,  a  marshal,  to  whom  an 
execution  was  given  upon  a  judgment  obtained  by  the  United  States  for  a  penalty,  re-deli- 
vered to  the  debtor  the  goods  upon  which  he  had  levied,  on  being  served  with  a  warrant  of 
remission.  An  action  was  thereupon  brought  against  him,  in  the  name  of  the  L^nited  States, 
for  the  moiety  of  the  penaltj^  allowed  to  the  officers  of  the  customs;  but  the  declaration 
alleged  no  interest  in  them,  but  only  in  the  United  States.  The  defendant  pleaded  the  re- 
mission. "  The  plaintiffs  replied,  the  interest  of  the  officers  in  the  penalty.  Held,  on  special 
demurrer,  that  this  was  a  departure.      United  States  v.  Morris,  Paine,  209. 


OF  DEPARTURE.  G88 

the  defendant  plead,  "no  sueli  memorial  as  the  statute  requires,"  to  which 
the  plaintiff  replies  that  there  was  a  memorial,  which  contained  the  names 
of  the  parties,  kc.  and  the  consideration  fur  which  the  annuity  Avas  granted, 
and  the  defendant  rejoins  that  the  consideration  is  untruly  alk'<fed  in  the 
memorial  to  have  been  paid  to  both  obligors,  for  that  one  of  them  did  not 
receive  any  part  of  it ;  this  rejoinder  is  bad,  as  being  a  departure  from 
the  plea.(m)     So,  in  an  action  of  debt  on  bond,  conditioned  for  the  per- 
formance of  covenants,  if  the  defendant  plead  performance,  and 
*the  plaintiff  reply  and  assign  a  breach,  the  defendant  cannot   [  *G89  ] 
rejoin  any  matter  in  excuse  of  performance.(a)     But  Avhere  the 
rejoinder  discloses  new  matter,  in  explanation  or  fortification  of  the  bar,  it 
is  no  departure  :[b)  Thus,  where  the  defendant  in  an  action  of  debt  on  an 
arbitration  bond,  pleaded  no  "  award,"  and  the  plaintiff  in  his  replication 
set  out  the  award,  and  the  defendant  in  his  rejoinder  stated  the  whole 
award,  in  which  was  recited  the  bond  of  submission,  by  Avhich  it  appeared, 
upon  the  face  of  the  award,  that  it  was  not  warranted  by  the  sulnnission, 
and  then  demurred ;  the  court  held,  that  the  rejoinder  was  not  inconsistent 
with,  nor  a  departure  from  the  plea.(6')     In  scire  facias  against  bail,  they 
pleaded  that  there  was  no  ca.  sa.  against  the  principal,  the  plaintiff  replied, 
by  shoAving  the  ca.  sa.  and  a  return  of  non  est  inventus,  the  defendant  re- 
joined that  the  ca.  sa.  did  not  lie  four  days  in  the  office  ;  and  this,  on  de- 
murrer, was  holden  to  be  a  departure ;  although,  by  the  practice  of  the 
court,  the  proceedings  were  on  that  account  irregular,  and  might  have  been 
set  aside. (fZfZ)     But  where  bail,  sued  in  scire  facias  upon  their  recogni- 
zance, pleaded  that  no  ca.  sa.  was  duly  sued  out,  returned  and  filed, 
against  the  principal,  according  to  the  custom  and  practice  of  the  court,  to 
which  the  plaintiff  in  his  replication  showed  a  Avrit  of  ca.  sa.  issued  into 
3Iiddlesex,  it  was  holden  to  be  no  departure  for  the  defendant  to  rejoin,  that 
the  venue  in  the  action  against  the  principal  was  laid  in  London  ;  for  that 
sustains  the  plea.(6') 

Time  and  place,  when  material,  cannot  be  departed  from ;  as,  in  an  action 
upon  a  bond,(/)  or  promissory  notc,(^)  the  plaintiff  in  his  replication  can- 
not vary  from  the  day  laid  in  the  declaration.  So,  in  an  action  for  a  local 
trespass,  he  cannot  reply  that  it  was  committed  at  a  different  place.  But 
when  the  time  laid  in  the  declaration  is  immaterial,  there,  if  it  become  ne- 
cessary by  the  defendant's  plea,  the  plaintiff  in  his  replication  may  depart 
from  it ;  as  in  trespass,{lt)  or  trover,{i)  or  upon  a  general  indebitatus  as- 
sumpsit,(Jc)  when  the  time  becomes  material  by  the  defendant's  plea  of  a 
release,  tender,  or  the  statute  of  limitations,  &c.  So,  in  an  action  for  a 
transitory  trespass,  when  the  defendant  pleads  a  local  justification,  the 
plaintiff,  in  his  replication,  may  vary  from  the  place  laid  in  the  declara- 
tion. (Z)     The  proper  mode  of  taking  advantage  of  a  departm'e,  is  by  demur- 

(m)  4  Durnf.  &  East,  585. 

(a)  Co.  Lit.  304,  a.    2  Lev.  Gl.    1  Salk.  221,  2.  (b)  2  Wils.  03. 

(c)   11  East,  188;  and  sec  1  Barn.  &  Cres.  4G5,  6.     2  DowL  &  Ryl.  472,  3,  S.  C. 
(dd)   1  Wils.  334.     IG  East,  41.     1  Dowl.  &  Ryl.  50. 

M   10  East,  39;  ami  see  5  Dowl.  &  Ryl.  615.  (/)   1  Salk.  222.     3  Lev.  348. 

Iff)   1  Sir.  22.     2  Sir.  806. 

(A)  Co.  Lit.  282,  a.  b.     1  Salk.  222.     2  Ld.  Raym.  1015. 
(t)  Cro.  Car.  245,  333.     1  Salk.  222. 

(k)  1  Str.  22.     2  Str.  80G.     1  Lev.  110.     1  Kcb.  5G6,  578.     10  Mod.  251.     F»rt.  375.     1 
Barnard,  K.  B.  54. 
{I)  1  Ld.  Raym.  120. 


ggg  OF  NEW  ASSIGNMENTS. 

rer  ;  for  if  the  defendant,  instead  of  demurring,  take  issue  upon  a  replica- 
tion containing  a  departure,  and  it  be  found  against  him,  the  court  will  not 
arrest  the  judgment.(m) 

*But  though  a  departure  be  not  allowable,  yet  in  many  actions, 
r  *690  ]  and  particularly  in  trespass,  the  plaintiff,  who  has  alleged  in  his 
declaration  a  general  wrong,  may,  in  his  replication,  after  an  eva- 
sive plea  by  the  defendant,  reduce  that  general  wrong  to  a  more  particular 
certainty,  by  assigning  the  injui-y  afresh,  with  all  its  specific  circumstances, 
in  such  manner  as  clearly  to  ascertain  and  identify  it,  consistently  with  his 
general  complaint;  which  is  called  a  neiv  or  7wvel  assignment. [a) 

A  new  assignment  is  either  as  to  time,  place,  or  other  circumstances. 
With  respect  to  time,  when  the  defendant  justifies  under  a  right  of  com- 
mon, &c.  at  particular  times,  the  plaintiff  may  new  assign  the  trespass  at 
other  times.  So,  in  an  action  of  assault  and  battery,  if  the  defendant  plead 
son  assault  demesne,  and  there  were  in  truth  two  assaults,  one  of  which 
the  defendant  can  justify,  and  the  other  not,  the  plaintiff  may  new  assign 
the  assault  for  Avhich  he  brought  his  action. (J)  And  it  seems  that  the  de- 
fendant in  such  case  may  prove  an  assault  on  any  day  before  the  action 
brought ;  and  the  plaintiff  cannot  give  in  evidence  an  assault  at  another 
day,  or  at  another  time  on  the  same  day,  without  a  new  assignment. (c) 
But  where  the  defendant,  in  trespass  quare  clausum  fregit  on  several 
days,  pleads  leave  and  license  to  the  whole,  if  some  of  the  trespasses  were 
committed  after  the  license  was  revoked,  the  plaintiff  need  not  new  assign  ; 
as  the  defendant,  by  his  plea,  undertakes  to  prove  a  license  sufficient  to 
cover  all  the  acts  of  trespass,  (c^) 

With  respect  io  jjlace,  it  is  a  rule,  that  if  the  plaintiff  in  trespass  give  it 
a  name  by  his  writ,  the  defendant  cannot  vary  from  that  name  ;  but  if  the 
writ  be  only  general,  quare  clausum  fregit,  and  the  plaintiff  give  a  name 
in  his  count,  this  shall  not  bind  the  defendant,  but  he  may  give  the  place 
another  name.(e)  And  it  is  on  all  hands  agreed,  that  when  the  writ  and 
count  are  both  general,  the  defendant  may  give  the  place  a  name  in  his 
plea ;(/)  or  he  may  plead  liherum  tenementum  generally,  without  giving 
it  a  na,me.(g)  But  when  the  place  is  made  material  by  the  defendant's  plea, 
he  must  show  it  with  certainty ;  as  in  trespass,  for  taking  and  carrying 
away  the  plaintiff's  goods  in  D.,  the  defendant  pleaded  that  the  locus  in 
quo  was  his  freehold,  and  that  he  took  the  goods  damage  feasant,  &c.  the 
plaintiff  demurred  generally,  and  had  judgment ;  for  the  action  being  transi- 
tory, there  is  no  locus  in  quo  supposed,  D.  being  only  alleged  for  a  venue ; 
therefore,  if  the  defendant  will  make  the  place  material,  it  must  come  on 
his  part  to  show  the  certainty  of  it.  (7i) 

If  the  defendant  say,  that  the  locus  in  quo  is  six  acres  in  D.  which  are 

his  freehold,  and  the  plaintiff  say  they  are  Ms  freehold,  and  in  truth  the 

plaintiff  and  defendant  have  both  six  acres  there,  it  was  in  one 

[  *691  ]   case  *determined,  that  the  defendant  cannot  give  in  evidence,  that 

he  committed  the  trespass  in  his  own  soil,  unless  he  give  a  name 

(m)  T.  Raym.  86.  And  see  further,  a,s  to  departure  in  pleading,  2  Wms.  Saund.  5  Ed.  84, 
a.  &c.     1  Chit.  PI.  4  Ed.  556,  &c.     Steph.  PL  405,  &c. 

(a)  3  Blac.  Com.  311.  {h)  6  Mod.  120.     2  Ld.  Rayra.  1015. 

(c)  Bui.  Ni.  Pri.  1*7;  and  see  1  Esp.  Rep.  38.  Ry.  &  Mo.  118.  1  Car.  &  P.  381,  S.  C. ; 
but  see  Cro.  Car.  514,  15,  contra.  (d)   1  Car.  &  P.  448,  677  ;  and  see  11  East,  451. 

(e)  Per  Fairfax,  Just.  22  Edw.  IV.  17.     Willes,  222,  &c.     2  Blac.  Rep.  1090. 

(/)  Bro.  Abr,  tit.  Trespass,  pi.  277,  300,  366.  {g)  Id.pl.  153. 

(A)  2  Salk.  453.     6  Mod.  117,  S.  C. 


OF  NEW  ASSIGNMENTS.         '  691 

certain  to  the  six  acres  ;  for  otherwise,  it  is  said,  the  phiintiff  cannot  make 
a  new  assignment. (r/)  So  where  the  plaintiff,  in  trespass  qiiare  clausum 
fregit,  names  the  close  in  his  declaration,  and  the  defendant  pleads  liberum 
tene7nentum  generally,  without  giving  any  further  descrij)tion  of  the  close, 
the  plaintiff  is  not  driven  to  a  new  assignment ;  hut  is  entitled  to  recover, 
upon  proving  a  trespass  committed  in  a  close  in  his  possession,  bearing  the 
name  given  in  the  declaration,  although  the  defendant  may  have  a  close  in 
the  same  parish,  known  by  the  same  name. (6)  But  where  the  defen<lant, 
in  trespass  quare  clausum  fregit  in  D.  pleads  Uheriim  tenementum,  with- 
out giving  the  close  a  name,  and  issue  is  joined  thereupon,  it  seems  to  be 
sufficient  for  him  to  show  ang  close  there  that  is  his  freehold  ;(c)  and  there- 
fore, in  that  case,  the  better  way  is  to  make  a  new  assignment. 

As  the  plaintiff  may  new  assign  the  trespass  in  a  different  close,  so  ho 
may  new  assign  it  in  another  part  of  the  same  close.  In  the  latter  case,  he 
ought  to  allege,  in  what  other  part  of  the  close  the  defendant  committed  the 
trespass,  as  in  the  south  or  north  part,  so  that  the  difference  may  be  plainly 
perceived. ((^)  If  the  defendant  justify  under  a  right  of  way,  the  plaintiff 
may  either  deny  the  existence  of  the  right  claimed  by  the  defendant,  or 
admitting  it,  he  may  new  assign  the  trespass,  extra  viam  :  or,  if  the  decla- 
ration be  so  framed  as  to  include  several  trespasses  of  the  same  nature,  he 
may  deny  the  right,  as  Avell  as  make  a  new  assignment,  by  saying  that  he 
brought  his  action,  not  only  for  the  trespass  attempted  to  be  justified,  but 
also  for  the  other  trespass  extra  viam.  And  where  the  defendant  justifies 
under  a  right  of  common  of  pasture,  or  turbary,  &c.  the  plaintiff  ma}',  if  the 
declaration  will  admit  of  it,  state  the  trespass  to  have  been  committed  on 
other  occasions,  and  for  other  purposes,  than  those  mentioned  in  the  plea. 
But  Avhere  the  plaintiff'  complains  of  a  single  act  of  trespass,  which  is  justi- 
fied by  the  defendant,  the  plaintiff  cannot  in  his  replication  take  issue  upon 
the  facts  of  the  justification,  and  also  newly  assign  either  the  same  or  differ- 
ent matters ;  such  replication  and  new  assignment  being  double. (e)  The 
plaintiff  therefore,  in  such  case,  should  either  reply  to  the  plea,  or  new  assign 
the  trespass,  according  to  the  facts  of  the  case  :  If  the  plea  do  not  contain 
a  complete  answer  to  the  trespass,  then  the  plaintiff" should  reply,  by  denying 
or  confessing  and  avoiding  it :(/)  but  if  the  trespass  be  completely  justified 
by  the  plea,  the  plaintiff  should  not  reply  thereto,  but  make  a  ncAV  assign- 
ment, if  the  facts  of  the  case  will  warrant  it  :{g)  By  new  assigning, 
however,  he  admits  that  the  trespass  in  *the  declaration  is  answered  [  *C92  ] 
by  the  plea;  and  therefore,  uidess  a  different  trespass  of  the  same 
nature  can  be  proved,  the  plaintiff'  must  fail  in  his  action. (aa)  And  where 
the  declaration  consisted  of  two  counts,  to  the  first  of  which  there  was  a 
justification,  and  the  plaintiff  new  assigned  the  trespass,  as  having  been 
committed  at  a  subsequent  time,  but  failed  at  the  trial  in  proving  his  new 

(a)  Dyer,  23. 

(b)  1  Barn.  &  Cres.  489.     2  Dowl.  &  Rvl.  TlO,  S.  C;  and  sec  2  Binp.  49. 

(c)  2  Salk.  453.  6  Mod.  119,  S.  C. ;  and  see  Willcs,  223.  7  Durnf.  &  [Eapt,  335,  per 
Lawrence,  J.  Atherton  v.  Fritchard,  E.  43  Geo.  III.  K.  B.  2  Taunt.  159.  1  '\Vms.  Suund. 
299,  b.  c.     1  Chit.  PI.  4  Ed.  546,  7. 

{(I)  Bfo.  Abr.  tit.  Trespass,  pi.  203. 

(<•)   10  East,  73,  80  ;  and  see  7  Taunt.  150.  (/")   16  East,  82. 

.  (<j)  2  Wils.  3  ;  and  sec  Cro.  Car.  228.  2  Durnf.  &'East,  172,  177.  3  Durnf.  k  East,  292. 
7  Durnf.  &  East,  654.  11  East,  400.  8  Moore,  326.  1  Bing.  317,  S.  C.  Kv.  &  Mo.  118. 
1  Car.  &  P.  381,  S.  C.  4  Barn.  &  Cres.  704.  7  Dowl.  &  Ryl.  187,  S.  C.  5  'Barn.  &  Cres. 
485.     8  DowL  &  Ryl.  257,  S.  C. 

{aa)  16  East,  82. 


Qf)2  OF  CONCLUDING  THE  REPLICATION,  ETC. 

assio-nment,  the  court  held,  that  he  couhl  not  have  recourse  to  the  second 
count :  for  by  new  assigning  he  admitted  that  he  did  not  intend  to  proceed 
for  tlic  trespass  that  was  justified,  but  to  rely  on  his  new  assignment ;  and 
as  there  were  only  two  trespasses,  one  of  which  was  admitted  to  be  answered, 
he  could  not  avail  himself  of  the  other  trespass,  both  on  the  new  assign- 
ment and  on  the  second  count.  (&) 

A  new  assignment,  being  in  nature  of  a  new  declaration, (c)  should  be 
equally  certain  ;  and  the  defendant  may  answer  it  in  the  same  way,  either 
by  pleading  the  general  issue  of  not  guilty,  or  a  special  justification. (c^) 
But,  in  answer  to  a  new  assignment  at  a  difl'erent  place,  he  cannot  say  that 
the  places  mentioned  in  the  plea  and  new  assignment  are  the  same  ;(ee)  for 
by  new  assigning,  the  plaintiff  admits  the  truth  of  the  plea,  and  is  estopped 
from  giving  any  evidence  in  the  place  stated  therein ;  so  that  if  the  places 
are  in  truth  the  same,  the  defendant  may  take  advantage  of  it  on  the  general 
issue  of  not  guilty.  Neither  can  the  defendant  justify  at  a  difierent  place, 
and  traverse  the  place  mentioned  in  the  new  assignment. (^) 

When  a  replication  denies  the  whole  substance  of  the  defendant's  plea, 
there  the  plaintiff  ought  to  tender  an  issue,  and  conclude  to  the  country  :{gg) 
and  it  matters  not  whether  the  replication  in  such  case  be  with  or  without 
a  traverse ;  for  where  a  traverse  comprises  the  whole  matter  of  the  plea, 
the  replication  may  still  conclude  to  the  country.(A)  But  when  a  particular 
fact  is  selected  and  denied,  the  conclusion  seems  to  depend  on  the  form  of 
the  replication  :  If  it  be  so  framed,  as  simply  to  deny  the  fact,  without  any 
inducement  or  traverse,  it  ought  to  conclude  to  the  country  ;[i)  but  the 
plaintifi"  is  not  always  obliged  to  reply  in  that  way,  for  in  some  cases  he  is 
allowed,  after  a  proper  inducement,  to  traverse  the  fact,  with  an  absque 
hoc  ;{k)  and  when  a  particular  fact  is  so  traversed,  the  replication  should 
conclude  to  the  court,  with  an  averment  and  prayer  of  damages, 
[  *693  ]  or  *of  the  debt  and  damages  :(a)  And  it  is  an  invariable  rule, 
that  whenever  new  matter  is  alleged  in  the  replication,  it  should 
be  concluded  with  an  averment,  in  order  to  give  the  defendant  an  oppor- 
tunity of  answering  it. {bb)  A  new  assignment  concludes,  by  averring  that 
the  trespass  newly  assigned  is  another  and  different  trespass  than  that 
mentioned  in  the  plea  ;  wherefore,  inasmuch  as  the  defendant  hath  not 
answered  the  trespass  newly  assigned,  the  plaintiff  prays  judgment,  and 
his  damages,  &c. 

(b)  2  Duruf.  &  East,  1T6,  7  ;  and  see  1  Durnf.  &  East,  479.  Bui.  Ni.  Pri.  17.  1  Car.  &  P. 
394,  5. 

(c)  1  Ken.  389.  (d)  Bro.  Abr.  tit.  Trespass, pi.  1G8,  359. 
(ee)  Id.pl.  3,  168.     Cro.  Eliz.  355,  492,  3. 

[ff)  Id.  pi.  163.  And  see  further  as  to  new  assignments,  when  necessary  or  not,  and  how 
made,  and  the  pleadings  thereon,  1  Wms.  Saund.  5  Ed.  299,  (6).  2  Wms.  Saund.  5  Ed.  5, 
(3).     1  Chit.  PL  4  Ed.  542,  &c.     Steph.  PI.  241,  &c. 

{gg)   1  Bur.  316.     2  Bur.  1022.     Doug.  94,  428.     2  Durnf.  k  East,  442,  3. 

\h)  1  Salk.  4. 

\i)  2  Durnf.  &  East,  439  ;  and  the  cases  there  cited  of  Bush  v.  Leake,  T.  23  Geo.  III.  K.  B. 
Slater  v.  Came,  H.  25  Geo.  III.  K.  B.  and  Carter  v.  Yates,  T.  27  Geo.  III.  K.  B.  accord. 
Mulliner  v.  Wilkes,  E.  23  Geo.  III.  K.  B.  semb.  contra. 

(k)  Fen  T.  Alston,  cited  in  1  Bur.  320,  21.  2  Str.  871.  2  "VVils.  113.  Barnes,  IGl,  S.  C. 
Doug.  428. 

(a)  Id.  Ibid.  1  Bur.  319.     2  Durnf  &  East,  442,  3. 

(bb)  2  Wils.  65.  Doug.  58.  2  Durnf  &  East,  576.  And  see  further,  as  to  the  mode  of 
concluding  replications,  &c.,  and  when  they  should  conclude  to  the  contrary,  or  with  a 
verification  ;  1  Wms.  Saund.  5  Ed.  103,  (1),  327,  (1),  334,  (9),  338,  (5,  7),  339,  (8).  2  Wms. 
Saund.  5  Ed.  190,  (5).     1  Chit.  PL  4  Ed.  554,  &c.     Steph.  PL  247,  8;  39G,  &c. 


OF  DEMURRERS.  693 

In  the  King's  Bench,  Avhen  the  plea  was  entered  in  the  general  issue 
book,  or  deUvered  to  tlic  pLiintifT's  attorney,  the  replication  should  in  all 
cases  be  deUvered  to  the  (lefciKlant's  attorney  ;  but  otherwise  it  should  be 
filed  in  the  office  of  the  clerk  of  the  papers:  And  a  similiter  to  the  general 
issue  must  be  delivered,  or  the  defendant  will  be  entitled  to  sign  a  judg- 
ment of  non  pro8.{c)  The  replication  also  should  be  signed  by  counsel, 
unless  it  conclude  to  the  country.  In  the  Common  Pleas,  the  replication 
is  either  filed  in  the  prothonotary's  office,  or  delivered  to  tlie  defendant's 
attorney  :  And,  in  that  court,  a  tender  of  an  issue  in  fact  must  be  signed 
by  a  Serjeant,  but  a  joinder  in  issue  need  not.(d) 

If  the  plaintift'  reply,  Avithout  joining  issue,  the  defendant  may  be  called 
upon  to  rejoin;  or  if  there  be  a  new  assignment,  he  may  be  ruled  to  plead 
thereto,  in  like  manner  as  to  the  original  declaration. (e)  The  rejoinder 
should  be  delivered  to  the  plaintiff's  attorney,  or  filed  in  the  office  of  the 
clerk  of  the  papers,  in  the  King's  Bench,  in  like  manner  as  the  replication  ; 
In  the  Common  Pleas,  it  is  filed  with  the  prothonotaries.  And  after  a  re- 
joinder, if  the  parties  are  not  yet  at  issue,  the  plaintiff  must  surrejoin,  the 
defendant  rebut,  and  the  plaintiff  surrebut,  &c.  till  issue  is  joined.  The 
rule  for  these  purposes  is  given  by  the  master  or  secondaries,  in  like  man- 
ner as  the  rule  to  reply  ;  and  if  the  defendant  neglect  to  rejoin  or  rebut, 
when  called  upon  for  that  purpose,  the  plaintiff,  in  the  King's  Bencli,  may 
strike  out  the  previous  pleadings,  and  sign  judgment  by  default,  as  for  want 
of  plea.(/)  If  the  plaintiff,  on  the  other  hand,  do  not  surrejoin,  or  surre- 
but, within  the  time  limited  by  the  rule,  or  order  for  further  time,  the  de- 
fendant may  sign  a  judgment  of  non  jJros  ;  and  it  is  not  necessary  for  him, 
in  the  King's  Bench,  to  demand  a  surrejoinder,  &c.  the  service  of  the  copy 
of  the  rule  being  deemed  a  demand  of  itself;  but,  in  the  Common  Pleas,  a 
surrejoinder,  &c.  must  be  demanded,  before  judgment  is  signed. 


*CIIAPTER    XXIX.  [*694] 

Of  Demurrers,  and  Amendment. 

A  Demurrer  admits  the  facts,  and  refers  the  law  arising  thereon  to  the 
judgment  of  the  court  :(a)  And  it  is  either  to  the  whole  or  part  of  a  decla- 
ration ;  or  to  the  plea,  replication,  &c.  When  tlierc  are  several  counts  in 
a  declaration,  some  of  which  are  good  in  point  of  law,  and  the  rest  bad,  the 
defendant  can  only  demm*  to  the  latter ;  for  if  he  were  to  demur  generally 
to  the  whole  declaration,  the  court  would  give  judgment  against  him. (6) 
So,  if  the  sum  demanded  by  a  declaration  in  scire  facias  be  divisible  on 
the  record,  and  there  be  no  objection  to  one  part  of  it,  a  demurrer  which 
goes  to  the  Avhole  is  bad.(c'6')     If  a  plea  or  replication,  Avhich  is  entire,  be 

{c)  3  Dowl.  k  Ryl.  1. 

(d)   1  Bos.  k  Pul.  4GD.     3  Bos.  &  Pul.  IVI.  (r)  Append.  Chap.  XVIII.  §  9. 

(/)  5  Duruf.  k  East,  l.")2.     And  see  further,  as  to  rcjoiitdcn!,  &c.  1  Wms.  JSauud.  5  Ed. 
•  318,  a.  (1).  1  Chit.  PI.  4  Ed.  5G3,  &c. 
{a)  Co.  Lit.  71,  b.  5  Mod.  132. 

{/j)   I  Wms.  Samid.  5  Ed.  28G,  (9).     2  Wms.  Saund.  5  Ed.  380,  (14).     1  Wils.  248.     1 
New  Rep.  C.  P.  43. 
(cc)   11  East,  5G5 


g94  0^  DEMURRERS. 

bad  in  part,  it  is  in  general  bad  for  the  whole  :{d)  But  a  plea  of  set-off, 
wherein  the  demands  are  divisible,  and  in  nature  of  several  counts  in  a 
declaration,  forms  an  exception  to  this  rule.(e) 

Demurrers  are  general  or  sjyecial  ;{f)  the  former  are  to  the  substance, 
the  latter  to  the  form  of  pleading.  Thus  if  a  defective  title  be  alleged,  it 
is  a  fault  in  substance,  for  which  the  party  may  demur  generally  ;  but  if  a 
title  be  defectively  stated,  it  is  only  a  fault  in  form,  which  must  be  specially 
assigned  for  cause  of  demurrer.  Of  the  latter  nature  is  duplicity  :  and  it 
is  not  sufficient  to  say  that  the  pleading  is  double,  or  contains  two  mat- 
ters ;  but  the  party  demurring  must  specially  show  wherein  the  duplicity 
consists.  (^) 

At  common  law,  there  were  special  demurrers,  but  they  were  never  ne- 
cessary except  in  cases  of  duplicity,  and  therefore  were  seldom  used ;  for 
as  the  law  was  then  taken  to  be,  upon  a  special  demurrer,  the  party  could 
take  advantage  of  no  other  defect  in  the  pleadings,  but  of  that  which  was 
specially  assigned  for  cause  of  his  demurrer ;  but  upon  a  general  demurrer, 
he  might  take  advantage  of  all  manner  of  defects,  that  of  duplicity  only 
excepted.  And  there  was  no  inconvenience  in  this  practice  ;  for  the  plead- 
ings being  at  bar  viva  voce,  and  the  exceptions  taken  ore  tenus, 
[  *695  3  *the  causes  of  demurrer  were  as  well  known  upon  a  general  de- 
murrer, as  upon  a  special  one. (art) 

Afterwards,  when  the  practice  of  pleading  at  bar  was  altered,  this  public 
inconvenience  followed  from  the  use  of  general  demurrers ;  that  the  practice 
went  on  to  argument,  without  knowing  what  they  were  to  argue  :  and  this 
was  the  occasion  of  making  the  statute  27  Eliz.  c.  5,  by  which  it  is  enacted, 
that  "after  demurrer  joined  and  entered  in  any  action  or  suit,  in  any  court 
of  record,  the  judges  shall  proceed  and  give  judgment,  according  as  the  very 
right  of  the  cause  and  matter  in  law  shall  appear  to  them,  without  regarding 
any  imperfection,  defect,  or  want  of  form,  in  any  writ,  return,  plaint,  decla- 
ration, or  other  pleading,  process,  or  course  of  proceeding  whatsoever, 
except  those  only  which  the  party  demurring  shall  specially  and  particu- 
larly set  down  and  express,  together  with  his  demurrer."  This  statute,  by 
making  known  the  causes  of  demurrer,  was  so  far  restorative  of  the  common 
law  :(rt)  and  as  a  general  demurrer  before  did  confess  all  matters  formally 
pleaded,  so  by  this  statute,  whenever  the  right  sufficiently  appeared  to  the 
court,  it  confessed  all  matters,  though  pleaded  informally. (5) 

But  there  were  still  many  defects  and  imperfections,  which  were  not 
aided  as  form  upon  a  general  demurrer :  to  remedy  which  it  was  enacted, 
by  the  statute  4  Ann.  c.  16,  §  1,  that  "  no  advantage  or  exception  shall  be 
taken  of  or  for  an  immaterial  traverse,  the  default  of  entering  pledges  upon 
any  bill  or  declaration,  the  default  of  alleging  a  jjrofert  in  ciirid  of  any 
bond,  bill,  indenture,  or  other  deed,  mentioned  in  the  declaration  or  other 
pleading,  or  of  letters  testamentary,  or  letters  of  administration,  the  omis- 
sion ofvi  et  armis,  or  contra  pacem,  the  want  of  averment  of  hoc  paratus 

(d)  1  Wms.  Saund.  5  Ed.  28,  (2),  337,  (1).  2  "Wms.  Saund.  5  Ed.  127,  b.  c.  1  Salk.  312. 
1  Durnf.  &  East,  40.     3  Durnf.  &  East,  374.     1  Chit.  PI.  4  Ed.  464,  5.     Steph.  PI.  159,  &c. 

(e)  2  Blac.  Rep.  910. 

(/)  Co.  Lit.  72,  a.  Steph.  PI.  403,  4.  And  for  the  forms  of  general  demnirers  to  declara- 
tions, and  pleas,  &c.  and  joinders  therein,  see  Append.  Chap.  XXIX.  §  1,  3,  6,  7. 

{(j)  R.  M.  1654,  I  17.  K.  B.,  R.  M.  1654,  |  20,  C.  P.  1  Salk.  219.  Wilies,  220.  Cas. 
temp.  Hardw.  167  ;  and  see  1  Wms.  Saund.  5  Ed.  337,  b.  (3).  Steph.  PL  264,  &c.  1 
Moore  &  P.  102.     4  Bing.  428,  S.C.  (aa)  3  Salk,  122. 

(a)  3  Salk.  122.  (b)  Hob.  233. 


OF  DEMURREKS.  695 

est  verifieare,  or  hoc  paraUis  est  verificare  'per  recordum,  or  not  alleging 
prout  patet  per  recordum  :{c)  but  the  court  sliall  give  judgment,  according 
to  the  very  right  of  the  cause,  Avithout  regarding  any  such  imperfections, 
omissions  and  defects,  or  any  other  matter  of  like  nature,  except  the  same 
shall  be  specially  and  particularly  set  down,  and  shown  for  cause  of  demur- 
rer, notwithstanding  the  same  might  have  heretofore  been  taken  to  be 
matter  of  substance,  and  not  aided  by  the  statute  of  Queen  Elizabeth,  so  as 
sufficient  matter  appear  in  the  pleadings,  upon  which  the  court  may  give 
judgment,  according  to  the  very  right  of  the  cause."  Since  the  making  of 
these  statutes,  the  party,  on  a  general  demurrer,  can  only  take  advantage 
of  defects  in  substance  ;  and  therefore,  if  the  defects  be  not  clearly  of  that 
nature,  it  is  safest  to  demur  specially,  in  which  case  he  might  not  only  take 
advantage  of  such  defects,  but  also  of  any  others  that  are  specially  set 
down.((Z)  The  plaintifl',  however,  need  never  demur  specially  to  a  plea  in 
abatement. ((^) 

*A11  demurrers,  whether  general  or  special,  must  be  signed  by  [  *696  ] 
counsel  in  the  King's  Bench,(aa)  or  a  Serjeant  in  the  Common 
Pleas  ;(66)  and,  in  the  King's  Bench,  general  demurrers  to  the  decla- 
ration UMist  be  delivered(c6')  to  the  plaintiff 's  attorney ;  but  special 
demurrers,  or  general  demurrers  after  special  pleas,  must  be  filed  in  the 
oJBice  of  the  clerk  of  the  papers,  who  makes  copies  of  them.  And  a  general 
demurrer  to  part  of  a  declaration,  and  a  general  issue  to  the  rest,  or  a 
general  demurrer  to  a  plea  of  nil  debet,  in  an  action  of  debt  on  bond,  must, 
we  have  seen,(t?(i)  be  delivered  to  the  opposite  attorney,  and  not  ^^ecZ  with 
the  clbrk  of  the  papers.  In  the  Common  Pleas,  all  demurrers,  whether 
general  or  special,  may  either  be  filed  in  the  prothonotarics'  office,  or  de- 
livered to  the  opposite  attorney. (et^)  And  when  either  party  has  demurred, 
he  should  obtain  a  rule  from  the  master  in  the  King's  Bench,  and  enter  it 
■with  the  clerk  of  the  rules,  for  the  opposite  party  to  join  in  demurrer ;(/) 
a  copy  of  Avhich  rule  should  be  duly  served.  In  the  Common  Pleas,  a  rule 
to  join  in  demurrer  is  given  with  the  secondaries,(^)  in  like  manner  as  the 
rule  to  plead;  and  a  joinder  in  demuiTcr  should  be  demanded, (//)  before 
judgment ;  and  in  that  com't,  a  joinder  in  demurrer  must  have  a  seijeant's 
hand.(i)  The  defendant,  we  may  remember,  cannot  waive  a  general  de- 
mm'rer  to  the  declaration,  in  the  King's  Bench  ;  but  a  special  one  may  be 
waived  after  the  book  is  made  up,  unless  the  defendant  has  been  previously 
ruled,  and  elected  to  abide  by  \i.{k)  In  the  Exchequer  it  is  a  rule,(Z)  that 
"in  all  cases  where  the  plaintiff  demurs  to  the  defendant's  plea,  or  other 
subsequent  pleading,  and  the  defendant  joins  in  demurrer,  the  plaintiff  shall 
be  at  liberty  to  enter  the  issue  in  law  upon  the  roll,  and  move  for  a  con- 
cilium, without  giving  the  defendant  any  rule  to  bring  in  the  demurrer 
book." 

(c)  11  East,  516,  5G5. 

\d)  1  Wnis.  Saund.  5  Ed.  337,  b.  (3).     And  see  further,  as  to  demurrers  and  Joinders,  1 
Chit.  PI.  4  Ed.  573,  &c.     Stcph.  PI.  158,  &c. 

(?)  Per  Bayley,  J.  2  Maiile  &  Sel.  485.     Ante,  638.         [aa)  Per  Cur.  T.  21  Geo.  III.  K.  B. 

{bb)  Douqlas'x.  Child,  E.  33  Geo.  III.  C.  P.    Allen  v.  Ilall,  Imp.  C.  P.  7  Ed.  298,  S.  P. 

(cc)   1  Chit.  Rep.  212.     2  Chit.  Rep.  295.  {dd)  Ante,  672. 

\ee)  Imp.  C.  P.  7  Ed.  298.  (/)  Append.  Chap.  XXIX.  I  1. 

h)  Id.  §  8.  (h)  Id.  I  10. 

(t)  2  Bos.  &  Pul.  336 ;  and  see  3  Bos.  &  Pul.  171,  in  notis. 

(k)  Ante,  673,  4. 

{l)  R.  T.  26  &  27  Geo.  II.  §  4,  in  Scac.    Man.  Ex.  Append.  211. 


696 


OF  AMENDMENT. 


When  eitlier  party  demurSj  the  other,  in  due  time,  joins  in  demurrer, 
and  proceeds  to  argument ;  or  he  amends,  discontinues,(77i)  or  enters  a  nolle 
prosequi. (n) 

Ame7id7nents  are  either  at  common  law,  or  by  statute. (o)[a]  At  common 
law,  there  was  very  little  room  for  amendments :  for,  according  to  Britton^ 
the  judges  were  to  record  the  parols,  or  pleadings,  deduced  before  them  in 
judgment;  but  they  were  not  to  erase  their  records,  nor  amend  them, 
nor  record  against  their  inrolment,(jo)  &c.  All  mistakes,  however,  were 
amendable  at  common  law,  during  the  same  term  ;{q)  and  after- 
[  *697  ]  wards,  an  *amendment  was  in  some  instances  permitted,  as  in  the 
recital  of  a  writ,  or  entry  of  an  essoin  or  continuances, («)  &c. 
So,  at  common  law,  when  the  pleadings  were  ore  tenus  at  the  bar  of  the 
court,  if  any  error  was  perceived  in  them,  it  was  presently  amended.(6) 
Afterwards,  when  the  pleadings  came  to  be  in  paper,  it  was  thought  but 
reasonable  that  the  parties  should  have  the  like  indulgence,  (e)  And  hence 
it  is  now  settled,((i)  that  whilst  the  pleadings  are  in  paper,  and  before  they 
are  entered  of  record,  the  court  or  a  judge  will  amend  the  declaration, (e) 
plea,(/)  replication, (^^)  &c.  in  form  or  substance,  on  proper  and  equitable 
terms  ;[a]  and  declarations  in  actions  on  bail-bonds  may  be  amended,  in 

(m)  Ante,  Gil. 

(n)  Co.  Lit.  12,  a.  R.  M.  1654,  ?  17.     K.  B.,  R.  M.  1654,  |  20.     C.  P.  Ante,  681,  2. 

(o)  1  Str.  137. 

(p)  4  Inst.  255.     Gilb.  C.  P.  107.  (?)  8  Co.  157.     Gilb.  C.  P.  108. 

(a)  Gilb.  C.  P.  108,  9.  (i)   10  Mod.  88.     1  Str.  11. 

(c)  2  Salk.  520.     Gilb.  C.  P.  114,  15.  (d)   1  Salk.  47.     3  Salk.  31. 

(/)   1  Wils.  7.  (/)  Id.  223. 

(gff)  Id.  16. 

[a]  See  note  [b]  ante  p.  161. 

[bJ  An  amendment  in  a  declaration  may  be  allowed  -which  does  not  change  the  nature 
or  subject-matter  of  the  action,  even  though  without  such  amendment,  the  action  could  not 
have  been  sustained.  Skinner  v.  Grant,  12  Verm.  456.  Cabarga  v.  Secffcr,  5  Harris,  514. 
So  long  as  the  form  of  action  is  not  changed,  and  the  court  can  perceive  that  its  identity  is 
preserved,  the  particular  allegations  of  the  declaration  may  be  changed  by  amendment,  and 
others  superadded,  in  order  to  cure  imperfections  and  mistakes  in  the  manner  of  stating  the 
plaintiff's  case.  Stevenson  v.  JIudgett,  10  New  Hamp.  338.  Pcrleyy.  Brown,  12  New  Hamp. 
493.  Thompson  v.  Phelin,  2  Post.  (N.  H.)  339.  Christian  v.  Penn,  5  Geo.  482.  Lawrence 
V.  Langley,  14  New  Hamp.  70. 

Thus,  it  has  been  held,  that  a  new  count  for  the  assertion  of  a  right  or  the  enforcement 
of  a  claim,  growing  out  of  the  same  transaction,  act,  agreement,  or  contract,  upon  which 
the  original  declaration  is  founded,  is  not  for  a  new  cause  of  action,  and  may  be  inserted  as 
an  amendment,  however  different  the  form  of  liability  may  be.  Smith,  v.  Palmer,  6  Cush. 
513.  But  the  form  of  the  action  must  remain  the  same.  Bishop  v.  Baker,  19  Pick.  517. 
Guilford  v.  Adams,  19  Pick.  376.  Casnard  v.  Eve,  Dudley,  (Geo.)  108.  Pearson  v.  Reid,  10 
Geo.  580.  Rugby  v.  Robhson,  19  Ala.  404.  French  v.  Gerrish,  2  Foster,  (N.  H.)  97.  Wilcox 
T.  Sherman,  2  Rh.  Island,  540  ;  and  the  court  will  presume  the  cause  of  action  to  remain  the 
same  unless  the  contrary  is  shown.  Penobscot  Co.y.  Baker,  4  Shep.  233.  Thus,  in  an  action 
of  trover,  a  count  for  additional  property  may  be  added.  Iloskins  v.  Berris,  8  Washb.  (Vt.) 
673  ;  or  for  conversion,  3  Red.  353 ;  or  perfert  of  a  covenant  relied  on  even  after  demurrer. 
Bowles  V.  Ellmore,  1  Gratt.  385.  Uale  v.  Lawrence,  2  Zab.  (N.  J.)  72  ;  lor  a  variation  between 
the  declaration  and  the  bond.  Fulkerson  v.  The  State,  17  Miss.  49;  or  after  demurrer  over- 
ruled, plaintiff  may  amend.  Whitfield  v.  Woldredge,  1  Cushm.  (Miss.)  183  ;  or  an  omission  of 
seizin  and  disseizin.  Roivell  v.  Small,  17  Shep.  (Maine)  30;  or  by  adding  a  separate  demise. 
Deny.  La  Greaves,  1  HaiT.  (N.  J.)  357;  or  diminishing  the  extent  of  the  claim.  Plummer  v. 
Walker,  11  Shep.  14  ;  or  by  striking  out  a  count  as  to  which  the  court  has  no  jurisdiction.  Pol- 
lardx.  Barnes,  2  Cushm.  191.  Soule  v.  Russel,  13  Metcf.  436  ;  or  in  the  assignment  of  a  breach. 
Sharpy.  Colgan,  4  Miss.  29  ;  or  by  adding  a  bill  of  particulars.  Tarbell  v.  Dickinson,  3  Cush. 
345;  or  adding  a  plea  of  property  in  replevin.  Helling  y.  Wright,  2  Harris,  (Penn.)  273  ;  or  a 
new  count  alleging  promises  to  an  administrator.     Smith  v.  Proctor,  1  Sandf.  Sup.  C.  Rep. 


OF  AMENDMENT,  697 

the  Common  Pleas,  as  well  as  any  other  declarations. (Zi/?)  Amendments 
are  commonly  made  by  summons  and  order,  at  a  judge's  chambers :  or 
they  may  be  made  by  the  judges,  on  their  circuits,  by  the  statute  1  .Geo. 
IV.  c.  55,  §  5  •,{u)  previously  to  Avhich  statute,  it  seems  that  -when  the 
amendment  proposed  was  material,  it  could  not  have  been  made  by  a  judge 

(/(/()  Barnes,  2C,  114.  (//)  An(e,  510.     1  Car.  &  P.  IS?,  8,  (d.) 

12.  Hill  V.  rinny,  5  Shep.  40'J;  or  an  omi.=;sion  in  ejectment  to  state  the  quantity  of  the 
estate,  whether  in  fee  or  a  lesser  estate.  IJanning  v.  Ilarley,  4  Denio,  203;  or  after  arbitra- 
tion and  aAvard,  5  Harris,  (Penn.)  173;  or  judgment  by  default.  Nei(ifnbur(/erx.  CainplfU^  11 
Miss.  359;  or  by  striking  out  names  of  some  of  the  defendants.  Taylor  v.  Jonci,  1  Carter 
(Ind.)  17  ;  or  by  correcting  a  writ,  sci.fa.  and  declaration  to  make  it  conform  to  the  record. 
Condet  V.  Gregory^  1  Zab.  (N.  J.)  429;  or  an  omission  to  plead  a  custom  specially.  Lcrjatlv. 
Withers,  5  Gratt.  24;  or  a  misdescription  of  a  note.  Nimmons  v.  Worthinyion,  1  ISmitli,  22G; 
or  in  covenant,  the  omission  to  state  that  the  contract  was  under  seal.  Winy  v.  Chase,  5 
Red.  260 ;  or  in  a  date  hiid  under  a  videlicet.  Zeiyler  v.  David,  23  Ala.  127.  Moore  v.  Boyd, 
11  Shep.  242  ;  or  in  the  amount  of  damages  laid  in  the  declaration.  Williamson  v.  Canna- 
day,  3  Ired.  349 ;  or  new  ground  may  be  laid  for  damages  even  after  general  demurrer,  to  a 
special  plea.  Ten  Eych  v.  2'he  Bel.  c^'  Ear.  Can.  Co.,  4  Harr.  (N.  J.)  5  ;  or  new  count  on  an 
agreement  where  the  former  count  is  for  worlv  and  labour.  Mixer  y.  Ilotcarth,  21  Pick.  205  ; 
or  a  new  count  for  goods  and  merchandize  where  fresh  count  is  on  a  note.  Jiurnham  v. 
Spooncr,  10  New  Hamp.  165  ;  or  in  the  style  or  name  in  which  the  action  is  brought.  Me- 
garyell  v.  The  Hazle.  Coal  Co.,  8  "W.  &  S.  342.  Ellett  v.  Abbott,  12  New  Hamp.  5C9.  But  an 
entirely  new  cause  of  action  cannot  be  introduced  by  amendment;  though  a  count  substan- 
tially different  from  the  declaration  may  be  added.  Maxivell  v.  Harrison,  8  Geo.  61.  Thus, 
in  an  action  of  trover  an  amendment  was  allowed,  adding  a  count  for  additional  property, 
which  was  taken  at  the  same  time  with  that  originally  mentioned  in  the  declaration.  Ilas- 
kins  V.  Berris,  23  Vt.  (8  Wash.)  0,  673.  But  where  the  original  declaration  was  trover  for 
certain  goods,  the  plaintiff  cannot  amend  by  introducing  a  new  count — charging  that  the 
defendant  attached  the  same  goods  on  a  writ  in  favour  of  the  plaintiff,  and  by  his  negligence 
lost  them.  Goddard  v.  I'crldns,  9  New  Hamp.  488.  Neither  Mill  the  court,  after  trial,  a 
verdict  for  the  plaintiff,  and  an  arrest  of  judgment  for  the  insufficiency  of  the  declaration, 
allow  an  amendment  of  the  declaration  in  ordinary  cases.  Bettsv.  Hoyt,  13  Conn.  469.  Nor 
after  a  case  has  gone  to  the  jury  and  been  arrested  by  non  suit.  Law  v.  Franks,  iCheves,  9. 
Neither  can  a  declaration  in  a  suit  against  two,  husband  and  wife,  for  slander,  be  amended 
by  striking  out  those  counts  whicli  allege  a  joint  slander,  and  leaving  those  only  which 
allege  slander  by  the  wife,  where  the  writ  was  against  the  two,  without  naming  them  as 
husband  and  wife.     Martin  v.  Kussell,  3  Scam.  342. 

In  New  York,  where  a  suit  is  intended  to  be  commenced  by  the  filing  and  service  of  a 
declaration;  and  bj' mistake  the  declaration  and  the  rule  to  plead  arc  entered  in  the  Clerk's 
Office  of  a  court  different  from  that  in  which  the  subsequent  proceedings  are  had,  the  court 
in  which  the  subsequent  proceedings  are  had  cannot  grant  an  amendment  b}'  permitting  a 
declaration  to  be  filled  and  rule  to  plead  to  be  entered  nunc  pro  tunc.  The  Pcojdev.  Superior 
Court  jVew  York,  18  Wend.  675. 

These  applications  are  matters  of  discretion,  and  a  refusal  to  grant  them  is  not  assignable 
as  error.  Phillips  v.  Dana,  1  Scam.  498.  Cartright  v.  Chabeil,  3  Texas,  261 ;  and  generally 
they  must  go  to  the  merits.  Waples  v.  MGce,  2  Harring.  444.  Robinson  v.  Holland,  2  Id. 
445;  and  if  granted  upon  terms,  they  must  be  complied  Avith  before  the  cause  can  proceed. 
Smith  V.  Johnston,  4  Harring.  541. 

As  to  the  Statute  of  Amendments,  in  Maine,  consult  Carter  v.  Thompson,  3  Shep.  464. 
Treat  v.  Strickland,  10  Id.  234.  Whiter  Cartr^r,  5  Red.  534.  Eastman's  Digest  tit.  Amendment. 
As  to  New  Hampshire,  Smith  v.  Bron-n,  1 4  New  Hamp.  67.  Gijchrist's  Digest,  tit.  Amendment, 
p.  15.  As  to  Massachusetts,  Minofs  Digest  and  Supp.  tit.  Amendment,  p.  28,  11.  As  to  Con- 
necticut, Day's  Digest,  tit.  Amendment,  p.  15.  As  to  New  York,  1  Clinton's  Digest,  tit. 
Amendment  Law,  p.  44.  As  to  New  Jersey,  1  Halsted's  Digest,  tit.  Araedment,  p.  51.  As 
to  Pennsylvania,  1  Wharton's  Digest,  tit.  Amendment,  p.  96,  6  Ed.  As  to  Virginia,  1  Tate's 
Digest.  As  to  North  Carolina,  1  Ired.  Digest,  tit.  p.  28.  As  to  South  Carolina,  Rice's  Digest, 
tit.  Amendment.  As  to  Georgia,  Vane  v.  Cravford,  4  Geo.  445.  Arnold  v.  Wells,  5  Id.  380. 
Short  V.  Kellogg,  10  Id.  180.  As  to  Alabama,  Clay's  Digest,  p.  312,  §  39.  Cheun  v.  Owens, 
22  Ala.  782.  As  to  Kentucky,  Digest  of  Ken.  Reps,  by  Monroe  and  Harlan,  vol.  i.  p.  54. 
As  to  Ohio,  Wilco.x's  Digest,  p.  20.  As  to  Indiana,  Gilman's  Digest,  tit.  Amendment.  As  to 
Illinois,  Anthony's  Digest,  tit.  Amendment,  p.  71.  As  to  Michigan,  Parks  v.  Barkham,  1 
Mann.  95.  As  to  Arkansas,  .4n</io/jy  v.  Bcebee,  2  Eug.  447.  As  to  Iowa,  Humphries  v.  Dagg, 
1  Greene,  435. 


QQI  OF  AMENDMENT. 

at  nisi  prius.{kJc)  And,  by  tlie  statute  9  Geo.  IV.  c.  15,  "  it  shall  and 
may  be  bnvful  for  every  court  of  record  holding  plea  in  civil  actions,  any 
judge  sitting  at  nisi  prius,  and  any  court  of  oi/er  and  terminer  and  general 
gaol  delivery,  in  England,  Wales,  the  town  oi  Berwiak-\x\)on-Tiveed,  and 
Ireland,  if  such  court  or  judge  shall  see  fit  so  to  do,  to  cause  the  record  on 
which  any  trial  may  be  pending  before  any  such  judge  or  court,  in  any 
civil  action,  or  in  any  indictment  or  information  for  any  misdemeanor, 
where  any  variance  shall  appear  between  any  matters  in  writing  or  in  print 
produced  in  evidence,  and  the  recital  or  setting  forth  thereof  upon  the 
record  whereon  the  trial  is  pending,  to  be  forthwith  amended  in  such  par- 
ticular, by  some  officer  of  the  court  on  payment  of  such  costs,  if  any,  to  the 
other  party,  as  such  judge  or  court  shall  think  reasonable ;  and  thereupon 
the  trial  shall  proceed,  as  if  no  such  variance  had  appeared  :  and  in  case 
such  trial  shall  be  had  at  nisi  prius,  the  order  for  the  amendment  shall  be 
indorsed  on  the  postea,  and  returned  together  with  the  record,  and  thereupon 
the  papers,  rolls,  and  other  records  of  the  court  from  which  such  record 
issued,  shall  be  amended  accordingly." 

The  declaration  may  be  amended,  in  form  or  in  substance :  and  it  may 
be  so  amended,  even  after  a  plea  in  abatement  of  misnomer,(Z)  or  the  statute 
of  additions, (m)  &c.  or  a  plea  of  7iul  tiel  record.(7i)[_A]  And  leave  has  been 
granted,  upon  the  application  of  the  plaintiff,  to  amend  the  declaration  after 
verdict,  by  increasing  the  damages  laid,  according  to  the  truth  of  the  case, 
as  found  by  the  jury  ;  the  former  verdict  being  at  the  same  time  set  aside, 
and  a  new  trial  granted,  to  enable  the  defendant  to  make  his  defence  to 
the  demand  so  enlarged. (o)[b]  So,  after  a  nonsuit  had  been  set  aside  in 
prohibition,  the  plaintiff  had  leave  to  amend  the  suggestion,  which  inad- 
vertently alleged  immemorial  payment  of  tithes  to  the  king  and  his  prede- 
cessors, by  inserting  "  and  to  such  other  person  or  persons  as  had  or 
claimed  title  thereto.  "(j!>)  And  the  court  of  Common  Pleas  permitted  the 
record  to  be  amended,  and  a  new  trial  had,  after  nonsuit  for  a  variance,  in 
an  undefended  cause.(g)  And  that  court,  in  a  late  case,  amended  the  de- 
claration in  quare  impedit,  after  it  had  been  twice  amended  before,  and 
after  a  trial  had  thereon. (gg)  But  in  the  King's  Bench,  the  plaintiff  was 
not  formerly  allowed  to  add  a  new  count  to  his  declaration,  under  pretence 

(kk)  1  Stark.  Ni.  Pri.  74. 

[l)  1  Salk.  50.  1  Ld.  Raym.  6G9,  S.  C.  1  Str.  11  Cas.  temp.  Hardw.  44.  7  Durnf.  &  East, 
698.  3  Maule  &  Sel.  450.  2  Chit.  Rep.  8,  28.  Fer  Cur.  H.  32  Geo.  III.  C.  P.  Imp.  C.  P. 
rEd.  176. 

(m)  2  Str.  739.  2  Ld.  Raym.  1472,  S.  C. ;  but  see  1  Salk.  50.  2  Ld.  Laym.  859,  S.  C. 
Id.  1307,  contra. 

(«)  1  Wils.  87.  7  Durnf.  &  East,  447,  {il).  2  Chit.  Rep.  27,  K.  B.;  and  see  Cas.  Pr.  C.  P. 
76.  Barnes,  3  S.  C.  Id.  4,  5;  but  see  1  Salk.  52.  6  Mod.  263,  310,  S.  C.  semh.  contra.  See 
also  2  Bur.  901. 

(o)  7  Durnf.  &  East,  132  ;  and  see  2  Chit.  Rep.  27. 

\p)  Franklin  v.  Holmes,  T.  21  Geo.  III.  K.  B. 

[q)  3  Taunt.  31 ;  and  see  2  Bos.  &  Pul.  243.  1  New  Rep.  0.  P.  28.  9  East,  335.  1  Stark. 
Ni.  Pri.  312,  13.  5  Barn.  &  Aid.  896.  8  Moore,  104.  1  Bing.  233,  S.  C;  but  see  5  Moore, 
164.     2  Brod.  &  Bing.  397,  S.  C.  contra. 

(qq)  4  Bing.  525;  and  see  13  Price,  736.     M'Clel.  388,  392,  S.  C. 

[a]  See  CartwrightY.  Chabeil,  3  Texas,  2G1.  But  one  action  cannot  be  substituted  for 
another,  as  trover  for  trespass.  Wilcox  v.  Sherman,  2  Rhode  Island,  540.  Maxwell  v.  Harrison, 
8  Geo.  61. 

[b]  See  accord  3F  Vicar  v.  Beedi/,  1  Red.  Maine  R.  314.  Spence  v.  Ondotf,  3  Texas,  147. 
Strange  v.  Floyd,  9  Gratt.  Va.  474.     Garland  v.  Davis,  4  How.  S.  C.  Rep.  131. 


OF  AMENDMENT.  ^97" 

of  amending  it,  after  plea  pleaded,  or  after  the  end  of  tlie  second 
term  *from  the  return  of  the  writ :(«)  and  a  new  right  of  action  [  *698  ] 
was  considered,  in  tliis  respect,  as  a  new  count. (/>)  Yet,  where 
the  plaintiffs  declared  as  executors,  on  a  promise  to  their  testator,  and 
issue  was  joined  on  a  plea  of  the  statute  of  limitations,  the  court  of  King's 
Bench,  after  two  terms,  permitted  the  plaintiffs  to  amend,  by  laying  the 
promise  to  have  been  made  to  themselves  :{r)  But  the  amendment  in  this 
case  was  under  particular  circumstances  ;  and  if  it  had  not  been  allowed, 
the  action  would  have  been  lost,  by  the  running  of  the  statute  of  limita- 
tions.((Z)  It  is  now  the  practice  however,  in  the  King's  Bench,  to  permit 
a  new  count  to  be  added  after  the  end  of  the  second  term,  when  the  cause 
of  action  is  substantially  the  same ;  though  not  for  a  different  cause  of 
action. 

In  the  Common  Pleas,  the  course  of  the  court  formerly  was,  that  the 
plaintiff  might,  at  any  time  before  the  end  of  the  second  term,  have  leave 
to  amend  his  declaration,  by  adding  new  counts,  but  not  afterwards.(e)  At 
present,  however,  it  is  not  an  invariable  rule  in  that  court,  that  a  new  count 
shall  not  be  added  after  the  second  term.  The  principle  of  the  rule  is,  that 
as  the  plaintiff  would  have  been  out  of  court  at  the  end  of  the  second  term, 
if  he  had  not  declared  at  all,  so  the  court  will  not  suffer  him  to  declare  upon 
a  fresh  cause  of  action,  after  that  time  has  elapsed  ;(/)  but  when  the  cause 
of  action  is  substantially  the  same,  a  new  count  may  be  added  :  Therefore, 
"where  the  plaintiff  having  obtained  leave  to  amend  a  count  in  his  declara- 
tion, added  new  counts,  which  contained  no  ncAv  cause  of  action,  but  only 
varied  the  manner  of  stating  that  which  was  demurred  to,  the  court  of 
Common  Pleas  would  not  order  them  to  be  struck  out.(^)  So  in  an  action 
by  the  assignees  of  a  bankrupt,  for  the  rescue  of  goods  distrained  for  rent 
due  to  the  bankrupt,  that  court  allowed  the  declaration  to  be  amended,  by 
adding  new  counts,  stating  the  facts  to  have  taken  place  in  the  time  of  the 
provisional  assignees,  though  two  terms  had  elapsed  since  the  return  of 
the  writ,  the  cause  of  action  being  substantially  the  same.{/<)  In  an  action 
for  money  lost  by  stock-jobbing,  on  the  statute  7  Geo.  II.  c.  8,  tlie  court 
of  Common  Pleas  permitted  the  declaration  to  be  amended,  as  between  the 
plaintiff  and  defendant,  l)y  changing  it  from  assumpsit  to  debt  :{i)  But 
where  the  plaintiff  having  sued  out  process  in  debt,  declared  in  case,  by 
Avhich  the  bail  were  discharged,  that  the  court  refused  to  amend  the  decla- 
ration, by  changing  it  from  case  to  deht.{k)  And  in  an  action  of  debt,  to 
recover  penalties  against  a  sheriff's  officer  for  extortion,  on  the  statute  32 
Geo.  II.  c.  28,  §  12,  that  court  will  not  allow  the  declaration  to  be 
amended,  by  adding  new  counts  on  the  statute  23  Hen  Yl.  c.  O.(^) 

*In  a  real  action,  it  is  not  of  course  to  amend  the  declaration 
or  count,  in  the  Common  Ple.as  ;  but  the  demandant  ought  to  make  [  *609  ] 
out  a  case  by  affidavit  :{aa)  And  the  court  refused  to  allow  the  de- 

(a)  R.  M.  10  Geo.  II.  rer/.  2  in  notis,  K.  B.     1  Wils.  149.     Saj".  Rep.  97,  151,  234. 
(6)  Sav.  Rep.  234. 

(c)  2  Str.  8'JO.     Fitzgib.  193.     1  Barnard,  K.  B.  408,  418,  S.  C.     1  Ken.  141. 

(d)  1  Wils.  149.     Sav.  Rep.  235,  6;  and  sec  Barnes,  488. 

(e)  Cas.  Pr.  C.  P.  isl  ;  and  see  Barnes,  19. 

(/)  2  Marsh,  GO,  per  Gibbs,  Ch.  J. ;  and  sec  G  Moore,  490. 

\g)  6  Taunt.  300.     1  Marsh.  609,  S.  C. 

(h)  6  Taunt.  358.     2  Marsh.  59,  S.  C. ;  and  see  6  Moore,  490. 

(t)  6  Taunt.  419.     2  Marsh.  124,  S.  C. ;  and  see  6  Taunt.  422.     2  Marsh.  125,  (a). 

(k)  C  Taunt.  483.     2  Marsh.  185,  S.  C.  (/)  5  Moore,  330. 

{an)  3  Bos.  &  Pul.  45G. 

Vol.  I.— 44 


699 


OF  AMENDMENT. 


mandant  in  a  writ  of  right  to  amend  the  mistake  of  a  christian  name  in  the 
count,  or  to  discontinue  the  suit,  though  an  affidavit  accounting  for  the  mis- 
take was  produced. (S)  In  a  subsequent  case,  they  refused  to  permit  the 
count  in  a  writ  of  right  to  be  amended,  by  introducing  an  additional  step  in 
the  descent ;  though  it  was  sworn  that  the  mistake  had  arisen  from  the  de- 
mandant having  been  misinformed  in  the  country,  where  inquiry  had  been 
made,  respecting  the  title,  and  that  the  demandant  would  be  barred,  unless 
the  amendment  were  allowed  :[e)  And  amendments  are  so  little  favoured  in 
a  writ  of  right,  that  after  an  amendment  of  the  count  had  been  made  under 
a  judge's  order,  the  court  discharged  the  order  for  making  it.[d)  So,  they 
would  not  allow  a  writ  of  summoyis  to  be  quashed,  which  had  been  irregu- 
larly executed. (ee)  And  an  amendment  of  the  disseisor's  name  was  refused, 
in  a  writ  of  entry  sur  disseisin  en  le  post.[f)  But  a  declaration  on  a  writ 
of  partition,  and  the  sheriff's  return,  were  amended,  by  striking  out  an 
erroneous  description  of  the  quality  of  the  estates  conveyed  to  the  different 
parties.  (^)  And  the  demandant  was  allowed  to  withdraw  a  demurrer  and 
reply  de  novo,  in  a  writ  of  formedon,  upon  showing  good  ground  by 
affidavit.  (7i) 

Fines  and  recoveries,  being  considered  as  common  assurances,  the  court 
of  Common  Pleas  w^ill  amend  them,  when  they  have  sufficient  authority,  so 
as  to  effectuate  the  intention  of  the  parties.  The  ground  upon  which  the 
court  proceeds,  in  making  these  amendments,  is  the  statute  8  Hen.  VI.  c. 
12,  which  authorises  them  to  amend  the  misprision  of  the  clerk  ;  and  as  the 
pj'ceeipe  in  the  cursitor's  instruction  for  an  original  writ,  so  a  deed  to  lead 
or  declare  the  uses  is  considered  as  his  instruction  for  a  fine  or  recovery. (i) 
By  the  above  statute,  a  mistake  in  the  form,(^)  teste,[l)  or  return, (m)  of  a 
writ  of  covenant  for  levying  a  fine,  or  writ  of  entry  for  suffering  a  reco- 
very,(w)  may  be  amended  by  the  court,  where  the  mistake  was  occasioned 
by  the  mispi^sion  of  the  clerk,  and  there  is  something  to  amend  by  ;  but 
otherwise,  it  seems,  it  is  not  amendable,  (o) 

Fines  may  in  general  be  amended,  by  the  deed  to  lead  or  declare  the 

uses,(  j9)  in  the  names  of  the  parties, (^)  or  in  the  description  of  the 

[  "TOO  ]  premises,(r)  *t)r  of  the  place  where  they  are  situate :(«)  and,  in 

one  case,(5&)  the  court  permitted  a  fine  to  pass  as  to  all  the  conusors 

except  one,  whose  acknowledgment  had  been  taken  incorrectly,  and  whose 

interest  was  so  inconsiderable  that  the  parties  did  not  think  it  worth  while 

{h)  1  New  Rep.  C.  P.  64.  2  New  Rep.  C.  P.  429.  Ante,  679,  80;  but  see  2  Wils.  118. 
2  Blac.  Rep.  758.     3  Wils.  206,  S.  C. 

(c)   1  New  Rep.  C.  P.  233. 

id)  1  Bing.  208.     8  Moore,  42,  S.  C.  {ee)  1  Marsh.  G02. 

{/)  4  Taunt.  572.  [g)  6  Taunt.  193.     1  Marsh.  537,  S.  C. 

{h)   10  Moore,  246.     3  Bing.  1,  S.  C.  («")  Barnes,  22. 

{k)  4  Taunt.  644,  708.  *  \l)  5  Rep.  44,  5. 

(to)  Gas.  Pr.  C.  P.  127.  (/i)   5  Taunt.  259.     8  Taunt.  197. 

(o)  1  Salk.  52.     Willes,  563.     Barnes,  17,  S.  C.     2  Blac.  Rep.  1013.     8  Taunt.  104,  5. 

Ip)  4  Taunt.  257.     6  Taunt.  73.     1  Marsh.  452,  S.  C. 

Iq)  1  Marsh.  578.  6  Taunt.  586.  1  Moore,  125.  8  Taunt.  20.  1  Brod.  &  Bing.  151; 
but  see  2  Bos.  &.  Pul.  455.     8  Moore,  15,  449.     4  Bing.  104. 

(r)  Gas.  Pr.  C.  P.  10.  4  Taunt.  257,  708.  6  Taunt.  276.  1  Taunt.  79.  2  Marsh.  391, 
S.  G.     8  Taunt.  74,  335. 

[a)  Gas.  Pr.  C.  P.  10,  52,  121.  Barnes,  216,  S.  C.  Id.  24.  3  WHs.  58.  3  Taunt.  396. 
6  Taunt.  73.  1  Marsh.  452,  S.  C.  Id.  468.  6  Taunt.  162.  1  Marsh.  519,  S.  G.  7  Taunt. 
79.  2  Marsh.  391,  S.  G.  8  Taunt.  87.  /(/.  692.  3  Moore,  22,  S.  G.  4  Moore,  170.  8  Moore, 
103,  334.     10  Moore,  109. 

{hb)  5  Taunt.  249. 


OF  AMENDMENT.  700 

to  have  another  fine.  So,  the  court  allowed  the  warranty  in  a  fine  to  be 
amended,  by  altering  it  from  a  warranty  by  tlic  husband  and  wife,  and  the 
heirs  of  the  husband,  to  a  warranty  by  the  husband  and  wife,  and  the  heirs 
of  the  ivife.{c)  But  where  there  was  no  deed  to  declare  the  uses,  they 
would  not  permit  an  alteration  to  be  made  in  the  christian((^)  or  surnames(<j) 
of  the  parties  :  And  if  the  name  of  a  party  be  written  on  an  erasure,  this, 
being  a  suspicious  circumstance,  must  be  explaini'd  by  affidavit,  Ijcfore  the 
amendment  can  be  made  ',{jf)  although  the  party  had  signed  his  right  name 
at  the  foot  of  the  deed.(^</)  Where  the  deed  was  general,  and  the  intent 
only  proved  by  affidavit,  the  court  would  not  allow  the  number  of  acres 
inserted  in  a  fine  to  be  increased.(/J<)  So,  where  a  fine  was  levied,  of 
tliirty  acres  of  land,  tivclve  acres  of  meadow,  and  tiventy-five  acres  of  pasture, 
and  in  the  deed  to  lead  the  uses,  the  estate  was  described  as  consisting  of 
thirtij-five  acres  in  the  whole,  the  court  refused  to  amend  tlie  fine,  by  in- 
creasing the  quantity  of  each  species  of  land,  so  as  to  make  each  cover  the 
whole  quantity  intended  to  be  conveyed. (e)  And  where  a  mistake  having 
been  made  in  the  concord  of  a  fine,  in  the  number  of  messuages  to  be  con- 
veyed, the  writ  of  covenant  was  altered  in  conformity  thereto,  but  was 
afterwards  restored  to  its  original  form ;  the  court  would  not  amend  the" 
concord  by  the  writ  of  covenant  so  altered,  but  left  the  party  to  his  rcmctly 
by  a  new  caption,  or  by  re-acknowledging  the  concord. (/c)  So,  if  there  be 
two  prcecipes  to  a  fine,  and  the  premises  be  described  in  the  one  as  manors, 
tithes  and  tenements,  and  in  the  other  as  tenements  only,  the  court  will  not 
allow  the  fine  to  pass.(/)  But  a  fine,  with  a  double  operation,  was  amended, 
by  striking  out  lands  in  reversion. (wi) 

The  court  in  one  case  permitted  the  name  of  a  parish  to  be  inserted  in  a 
fine,  according  to  the  deed  to  lead  the  uses,  although,  on  account  of  the 
length  of  time  which  had  clasped  since  the  date  of  the  deed,  no  one  could 
swear  that  the  parcels  lying  in  that  parish  were  intended  to  pass  ;(w)  and  in 
another,  the  fine  was  amended,  by  inserting  a  parish  different  from  that 
which  was  named  in  the  deed  to  lead  the  uses,  it  being  ccrtiiin  by  the  deed, 
which  specified  the  quantities  and  occupiers,  that  the  land  was 
*intendcd  to  pass.(a)  And  a  fine  may  be  amended,  by  substi-  [  *701  ] 
tuting  one  county  for  another,  if  it  appear  that  the  lands  intended 
to  pass  are  situate  in  the  same  parish,  Avhich  runs  into  both  counties. (5)  But 
in  general  an  amendment  cannot  be  made,  by  transposing  parishes  from  one 
county  to  another. (c)  And  where  a  fine  comprised  only  lands  lying 
in  the  parishes  of  S.  and  S.,  within  a  larger  district,  the  deed  so  describ- 
ing the  lands,  which  were  in  truth  within  the  parish^of  F.  in  the  same 
district,  the  court  refused  to  amend  the  fine,  by  insertmg  also  the  parish 
of  ¥.{d) 

(c)  3  Moore,  329.     1  Brod.  &  Bing.  G8,  S.  C;  but  sec  8  Taunt.  87. 

(d)  2  Blac.  Rep.  816.     4  Taunt.  22G.  (c)  2  Bos.  &  Bui.  455. 
(/)  3  Moore,  23.    8  Taunt.  003,  S.  C.    1  Brod.  &  Bing.  15.          (ffff)  3  Moore,  241. 
(hk)  2  Blac.  Rep.  1202;  and  see  1  IT.  Blac.  T3. 

(i)  6  Taunt.  58.     1  Marsh.  44G,  S.  C. ;  and  sec  3  Moore,  TO.     5  Moore,  94.     C  Moore,  50. 
Post,  703,  4. 

(k)  6  Taunt.  1.     1  Marsh.  406,  S.  C.  (0  3  Moore,  210. 

(m)  5  Taunt.  031.  («)  2  Taunt.  1. 

(a)  5  Taunt.  207.     1  Marsh.  23,  S.  C;  and  sec  5  Taunt.  303.     1  Marsh.  532.     9  Moore, 
195.     2  Bing.  93,  S.  C.     9  Moore,  740.     2  Bing.  380,  S.  C. 

(b)  8  Taunt.  87.     1  Moore,  530,  S.  C. 

(c)  4  Taunt.  708 ;  and  see  3  Taunt.  418 ;  and  the  other  cases  referred  to  in  8  Taunt.  88. 
1  Moore,  530,  S.  C.  accord. 

(d)  0  Taunt.  284. 


701 


OF  AMENDMENT. 


A  fine  may  also  be  amended,  where  there  has  been  a  mistake  in  the  entry 
of  the  king's  silver,(e)  or  of  the  proclamations :(/)  And  the  concord  of  a 
fine  being  lost,  before  it  had  passed  the  custos  hrevium  office,  the  court 
permitted  a  new  concord  and  acknowledgment  to  be  prepared,  and  the  fine 
to  be  perfected.(^)  So,  a  fine  was  allowed  to  pass,  by  a  copy  of  the|)rflpc^j^e 
and  concord  left  with  the  chief  justice,  and  signed  by  the  parties,  the  origi- 
nal having  been  lost.(/i)  But  although  the  court  will  amend  a  fine  in  mat- 
ters of  form,  yet  when  it  is  recorded  of  one  term,  they  will  not  alter  it,  and 
make  it  a  fine  of  anotlier.(M)  A  fine  cannot  in  general  be  amended,  without 
an  affidavit  connecting  it  with  the  deed  produced  to  warrant  the  amend- 
ment -.{kk)  And  the  affidavit  must  state  that  the  possession  has  been  in  con- 
formity to,  and  followed  the  deed  to  lead  or  declare  the  uses,  since  the  fine 
was  levied.(/Z) 

Recoveries  in  like  manner  may  be  amended,  by  the  deed  to  lead  or  declare 
the  uses,  in  striking  out,(w)  altering,(w)  adding  to,(o)  or  transposing(j!?) 
the  names  of  the  parties  :  And  where  a  recovery  was  intended  to  be  suffered 
by  A.  B.  and  C.  his  wife,  but  the  name  of  the  wife  was  totally  omitted,  the 
court  ordered  it  to  be  amended. ((/)  So,  a  recovery  may  be  amended  in 
fieri,  by  substituting  a  new  commissioner  for  the  demandant  in  the  dedimus 
potestatem,  and  retaking  the  acknowledgment  :(r)  But  the  court  would 
not  amend  a  recovery,  by  inserting  the  name  of  the  husband  of  a  vouchee  ;(s) 
nor  by  substituting  the  name  of  one  joint-tenant  to  the  j^rcccipe,  for  that  of 
his  companion.(^)  And  a  recovery  cannot  be  amended,  by  insert- 
[  *702  ]  ing  an  additional  christian  name  of  the  vouchee,  if  he  has  *always 
been  known,  and  signed  the  deed  to  make  a  tenant  to  the  p?'ceci^pe, 
without  such  name. (a) 

A  warrant  of  attorney  in  a  recovery  was  amended  in  one  case,  by  insert- 
ing an  additional  christian  name  of  the  vouchee  ;{b)  and  in  another,  by  sub- 
stituting the  name  of  the  attorney  for  that  of  the  vouchee,  which  had  been 
inserted  by  mistake  instead  of  the  attorney's. (c)  But  it  is  now  settled,  that 
the  court  will  not  amend  a  warrant  of  attorney,  which  is  the  act  of  the 
party  :{d)  and  therefore  they  refused  to  amend  a  recovery,  by  adding  the 
name  of  one  of  the  parties,  which  had  been  omitted  in  the  warrant  of  attor- 
ney ;  nor  would  they  suffer  the  recovery  to  pass  with  this  defect.(e)  So, 
where  the  prcecijpe,  in  the  vouchee's  warrant  of  attorney  in  a  recovery, 
rightly  described  the  parties  to  the  plea,  but  the.  body  of  the  warrant  of  at- 
torney expressed  that  the  vouchee  appointed  his  attorney,  to  gain  or  lose  in 
a  plea  of  land  against  the  tenant,  instead  of  the  demandant,  the  court  re- 
fused either  to  amend  the  warrant  of  attorney,  or  to  suffer  the  recovery  to 

(e)  5  Rep.  43.  (/)  Id.  44. 

{ff)  4  Taunt.  195.  (h)  6  Taunt.  231.     1  Marsh.  553,  S.  C. 

(«')  2  Blac.  Rep.  788;  and  see  Vin.  Abr.  tit.  Fhie  B.  b.  2.     Wilson  on  Fines,  53. 

(kk)  6  Taunt.  432.  (U)  6  Moore,  259. 

(m)  3  Taunt.  59.     5  Taunt.  73.     7  Taunt.  697. 

(w)  Cas.  Pr.  C.  P.  127.  Pigott,  170,  71.  2  Blac.  Rep.  1230.  8  Taunt.  226,  556.  4  Moore, 
514.     2  Brod.  &  Bing.  98,  S.  0. 

(o)  8  Taunt.  27;  but  see  3  Moore,  577. 

(p)  Barnes,  24.  2  Taunt.  222.  4  Moore,  514.  2  Brod.  &  Bing.  98,  S.  C.  But  the  court 
"will  not  allow  a  recovery  to  be  amended,  by  transposing  the  names  of  the  demandant  and 
tenant,  unless  the  documents  relative  to  its  being  suffered  be  produced.     6  Moore,  46. 

(q)  Cas.  Pr.  C.  P.  127.  (r)  5  Taunt.  747. 

(s)  1  Taunt.  478.  (t)  4  Taunt.  101;  and  see  3  Moore,  577. 

(a)  8  Taunt.  045.     2  Moore,  721,  S.  C.  (b)  4  Taunt.  196. 

(c)  Id.  98.  (d)  6  Taunt.  373. 

(e)  Id.  652.     2  Marsh.  328,  S.  C. 


OF  AMENDMENT.  702 

pass,  and  construe  the  latter  clause  as  repugnant  and  inoperative.(/)  So, 
they  would  not  direct  their  officer  to  pass  a  recovery,  where  their  was  a 
mistake  in  the  form  of  the  writ  of  entry,  to  which  the  warrant  of  attorney 
related,  by  making  it  a  demand,  instead  of  ^ 2)rcccipe ;[(j)  nor  would  they 
permit  the  same  mistake  to  be  rectified,  by  amending  tlie  warrant  of  attor- 
ney :(/i)  And  where  a  part  of  the  premises  named  in  the  deed  to  lead  the 
uses  had  been  omitted  in  the  copy  of  the  prcecipCy  which  precedes  the  war- 
rant of  attorney,  the  court  refused  to  permit  an  amendment,  by  inserting  the 
words  omitted ;  saying  they  could  not  apply  the  warrant  of  attorney  to 
premises  not  named  in  the  pra'cipe.{i)  The  prcucipe  for  the  writ  of  entry 
however,  at  the  head  of  the  warrant  of  attorney,  is  not  so  conclusively  a  part 
of  it,  but  that  it  may  be  amended,  after  execution,  by  the  writ  of  entry  :(A;) 
And  where  the  vouchee's  warrant  of  attorney  in  a  recovery  omitted  to  ex- 
press, in  the  body  of  the  warrant,  against  whom  the  plea  of  land  was,  which 
appeared  by  the  prcecipe,  the  court,  though  they  would  not  amend  the  war- 
rant of  attorney,  held  that  the  authority  must  refer  to  the  plea  as  described 
by  the  prceeipe,  and  permitted  the  recovery  to  pass.(Z)  So,  a  recovery  was 
permitted  to  pass,  where  the  warrant  of  attorney  did  not  state  between  whom 
the  plea  of  land  was ;  it  being  evident  from  the  joracz/^e,  for  what  purpose 
the  attorneys  were  appointed  -.{in)  and  also,  where  the  warrant  of  attorney 
was  "in  a  plea  of  land,"  omitting  the  words  "to  gain  or  lose."(m)  And 
where,  in  the  warrant  of  attorney,  the  words,  to  gain  or  lose 
*in  a  plea  of  trespass,  were  inserted  by  mistake,  instead  of  the  [  *703  ] 
usual  words,  to  gain  or  lose  in  a  plea  of  land,  the  court  permitted 
the  recovery  to  pass  ;  as  the  word  trespass  might  be  rejected  as  surplusage. (a) 
So,  a  recovery  was  allowed  to  pass,  although  the  Avords  "their  attorneys," 
were  omitted  in  the  warrant  of  attorney  given  by  two  vouchees. (J)  And 
if  a  wrong  surname  of  the  demandant  be  inserted  by  mistake  in  the  war- 
rant of  attorney  and  subsequent  instruments,  the  court  will  allow  the  re- 
covery to  pass,  on  the  production  of  a  new  warrant  of  attorney,  rectifying 
such  mistake,  and  on  depositing  the  other  instruments  with  the  officer  in 
the  mean  time.(c) 

A  recovery  may  also  be  amended,  by  the  deed  to  lead  or  declare  the 
uses  in  the  description  of  the  premises,  or  of  the  place  where  they  are 
situate. ((Z)  With  regard  to  the  former,  it  has  been  holden,  that  a  recovery 
may  be  amended,  by  inserting  other  premises  not  mentioned  therein, 
according  to  the  deed  to  lead  or  declare  the  uses,  on  payment  of  an  addi- 
tional fine  at  the  alienation  office  :{e)  and  it  has  been  amended,  by  increasing 

(/•)   1  Brod.  &  Bing.  92.     3  Moore,  495,  S.  C. 

{g)  8  Taiiut.  167.  (/*)  Id.  1G8.  («)  3  Bing.  446. 

\k)  7  Taunt.  434.  1  Jfoorc,  130,  S.  C.  In  the  printed  reports  of  this  case  the  prceeipe 
for  the  writ  of  entry  is  inaj)propriateIy  called  the  caption  of  the  warrant  of  attorney.  3 
Moore,  499,  n.  1  Brod.  &  Bing.  96,  S.  C;  and  see  7  Moore,  257.  1  Bing.  22,  S.  C.  7  Moore, 
372.     1  Bing.  72,  S.  C. 

{I)  6  Taunt.  373;  and  see  7  Taunt.  435,  (a).  (»«)  8  Taunt.  164. 

(rt)  8  Moore,  339.     1  Bing.  343,  S.  C.  (6)  8  .Moore,  51.    1  Bing.  212,  S.  C. 

(c)  3  Moore,  673. 

\d)  Cas.  Pr.  C.  P.  9,  10,  17,  30.  Com.  Rep.  386,  S.  C.  Cas.  Pr.  C.  P.  85.  Pr.  Reg.  371, 
S.  C.  Pigott,  171,  2.  Barnes,  21.  2  Blac.  Rep.  747.  3  Wils.  154,  S.  C.  2  BKac.  Rep. 
1065.  1  H.  Blac.  73.  2  Bos.  &  Pul.  560,  578.  4  Taunt.  249,  738,  749.  5  Taunt.  624,  661. 
6  Taunt.  177.  1  Marsh.  532,  S.  C.  8  Taunt.  86.  8  Moore,  324.  1  Bing.  317,  S.  C;  but 
see  a  Moore,  520.     1  Bing.  425,  S.  C.     10  .Moore,  109. 

(r)  1  Bos.  &  Pul.  137.  2  Bos.  &  Pul.  578,  .580,  [a).  1  Taunt.  257,  355,  484.  3  Taunt. 
74,  408,  462.  4  Taunt.  155,  226,  366,  734,  737,  8.  5  Taunt.  748,  811.  8  Taunt.  303.  2 
Moore,  299,  S.  C;  but  see  5  Taunt.  616.     6  Taunt.  145. 


Y03  <^F  AMENDMENT. 

the  quantities  of  specific  closes,  described  in  the  deed  as  being  less  than 
they  really  were.(/)  But  no  amendment  can  be  made  in  the  description 
of  the  premises,  or  of  the  parish  in  which  they  are  situate,((/)  where  it  is 
not  warranted  by  the  deed  to  lead  or  declare  the  uses  ;(/i)  nor  unless  the 
true  number  of  messuages,  &c.  be  distinctly  and  precisely  sworn  to  ;{i)  nor 
without  proof  of  seisin  of  the  vouchee  of  an  estate  tail  therein,  at  the  time 
of  the  recovery,  and  that  it  was  intended  they  should  pass. (A;)  And  where 
a  recovery  o^ffty  years  old  was  found  by  mistake  to  comprise  only  two 
messuages  and  twenty  acres  of  land,  instead  of  six  messuages  and  three 
hundred  acres  of  land,  the  blunder  being  wholly  unexplained  and  unac- 
counted for,  the  court  refused  to  permit  an  amendment,  by  substituting  the 
larger  quantity.  (/^)  If  inarsh  land  be  described  as  land  generally,  in  a 
recovery,  it  may  be  amended,  by  inserting  the  word  "  marsh"  before 
"land,"  on  an  affidavit  stating  how  the  premises  had  been  occupied  since 
the  recovery  was  suffered. (wi?^)  So,  a  recovery  of  land  may  be  amended, 
by  inserting  the  words  "  meadow  and  pasture"  before  land  ;  although  it 
was  described  as  laud  generally  in  the  recovery,  and  deed  to  lead  the 

uses.(w)  But  where  wood  land  had  been  converted  into  arable, 
[  *704  ]  the  court  would  not  allow  an  *amendment  by  increasing  the 

quantity  of  the  latter ;  as  the  land  would  have  passed  under  either 
description. (rt)  So,  the  court  would  not  permit  a  recovery  to  be  amended, 
by  increasing  the  quantity  of  land,  where  the  deed  to  lead  the  uses  con- 
tained sufficient  terms  to  show  that  it  was  intended  to  pass  :  nor  was  it 
deemed  necessary  that  the  exact  admeasurement  should  be  inserted  in  such 
deed.(6)  And  as  meadow  will  pass  in  a  recovery  under  the  word  "  land," 
the  court  it  seems  will  not  now  amend  a  recovery,  by  adding  the  word 
^^meadoiv.'\c)  A  recovery  maybe  amended,  by  inserting  a  rent  charge,((;^) 
fee  farm  rent,(g)  or  tithes,(^)  where  it  appears  that  they  were  intended  to 
pass,  and  the  words  of  the  deed  are  sufficiently  comprehensive  to  include 
them  ;  or,  by  inserting  the  words  "the  advowson  of,"  before  those  of  "the 
rectory  of  the  church  of  H.,"(^^)  or,  of  "  the  vicarage, "(A/i)  &c.  ;  or  by  sub- 
stituting the  words  "  advowson  of  the  church,"  for  the  word  rectory  ;[ii)  or, 
the  words  "  perpetual  advowsons,"  for  those  of  "  tithes  to  rectories  belong- 
ing and  appertaining  \\kk)  or,  by  describing  tithes,  as  arising  out  of  a 
borough  and  parish,  instead  of  a  rectory.  (/)  But  the  court  refused  to  amend 
a  recovery,  suffered  many  years  before,  by  inserting  an  advowson,  although 
it  was  omitted  by  mistake,  and  had  formed  part  of  the  estate  since  the  re- 
covery was  suffered  ;  without  an  affidavit,  stating  how  the  presentations 
had  gone  in  the  mean  time.(??i)  So,  an  amendment  was  refused,  by  striking 
out  the  aggregate  sum  of  several  rents,  and  inserting  the  different  rents  or 
sums  of  which  it  was  composed,  (/m)  And  the  court  will  not  amend  a  reco- 


15 


4  Taunt.  734.     8  Ttiimt.  74.     2  Moore,  163.     9  Moore,  591 ;  but  see  5  Taunt.  616. 
8  Moore,  520.     1  Bing.  425,  S.  C. 

{h)  3  Bos.  &  Pul.  362.  [i)  5  Taunt.  632. 

{k)  Id.  811 ;  and  see  3  Moore,  70.     1  Brod.  &  Bing.  09. 

hi)   1  Brod.  &  Bing.  83.  {mm)  5  Moore,  98. 

(n)  7  Moore,  257.     1  Bing.  22,  S.  C. 

\a)  5  Moore,  94.  {b)  6  Moore,  50.  (c)  4  Bing.  90. 

{d)   1  Taunt.  484.  {e)  5  Jloore,  474. 

•     (/)  2  Marsh.  264.    7  Taunt.  341,  352.    1  Moore,  95,  S.  C.    8  Taunt.  303.    2  Moore,  299, 
S.  C.    5  Moore,  94,  5.    6  Moore,  224. 

{gg)  8  Moore,  586.  {hh)   10  Moore,  251. 

iii)  8  Taunt.  333.    6  Moore,  53.  {kk)  4  Moore,  49. 

{l)  Id.  170.  (wt)  7  Moore,  208.    3  Bing.  176.  "  {nn)  2  Marsh.  264. 


OF  AMENDMENT.  704 

very,  by  adding  the  tithes  of  tlic  premises,  under  the  words  hereditaments, 
where  the  word  does  not  occur  in  the  operative  part  of  the  deed;(o)  nor, 
by  striking  out  a  ^^ portion  of  tithes,"  and  substituting  ^^  all  the  tithes" 
arising  from  the  lands  conveyed. (j;) 

With  regard  to  the  situation  of  the  premises,  recoveries  have  been 
amended,  by  substituting  a  hamlet  for  a  parish,(ry)  or  part  of  a  parish  which 
lay  within  a  liberty,  for  other  part  of  a  parish  which  lay  within  a  borough, 
in  the  same  county  ;(r)  and  by  inserting  a  parish  named  in  the  deed  to  lead 
or  declare  the  uses,  after  a  considerable  lapse  of  time.(«)  So,  a  recovery  of 
the  manor  of  A.  and  eight  messuages  in  A.  was  amended,  by  adding  the 
names  of  the  parishes  in  which  the  premises  were  partly  situate  ;  those 
parishes  being  comprised  in  the  manor  of  A.(^)  And  a  recovery  was 
amended  by  inserting  a  parish  not  named  in  the  deed  to  lead  the  uses  ; 
the  lands  intended  to  pass  having  been  specified  therein,  as  to  the 
*numl)er  of  acres,  as  well  as  the  names  of  the  vendor  and  occu-  [  *705  ] 
pier,  at  tlie  time  the  recovery  was  suffered.(rt)  So,  where  lands  in 
two  parishes  were  conveyed  as  lying  in  the  parish  of  Gr.  which  was  not  the 
true  name  of  either,  nor  of  any  parish,  but  was  an  addition  equally  applicable 
to  both,  the  court  permitted  both  parishes  to  be  added  to  an  old  recover jAb) 
And  where  a  deed  to  make  a  tenant  to  the  prcecipe  comprised  thithes  in  two 
parishes,  and  an  amendment  had  been  improperly  introduced  into  the  reco- 
very, which  confined  its  operation  to  one  parish  only,  the  court  allowed  the 
words  of  such  amendment  to  be  transposed,  so  as  to  give  effect  to  the  deed, 
and  comprise  both  parishes.(c)  So,  a  recovery  may  be  amended,  by  substi- 
tuting the  parish  of  A.  for  B.  if  the  deed  to  lead  the  uses  comprehend  all 
the  estates  of  the  demandant,  situate  in  the  county  where  such  parishes  lie.('7) 
So,  a  recovery  has  been  amended,  by  altering  the  name  of  a  parish  misnamed 
in  the  deed,  making  the  tenant  to  the  prcecipe,  as  well  as  in  the  recovery, 
upon  an  affidavit  that  the  vouchee  was  seised  of  the  land  in  question  in  one 
parish,  and  that  he  was  seised  of  no  land  whatever  in  the  other. (<?)  And  the 
recovery  was  amended  in  a  modern  case,  by  inserting  the  county  of  the  town 
of  S.  or  the  county  of  S.  the  court  considering  it  merely  as  a  clerical  mis- 
prision. (/)  But  where  the  situation  of  the  premises  is  mistaken  in  the  deed 
to  lead  or  declare  the  uses,  it  cannot  be  amended  by  the  court :( r/)  And  they 
would  not  permit  a  recovery  to  be  amended,  by  inserting  a  parish  not  named 
in  the  deed  to  make  a  tenant  to  the  p)rcecip)e,  although  it  appeared  that  the 
parish  was  named  in  the  instructions  given  for  preparing  that  deed,  and  that 
the  lands  were  parcel  of  an  estate  which  was  intended  to  pass :  for  by  the 
omission  in  the  deed,  there  could  be  no  good  tenant  to  the  pra'ripe.[]i)  So, 
the  court  refused  to  amend  a  recovery,  by  adding  two  parishes  in  unqualified 


{; 


(o)   2  Marsh.  194;  and  see  4  Moore,  604.     2  Brod.  k  Bin?.  105,  S.  C. 

\p)  6  Taunt.  489.    2  Marsh.  195,  S.  C. ;  but  see  2  Marsh.  264. 

\q)   1  Moore,  131.  (/•)  3  Taunt.  396. 

Is)  5  Taunt.  2  ;  and  see  3  Taunt.  408.    8  Taunt.  101,  262.    3  Moore,  326. 

\t)  2  Marsh.  330. 

(a)  9  Moore,  195.  2  Bing.  93,  S.  C. ;  and  sec  5  Taunt.  207.  1  Marsh.  23,  S.  C.  0  Moore, 
■740.     Ante,  700,  701. 

(h)  4  Taunt.  737.     5  Taunt.  024. 

(c)  7  Taunt.  352.      1  Moore,  05,  S.  C.  ((?)  2  Moore,  237. 

(c)  5  Taunt.  303  ;  and  see  8  Taunt.  244 ;  but  see  Id.  262. 

(/■)  4  Taunt.  855 ;  and  see  6  Moore,  259,  Id.  (a) ;  but  see  4  Moore  &  P.  178.  4  Bing.  426, 
S.  C. 

(f/)  6  Taunt.  145. 

(A)  2  Taunt.  96;  but  see  9  Moore,  105.     2  Bing.  93,  S.  C.    Ante,  700,  701,  704,  5. 


"jQg  OF  AMENDMENT. 

terms,  wliere  the  deed  enumerated  several  manors,  and  a  great  extend  of  lands 
in  many  parishes,  and  the  purpose  of  the  amendment  was  only  to  include 
certain  parcels  of  one  manor,  which  lay  in  the  omitted  parishes. (^)  And 
they  will  not  amend  a  recovery,  by  inserting  more  parishes,  unless  it  be 
clear  that  the  land  in  those  parishes  passed  by  the  deed  i^k)  nor  unless  it 
appear  to  be  absolutely  necessary. (/)  So,  where  a  recovery  was  suffered  in 
the  city  of  Litchfield,  which  is  a  county  of  itself,  where  the  vouchee  had 
lands  upon  which  it  might  operate,  the  court  would  not  suffer  it  to  be 
amended,  by  striking  out  the  city  of  Litchfield,  and  inserting  the  county 
of  Stafford,  with  other  consequential  amendments,  and  also  by 
[  *706  ]  *inserting  the  name  of  a  vill,  after  another  mentioned  in  the  re- 
covery -.[aa)  nor  can  a  recovery  be  amended,  so  as  to  make  it  of 
premises  in  one  of  two  counties,  in  the  alternative  ',{hh)  nor  by  changing  it 
from  one  county  to  another.(6'(?)  So,  where  a  vouchee  had,  in  his  instructions 
to  suffer  a  recovery,  and  in  the  deed  to  lead  the  uses  prepared  in  pursuance 
thereof,  misdescribed  the  parish  in  which  certain  closes  were  situate,  though 
they  were  described  in  the  deed  with  truth  and  certainly  in  other  respects, 
the  court  refused  to  substitute  the  parish  in  which  the  lands  lay,  for  the 
parish  named  in  the  deed  and  recovery. (c?) 

The  return  of  the  Avrit  of  entry  may  be  amended,  by  adapting  it  to  the 
time  of  taking  the  acknowledgment  :(e)  And  the  return  of  a  writ  of  sum- 
mons was  altered,  by  inserting  a  subsequent  return  day,  wdiere  there  were 
several  vouchees  residing  in  different  counties,  and  one  of  them  could  not 
sign  it  until  a  day  after  it  was  made  returnable. (/)  So  the  court,  in  order 
to  give  effect  to  a  recovery,  allowed  the  returns  of  the  writ  of  entry  and 
summons  to  be  abridged  to  three  returns  inclusive,  instead  of  fiour,  as  re- 
quired by  the  statute  24  Geo.  II.  c.  48,  §  8.  1  Moore  &  P.  136.  4  Bing. 
425,  S.  C.  But  the  court  would  not  enlarge  the  return  of  a  writ  of  sum- 
mons, as  to  make  a  term  intervene  between  the  teste  and  return. (^)  The 
judgment  on  a  common  recovery  has  been  amended,  by  striking  out  the 
word  adjudged,  and  inserting  instead  thereof,  the  word  considered:[h)  and 
amendments  have  been  made  in  the  award  and  return  of  the  writ  of 
seisin.(M)  But,  by  the  statute  23  Eliz.  c.  3,  §  10,  "none  of  the  fines  or 
recoveries  theretofore  levied,  passed  or  suffered,  which  shall  be  exemplified 
under  the  great  seal,  according  to  the  form  of  that  act,  shall  after  such 
exemplification  had,  be  in  any  wise  amended." 

The  court,  we  have  seen,(M)  will  not  entertain  a  motion  on  the  last  day 
of  term,  for  the  amendment  of  fines  or  recoveries,  or  any  of  the  proceedings 
therein,(/Z)  or  on  any  svibject  relating  thereto. (m)  And  when  a  fine  or  reco- 
very is  moved  to  be  amended,  the  court  will  always  require  an  affidavit  to 
be  made,  that  the  possession  has  been  in  conformity  to,  and  followed  the 
deed  to  lead  or  declare  the  uses,  since  such  fine  or  recovery  was  levied  or 
suffered  :(n)  And  a  recovery  was  not  permitted  to  be  amended,  on  an  un- 

{i)  7  Taunt.  177.  {k)  4  Taunt.  738. 

[l)  8  Taunt.  683.     3  Moore,  20,  S.  C. 

(aa)  2  Blac.  Rep.  874.  (hb)   1  Taunt.  538. 

{cc)  3  Taunt.  418 ;  and  see  4  Taunt.  708 ;  but  see  8  Taunt.  87.     1  Moore,  530,  S.  C. 

(d)  6  Taunt.  145.  (c)  5  Taunt.  259;  and  see  8  Taunt.  197. 

(/■)  7  Moore,  269. 

(g)  2  Blac.  Rep.  1201,  1223,  4;  and  see  8  Taunt.  104,  5.  (/»)  Barnes,  20,  22. 

\ii)  Oas.  Pr.  C.  P.  127.     Barnes,  23.     2  Wils.  2.     6  Taunt.  195.     1  Marsh.  538,  S.  C. 

\kk)  Ante,  499. 

\ll)  R.  H.  60,  Geo.  III.  &  1  Geo.  IV.  C.  P.    4  Moore,  320.     2  Brod.  &  Bing.  122. 

{m)  4  Moore,  113.     1  Brod.  &  Bing.  468,  S.  C.  {n)  6  Moore,  259. 


OF  AMENDMENT.  706 

qualified  uffidavlt  that  tlie  possession  had  gone  along  with  the  title,  for  a 
period  long  before  the  deponent's  knowledge,  -without  stating  the  grounds 
of  his  belief.(o)  On  applying  to  amend  a  recovery,  it  is  not  necessary  to  show 
a  title  to  the  court,  further  back  than  a  seisin  in  tail  of  the  vouchee.(j^) 
And  it  is  a  rule,  that  the  material  part  of  the  deed,  which  is  to  authorize 
the  amendment,  shall  be  read  to  the  court  by  one  of  the  sergeants 
at  law,  *or  by  the  officer  of  the  court,  and  not  by  the  attorney  for  [  *707  ] 
the  amendment. (a)  The  court  refused  to  make  an  order,  compell- 
ing the  amendment  of  a  recovery  suffered  by  an  insolvent  debtor  :(6)  And  a 
remainder-man  in  tail  may  be  heard  to  show  cause  against  the  amendment 
of  a  recovery. (e)  When  the  deed  is  lost,  a  recovery  cannot  be  amended  by 
an  attested  copy ;  nor  by  an  office  copy  of  the  inrolment  of  the  deed :  but 
it  may  be  amended  by  the  inrolment  itself  being  brought  into  court.(t7J) 
If  there  be  palpable  mistakes  in  a  fine  or  recovery,  through  the  neglect  of 
the  attorney,  the  court  will  order  him  to  pay  the  costs  of  its  amendment. (ee) 
Before  plea,  there  are  no  costs  payable  upon  amending  the  declaration,  in 
ordinary  cases,  except  the  costs  of  the  application ;  and  in  the  King's  Bench, 
the  declaration  may  be  amended  in  matter  of  form,  after  the  general  issue 
pleaded,  and  before  entry,  without  paying  costs,  or  giving  an  imparlance  :(/) 
But  if  the  amendment  be  in  matter  of  substance,  or  after  the  general  issue 
is  entered, (^)  or  a  special  plea  pleaded,(A)  the  plaintiff  must  pay  costs  or 
give  an  imparla,nce,  at  the  election  of  the  defendant. (i)  And  where  the 
plaintiff  gave  notice  of  trial  for  the  assizes,  and  afterwards  countermanded, 
and  then  applied  for  an  order  to  amend  the  declaration,  which  order  was 
obtained  on  the  terms  of  the  defendants  having  an  imparlance  till  the  next 
term,  the  court  of  King's  Bench  refused  to  rescind  so  much  of  the  order  as 
related  to  the  imparlancc.(Z;)  In  the  Common  Pleas,  it  is  a  rule,  that  before 
the  declaration  is  actvially  entered,  the  plaintiff  may  amend  it,  paying  costs 
or  giving  an  imparlance  at  his  own  election,  by  order  of  a  judge  of  the 
coui't,  or  prothonotary :  and  even  after  it  is  entered,  if  the  amendment  be 
but  a  small  matter,  that  doth  not  deface  the  roll,  it  is  amendable,  before 
issue  or  demurrer  entered,  by  rule  of  court,  upon  payment  of  costs,  and 
liberty  to  plead  with  a  new  or  further  imparlance. (/)  But  where  the  de- 
fendant had  demurred,  and  given  a  rule  to  join  in  demurrer,  the  court  held 
that  the  plaintiff  must  pay  costs,  on  amending  his  declaration,  and  could 
not  amend  on  giving  an  imparlance. (wi)  And  where  a  motion  was  made 
to  amend  a  declaration,  after  the  plea-roll  filed,  it  was  objected  that  the 
motion  ought  to  be  to  amend  the  roll,  and  not  the  declaration  :  and  the 
amendments  prayed  being  very  long,  and  such  as  could  not  be  made  without 
greatly  defacing  the  roll,  the  motion  was  denied;  although  it  was  con- 

(o)  7  Taunt.  GOT.  {p)  4  Taunt.  155. 

(«)  5  Taunt.  579.  {b)  8  Taunt.  105. 

(c)   7  Taunt.  352. 

Idd)  4  Taunt.  798;  and  see  5  Taunt.  579. 

\ee)  4  Moore,  171. 

(/)  R.  il.  10  Geo.  TI.  rrg.  2.  (i),  K.  B.  And  for  the  form  of  the  rule  to  amend,  in  K.  B. 
or  C.  P.  see  Append.  Chap.  XXIX.  j^H,  12. 

{<))  K.  M.  10  Geo.  II.  rcg.  2,  (6),  K.  B.  Sty.  P.  R.  20.     2  Str.  050.     1  Lil.  P.  R.  50. 

{h)  2  Str.  890.     Lofft.  155. 

(«■)  Sed  quoire:  as  it  seems,  from  R.  M.  1G54,  §  13,  K.  B.  &  §  17,  C.  P.,  that  the  election  to 
pay  costs,  or  give  an  imparlance,  is  with  the  plaintiff :  and  see  2  Keb.  120,  362.  1  Lil.  P.  R. 
58,  60,  62.  accord. 

(k)   1  Chit.  Rep.  246.     Ante,  460. 

{l)  R.  M.  1654,  g  17,  0.  P.  I  but  see  2  Str.  050,  scmb.  contra.         (;n)  Barnes,  6. 


707 


OF  AMENDMENT, 


tended  that  a  vacatur  might  he  marked  on  the  roll  filed,  or  it 
[  *708  ]  might  be  taken  off  the  file,  and  a  new  roll  of  the  *same  nmnher 

filed  in  its  place,  which  the  court  held  to  be  an  unwarrantable 
practice.(a)  It  has  been  said,  that  when  amendments  are  made  at  the 
trial,  they  are  made  Avithout  costs. (^))  But  this  must  be  understood  as  con- 
fined to  cases,  where  the  action  is  meant  to  be  defended  on  the  merits  :  For 
where  the  ground  of  defence  is  some  formal  slip  or  mistake  in  the  declara- 
tion, which  would  be  obviated  by  the  amendment,  the  plaintiff  must  pay  all 
the  costs  subsequent  to  the  declaration,  if  the  defendant  will  thereupon  pay 
the  debt  and  previous  costs  ;  or,  in  an  action  for  general  damages,  let  judg- 
ment go  by  default  ;(c)  or,  in  ejectment,  give  up  the  possession  of  the  pre- 
mises •,[d)  but  otherwise,  the  plaintiff  will  be  allowed  to  amend,  on  payment 
of  the  costs  of  the  application  merely. (t^) 

On  amending  the  declaration  in  the  King's  Bench,  after  plea  pleaded, 
the  defendant  is  at  liberty  to  plead  de  novo,  if  his  case  require  it,  and  has 
two  days  allowed  him  for  that  purpose,  after  the  amendment  made,  and 
payment  of  costs  ;(e)  and  if  a  rule  to  plead  be  entered  the  same  term  the 
amendment  is  made,  though  before  such  amendment,  it  is  sufficient ;  other- 
wise a  new  rule  to  plead  must  be  entered.(/)  But,  in  the  Common  Pleas, 
we  have  seen,  the  defendant  is  entitled  in  all  cases,  on  amending  the  decla- 
ration, to  a  new  four  day  rule  to  plead  '.[g)  And  in  that  court,  after  an 
amendment  of  a  declaration,  the  defendant  is  at  liberty  to  plead  de  novo, 
that  is,  he  may  do  so  if  he  has  occasion,  or  thinks  proper,  but  he  is  not 
obliged  to  vary  his  first  defence  :(7i)  And  as  this  liberty  is  not  incident  to 
every  amendment,  it  is  not  always  necessary  to  insert  it  in  the  judge's 
order  to  amend.  (^)  If  the  declaration,  however,  be  amended  after  issue 
delivered,  it  should  be  re-delivered  after  the  amendment  made,  and  pay- 
ment of  C0StS.(2) 

The  reason  for  not  permitting  a  new  count  to  be  added,  or  right  of  action 
alleged,  after  the  end  of  the  second  term,  is  that  the  plaintiff  is  obliged  to 
declare  within  two  terms  ;  and  a  new  count  or  right  of  action  is  considered 
as  a  new  declaration. (/?)  But  this  reason  is  not  applicable  to  pleas  or  repli- 
cations, &c.  which  may  be  amended  at  any  time,  so  long  as  they  are  in 
paper  :  Thus,  where  the  defendant  in  trespass  pleaded  two  pleas  in  Hilary 
term,  and  in  Trinity  term,  after  issue  joined,  obtained  a  rule  to  show  cause 
why  he  should  not  have  leave  to  amend  his  two  pleas,  and  to  add  a  third 
plea,  the  rule  was  made  absolute,  upon  payment  of  costs. (/)     So  where,  in 

a  plea  by  an  executor  of  a  former  judgment  recovered,  a  less  sum 
[  *709  ]  was  stated  by  mistake  than  the  judgment  was  really  *for,  the 

court  of  Common  Pleas  permitted  the  defendant  to  amend  the 
record,  by  inserting  the  real  sum  in  the  plea,  though  the  application  for 
such  amendment  was  not  made  till  a  considerable  time  after  the  record 

(a)  Barnes,  8 ;  and  see  2  Chit.  Eep.  34.    Id.  302.     1  Dowl.  &  Ryl.  173,  S.  C. 

(6)  3  Taunt.  81. 

(c)  V.  Home,  T.  7  Geo.  IV.  K.  B.  per  Bcn/lci/,  J.  (d)  Ry.  &  Mo.  380. 

(e)  R.  M.  10  Geo.  II.  reg.  2,  (b),  K.  B.  Ancientlj^,  it  seems,  the  defendant  did  not  plead 
de  novo,  after  an  amendment:  2  Salk.  5l7;  but  he  is  now  at  liberty  to  do  so,  when  the 
amendment  is  of  sucli  a  nature  as  to  occasion  any  alteration  in  the  plea,  but  not  otherwise. 

( /)  2  Salk.  517,  18  ;  520.  R.  T.  5  &  6  Geo.  II.  (b),  K.  B.  Yaies  v.  Edmonds,  T.  35  Geo. 
III.'K.  B.     8  Durnf.  &  East,  87.     2  Chit.  Rep.  332. 

(ff)  2  Blac.  Rep.  785.     Ante,  469,  475.  (h)  Barnes,  273. 

(i)  G  Taunt.  400.  (k)   1  Wils.  223. 

(l)  Id.  ibid;  and  see  Barnes,  22. 


OF  AMENDMENT.  709 

bad  been  made  up :(«)  and  the  plaintiif  in  such  case  was  allowed  to  reply 
per  fraudem.[a)  So  where,  in  covenant,  the  defendant  was  not  allowed  to 
give  a  counter-demand  in  evidence  at  the  trial,  under  a  notice  of  set-off 
delivered  with  the  plea  of  non  est  factum,  the  court  afterwards  granted  a 
rule  to  show  cause,  why  the  defendant  should  not  be  permitted  to  plead  a 
set-off,  on  payment  of  the  costs  of  the  former  trial. (i)  And,  in  a  late 
case,(c)  the  court  of  Common  Pleas  allowed  several  avowries  in  replevin 
to  be  amended,  by  altering  the  name  and  description  of  the  locus  in  quo, 
and  stating  the  holiling  to  have  been  for  a  year,  instead  of  half  a  year, 
and  also  l)y  adding  new  avowries,  varying  the  amount  of  the  rent ;  although 
issue  had  been  joined,  and  notice  of  trial  given  and  countermanded,  and 
more  than  two  terms  had  elapsed,  previously  to  the  application  for  the 
amendment.  In  like  manner,  the  plaintiff  has  been  allowed  to  amend,  by 
withdrawing  his  replication,  and  replying  de  novo,  after  a  lapse  of  many 
terms  :((Z)  And,  in  one  case,  the  plaintiff  had  leave  to  amend  his  replica- 
tion, Avhere  issue  had  been  joined  upon  it,  and  the  cause  entered  at  the 
assizes,  and  made  a  remanet  for  defect  of  jurors.(c)  But  where,  to  a  plea 
of  specialties  outstanding,  in  an  action  on  simple  contract  against  an  exe- 
cutrix, the  plaintiffs  replied  assets  ultima,  which  was  found  for  them,  but 
the  verdict  set  aside,  the  court  of  King's  Bench  refused  to  give  them  leave 
to  alter  their  replication,  and  ycy)\j  fratid  ;{ff)  for  besides  that  there  had 
been  a  trial,  it  might  have  been  dangerous  to  permit  the  alteration ; 
because  the  defendant,  on  the  former  issue,  might  have  paid  away  assets, 
as  knowing  the  replication  could  not  affect  her.  So,  where  the  plaintiff 
had  been  nonsuited  upon  a  general  replication,  "  that  the  cause  of  action 
arose  within  six  years,"  the  court  refused  to  set  aside  the  nonsuit,  and  to 
give  the  plaintiff  leave  to  reply  de  novo,  "  that  the  writ  of  latitat  issued 
within  the  six  years. "(^) 

After  a  demurrer,  the  courts  would  not  formerly  have  permitted  an 
amendment  to  be  made,  without  the  consent  of  the  adverse  party. (A)  But 
of  late  years,  they  have  not  observed  the  same  strictness  as  formerly,  with 
regard  to  amendments ;(/)  and  it  is  much  better  for  the  parties  that  they 
should  not.  Hence  it  is  now  settled,  that  after  a  demurrer  or  joinder  in 
demurrer,  either  party  is  at  liberty  to  amend,  as  a  matter  of  course,  wliilst 
the  proceedings  are  in  paper  :(/c)  Indeed,  the  very  intent  of  requiring  mis- 
takes in  point  of  form  to  be  shown  for  cause  of  demurrer,  was  to 
give  the  *party  an  opportunity  of  amending.(flrt)  And  even  where  [  *710  ] 
the  proceedings  are  entered  on  record,(i?>)  and  the  demurrer  has 
been  argued,(cc?)  the  coui'ts  will  give  leave  to  amend,  where  the  justice  of 

(a)  1  n.  Blac.  238. 

(i)   1  Stark.  Ni.  Pri.  312,  13;  and  sec  2  Chit.  Rep.  28.     5  Barn.  &  Aid.  89C ;  but  see  5 
Moore,  164.     2  Bred.  &  Bing.  395,  S.  C. 
-   (c)  8  Moore,  584. 

\d)  Sav.  Rep.  172.     2  Bur.  T5G ;  and  sec  1  Dowl.  &  Rvl.  4T3.  ;         (r)  Say.  Rep.  285. 

Iff)  2  Str.  1002  ;  and  see  G  Taunt.  45.     1  Marsh.  401,  S.  C.  (y)  5  Bur.  2G02,  3. 

(A)  1  Ld.  Raym.  310.  Id.  GG8.  1  Salk.  50,  S.  C.  1  Ld.  Raym.  679,  S.  P. ;  but  see  Cas. 
temp.  Hardw.  171. 

(i)  2  Bur.  75G. 

{k)  2  Salk.  520.     Gilb.  C.  P.  114,  15.  (aa)   2  Str.  84G. 

(hb)  Id.  ihid.  1  Barnard.  K.  B.  213,  220,  S.  C.     Barnes,  8. 

(fc)  2  Wms.  Saund.  5  Ed.  402.  2  Str.  735,  954,  976.  Caa.  /rw;>.  ITardw.  42,  S.  C.  1  Bur. 
321,2.  Doug.  330,  G20.  1  East,  372.  Barnes,  9,  20,  21,  25.  But  after  the  court  had  given 
their  opinion  on  the  argument,  an  amendment  was  denied.  1  East,  391  ;  and  see  Barnes,  9. 
1  IT.  Bhu".  37.  2  Bos.  &  Pul.  482.  3  Bos.  &  Pul.  11,  12.  5  Tauut.  765.  6  Taunt.  248.  1 
Marsh.  567,  S.  C. 


n-^Q  OF  AMENDMENT. 

the  case  requires  it,  and  there  is  any  thing  to  amend  by,  upon  payment  of 
costs. ((/)  But,  in  the  Common  Pleas,  after  a  party  has  once  amended  on 
a  dcniurrer,  the  court  will  not  give  him  leave  to  amend  again,  on  a  second 
demurrer,  (e) 

Upon  similar  grounds,  the  courts  will  sometimes  give  a  party  leave  to 
withdrcav  his  demurrer,  after  it  has  been  argued,  and  to  plead  or  reply  de 
novo,  in  order  to  let  in  a  trial  of  the  merits.(/)  Thus,  in  the  King's 
Bench,  after  a  demurrer  to  the  defendant's  plea  had  been  argued,  and  the 
matter  stood  over  for  the  judgment  of  the  court,  a  rule  was  made  to  show 
cause,  why  the  plaintiff  should  not  have  leave  to  withdraw  his  demurrer, 
and  reply  to  the  plea;  which  rule,  no  cause  being  shown,  was  afterwards 
made  absolute. (^//)  So,  in  the  Common  Pleas,  where  the  defendant  plead- 
ed, in  debt  on  bond,  that  he  paid  the  money  before  the  day,  according  to 
the  condition,  which  was  in  the  disjunctive,  to  pay  on  or  before  the  day, 
and  the  plaintiff  demurred  to  the  plea,  the  coui't,  after  argument,  allowed 
him  to  withdraw  his  demurrer,  and  to  reply,  upon  payment  of  costs. (7i7i) 
And  the  demandant,  we  have  seen,(/i)  was  allowed  to  withdraw  a  demurrer, 
and  reply  de  novo,  in  a  writ  of  formedon,  upon  showing  good  ground  by 
affidavit.  The  courts,  however,  will  always  take  care,  that  if  one  party 
obtain  leave  to  amend,  or  to  withdraw  his  demiu-rer,  the  other  party  shall 
not  be  delayed  or  prejudiced  thereby. (M) 

But  the  giving  or  withholding  leave  to  withdraw  demurrers,  is  altogether 
discretionary  in  the  courts :(/)  Therefore  where,  to  an  action  of  debt  upon 
a  bail  bond,  the  defendent  pleaded  there  was  no  bill  of  Iliddlesex,  and  the 
plaintiff  demurred,  the  com't  of  King's  Bench,  after  delivering  their  opinion 
in  favour  of  the  defendant,  refused  to  give  the  plaintiff  leave  to  withdraw 
his  demurrer,  and  amend  :{m)  And  by  Wright,  Just.  "  It  is  not  usual  to 
amend,  after  a  demurrer  has  been  argued,  and  the  opinion  of  the  court  is 
known :  and  it  is  certainly  improper  to  give  leave  in  the  present  case,  it 
being  an  action  against  bail,  whom  the  court  are  always  inclined  to  fa- 
vour." So,  where  the  defendant  rejoined  to  several  replications  in  tres- 
pass, and  demurred  to  others,  and  a  verdict  was  found  for  him 
[  *711  ]  *upon  the  issues  in  fact,  and  contingent  damages  assessed  upon 
the  demurrers,  which  were  afterwards  overruled ;  the  court  of 
King's  Bench  refused  to  let  the  defendant  withdraw  his  demurrers,  and 
plead  to  issue  :(a)  And,  by  De7nson,  Just.  "Where  the  demurrer  is  first 
argued,  before  any  trial  of  the  issues,  the  court  will  give  leave  to  amend ; 
as  in  the  case  af  G-iddins  v.  Cfiddins  :{b)  But  this  is  an  attempt  to  amend 
issues  in  law,  after  a  verdict  has  been  found  on  the  issues  in  fact,  and  con- 
tingent  damages  assessed  ;  of  which  there  never  was  an  instance.  And  we 
do  not  know  where  it  would  end ;  nor  how  the  cause  could  be  agani  carried 
down  to  trial.  The  court  cannot  help  seeing  that  this  is  upon  record :  Here 
are  verdicts  and  contingent  damages  found.    The  cases  of  amendment  cited 

(d)  2  Chit.  Rep.  292. 

(e)  2  H.  Blac.  561 ;  but  see  8  Taunt.  515,  16.     2  Moore,  566,  S.  C. 
(/)   Doug.  385,  452. 

(gff)  1  Kea.  335.     Say.  Rep.  316,  S.  C. ;  and  see  2  Chit.  Rep.  5. 
(hh)  2  Wils.  173  ;  and  see  1  Moore,  61.  (n)  Ante,  699. 

(M)  2  Bur.  756  ;  but  see  1  East,  372,  where  the  plaintiff  had  leave  to  amend  a  replication 
to  a  sham  plea,  after  argument,  without  paying  costs. 
(I)  1  East,  135,  (a).     5  Price,  412. 
(7/1)  Say.  Rep.  116,  17 ;  and  see  7  Dowl.  &  Ryl.  41. 
(a)  1  Bur.  321,  2.  (6)  Say.  Rep.  316.  ' 


OF  AMENDMENT.  711 

are,  ■when  the  •whole  is  supposed  to  be  in  paper ;  or  else  the  court  could  not 
have  done  it.  We  have  no  authority  to  do  this,  after  it  is  plainly  upon  re- 
cord." So,  where  judgment  had  been  given  for  the  defendant  on  demur- 
rer to  a  plea,  the  court  of  Common  Pleas  would  not,  in  a  subsequent  term, 
set  aside  that  judgment,  and  suffer  tlie  plaintiff  to  reply,  by  confessing 
the  matters  contained  in  the  plea,  and  taking  judgment  of  assets  qucmdo 
acciderint.{c) 

Whilst  the  proceedings  are  in  jJctjyer,  the  amendment  is  at  common  law; 
and  not  within  any  of  the  statutes  of  amendments,  which  relate  only  to  pro- 
ceedings of  record.((^)  And  there  is  no  difference,  as  to  the  doctrine  of 
amending  at  common  law,  between  civil  and  criminal  cases  :(e)  ■  nor  between 
penal  and  other  actions. (/)  Thus,  in  a  qui  tarn  action  of  usury,  the  plain- 
tiff was  permitted  to  amend  his  declaration,  by  altering  the  date  of  a  note, 
after  issue  joined  and  entered  on  the  roll,  and  after  many  terms  had  elapsed 
since  the  commencement  of  the  action. (_r/)  A  similar  amendment  was  per- 
mitted, in  a  subsequent  case,  after  the  record  had  been  made  up  for  trial, 
and  withdrawn  upon  discovery  of  the  mistake. (/i)  So,  where  the  defendant 
was  served  with  the  copy  of  a  latitat  in  a  penal  action,  by  a  wrong  name, 
and  declaration  filed  conditionally  by  the  same  name,  to  whicli  he  appeared, 
and  pleaded  a  misnomer  in  abatement,  the  court  of  King's  Bench  held,  that 
a  judge's  order  to  amend  the  bill  and  declaration,  by  substituting  the  true 
name,  was  good  ;  and  that  after  such  amendment,  the  proceedings  could  not 
be  set  aside  for  irregularity.  (^)  And  in  general  it  seems  that  where  there 
has  been  no  unnecessary  delay  on  the  part  of  the  plaintiff,  the  courts  will 
give  him  leave  to  amend  his  declaration  in  a  penal  action,  even  after  the 
time  allowed  for  bringing  a  new  one  is  expired. (A;)  But  where 
the  plaintiff  in  such  an  action  has  been  guilty  of  any  *unncces-  [  *712  ] 
sary  delay  in  prosecuting  his  suit,  the  courts  in  their  discretion 
will  not  permit  amendments  to  be  made  in  the  declaration,  though  the 
pleadings  are  still  in  paper  :{a)  And  in  a  late  case,  the  court  of  Cummon 
Pleas  would  not,  in  a  penal  action,  alter  the  term  of  which  the  declaration 
was  entitled,  to  a  previous  term,  Avithout  a  sufficient  reason  being  assigned 
by  affidavit. (J)  So,  in  an  action  of  debt,  to  recover  penalties  against  a 
sheriff"s  officer  for  extortion,  on  the  statute  32  Geo.  II.  c.  28,  that  com-t, 
we  have  seen,(cc)  would  not  allow  the  declaration  to  be  amended,  by  adding 
new  counts  on  the  statute  23  Hen.  VI.  c.  9.  And  there  is  said  to  be  no 
instance,  in  which  the  court  of  King's  Bench  have  given  leave  to  amend, 
as  to  the  parties  to  the  suit  in  a  qui  tarn  action,  after  demurrer. (t?f7) 

AVhen  the  proceedings  are  entered  on  record^  the  courts,  it  is  said,  will 
amend  no  farther  than  is  allowable  by  the  statutes  of  amendments. (ce) 

(c)  6  Taunt.  45.     1  M.arsh.  401,  S.  C.  {d)   1  Salk.  47.     3  Salk.  31. 

\e)  1  Salk.  51.  2  Ld.  Raym.  10G8.  6  Mod.  285,  S.  C.  Cas.  temp.  Hardw.  42.  2  Str. 
739.     4  East,  175. 

(/)  1  Str.  137.   2  Str.  1227.    1  Wils.  25G.    1  Bur.  402.   2  Ken.  82,  S.  C.   3  Maule  &  Sel.  450. 

\g)  2  Bur.  1098,  9. 

(A)  5  Bur.  2833,  4;  and  see  Taillcur,  qui  (am  v.  Codes,  T.  22  Geo.  ITI.  K.  B.  C  Durnf. 
&East,  173. 

(i)  3  Maule  &  Sel.  450. 

(k)  6  Durnf.  &  East,  543.  7  Durnf.  &  East,  55.  4  East,  433,  435  ;  and  see  2  Chit.  Rep. 
23,  25. 

(a)  2  Durnf.  &  East,  707.     G  Durnf.  &  East,  171.     8  Durnf.  &  East,  30. 

(b)  6  Taunt.  19.     1  Marsh.  419,  S.  C. ;  but  see  2  Chit.  Rep.  22,  25. 

(cc)  Ante,  G98.  (dd)  Per  Butler,  J,  4  Durnf.  &  East,  228. 

[ee)  1  Balk.  47.     3  Salk.  31.     Gilb.  C.  V.  114,  15.     2  Wils.  147.     2  Blac.  Rep.  920, 


712  ^*'  OF  AMENDMENT.         '^ 

By  the  first  of  these  statutes,  (14  E^.  III.  stat.  1,  c.  6,)  it  is  enacted, 
that  "  no  process  shall  be  annulled  (flytscOiftinued,  by  misprision  of  the 
clerk,  in  writing  one  syllable  or  letter  too  much  or  too  little ;  but  as  soon 
as  the  mistake  is  perceived,  by  challenge  of  the  party,  or  in  other  manner, 
it  shall  be  amended  in  due  form,  without  giving  advantage  to  the  party 
that  challengeth  the  same,  because  of  such  misprision."  The  judges  con- 
strued this  statute  so  favourably  for  suitors,  that  they  extended  it  to  a 
iVord.{f)  And,  by  the  9  Hen.  V.  stat.  1,  c.  4,  it  is  declared,  that  they 
shall  have  the  same  power,  as  well  after  as  before  judgment,  so  long  as 
the  record  and  process  are  before  them.  This  statute  is  confirmed,  and 
made  perpetual  by  4  Hen.  VI.  c.  3,  with  a  proviso,  that  it  shall  not 
extend  to  process  of  outlawry,  &c.  By  the  8  Hen.  VI.  c.  12,  the  justices 
are  further  empowered  to  examine  and  amend  what  they  shall  think,  in 
their  discretion,  to  be  the  misprision  of  their  clerks,  in  any  record,  pro- 
cess, [a]  word,  plea,  warrant  of  attorney,  writ,  panel,  or  return :  And,  by 
the  8  Hen.  VI.  c.  15,  they  may  amend  the  misprisions  of  their  clerks  and 
other  officers,  as  sheriffs,  coroners,  &c.  in  any  record,  process,  or  return 
before  them,  by  error  or  otherwise,  in  writing  a  letter  or  syllable  too  much 
or  too  little.  These  are,  properly  speaking,  the  only  statutes  of  amend- 
ments ;{g)  and  it  seems  they  apply  to  peyial  as  well  as  to  other  actions  ;(A) 
but  they  do  not  extend  to  crimmal  cases,(^)  nor,  as  it  should  seem,  to 

process  in  inferior  courts. (^^)[b] 
[  *713  ]       *In  order  to  amend  upon  these  statutes,  it  is  a  general  rule, 

that  there  must  be  something  to  amend  by.[c]  And  in  compli- 
ance with  this  rule,  it  has  been  determined,  that  the  original  writ,(a)  or 
bill,(Z>)  is  amendable  by  the  instructions  given  to  the  officer ;  the  declara- 

(/)  8  Co.  157,  a. 

{(/)  1  Salk.  51.  The  rest,  beginning  with  the  32  Hen.  VIII.  c.  30,  are  statutes  o?  jeofails. 
Id.  ibid;  and  see  Steph.  PI.  Append,  xxxv.  v. 

(A)  I  ^o\.  Khv.m.  Amendment.  2  Str.  1227.  Doug.  114.  1  Marsh.  180.  2  Chit.  Rep.  25. 
1  Stark.  Ni.  Pri.  400,  S.  C. 

r«)   1  Salk.  51.     2  Ld.  Raym.  1307.     Gilb.  C.  P.  116. 

\kk)  Willes,  122.  The  language,  however,  used  by  the  court  in  this  case,  "  that  the  words 
of  the  statutes  of  amendments  do  not  extend  to  inferior  courta,"  must,  it  is  presumed  by  Mr. 
Durnford,  be  understood  with  this  qualification,  that  the  inferior  coui't  itself  cannot  amend; 
For,  if  a  writ  of  error  be  brought  in  the  King's  Bench  from  an  inferior  court,  for  an  error 
amendable  by  the  statute  8  Hen.  VI.  c.  12,  there  seems  to  be  no  reason  why  the  superior 
court  sliould  not  amend  that  error  ;  the  words  of  that  statute  not  being,  that  "  in  any  action 
broiif/lit  in  any  of  the  superior  courts,"  but  "for  error  assigned  in  «?;?/ records,  &c.,"  no  judg- 
ment shall  be  reversed,  &c.  but  the  king's  judges,  &c.  piay  amend,  &c.  Id.  126,  n.]  but  see 
1  Rol.  Abr.  209,  10,  scmb.  contra. 

{a)  8  Co.  161.     1  Ld.  Raym.  564.     1  Salk.  49,  S.  G.     Barnes,  10,  16,  22. 

{b)  Barnes,  3,  11,  16,  24,  26. 

[a]  An  original  writ  may  be  amended.  Bartholomeio  v.  Chautaque  Bank,  19  Wend.  99. 
Dean  V.  Swift,  11  Verqi.  531.  Fitzgerald  v.  Garvin,  T.  U.  P.  Charlton,  281.  Sneets  v. 
Weathersbee,  R.  M.  Charl.  537  ;  so  a  writ  of  right.  Boston  v.  Otis,  20  Pick.  38  ;  so  an  at- 
tachment in  Alabama.  Scott  v.  dlaei/,  3  Ala.  250.  But  where  there  is  no  declaration  in 
the  writ,  the  court,  in  Massachusetts,  will  not  grant  leave  to  amend  by  filing  a  declaration. 
Brown  v.  Seymor,  1  Pick.  32.     Bringham  v.  Esbe,  2  Pick.  425. 

A  ea.  sa.  returnable  on  Sunday,  or  out  of  term,  being  final  process,  is  amendable.  Aliter, 
per  Bronson  C.  J.,  of  mesne  process,  which  would  be  void  in  such  case.  Stone  v.  Martin,  2 
Denio,  185.  Woodx.  Hill,  5  New  Hamp.  229.  Bell  v.  Austin,  13  Pick.  90.  Cramer  v.  Van 
.4^67//ne,  9  Johns,  386.  /iTy/fs  v.  i^orrf,  2  Rand.  1.  S.  P.  2.  Pen.  632.  1  Monr.  146.  But  a 
writ  of  entry  cannot  be  amended  by  striking  out  the  name  of  one  of  the  demandants. 
Pickett  V.  King,  4  New  Hamp.  212.     Treat  v.  M'Mahan,  2  Greenl.  120. 

[b]  See  note  [b]  ante  p.  ICl. 

[c]  See  ante,  note  [b]  page  161,  where  the  cases  are  collected. 


'*» 


OF  AMENDMENT.  7;[3 

tion  by  the  bill  ;(6')  the  pleadings,  subsequent  to  the  '%claration,  by  the 
paper-book, (cZ)  or  draft  under  counsel's  hand  ;(e)  the  liisijjrius  roll  by  the 
plea  roll;(/)  the  verdict,  whether  general  or  special,  b^  the  plea  roll,((/) 
memory,(A)  or  notes(i)  of  the  jiMge,  or  notes  of  the  associate,(;t-)  or  clerk 
of  assize  :{l)  and  if  special,  by  the  notes  of  counsel, (w«)  or  even  by  an 
affidavit  of  what  was  proved  upon  the  trial  ;(><)  the  judgment  by  the 
verdict  ;(o)  and  the  writ  of  execution  by  the  judgmcnt,(  jj)  or  by  the  award 
of  it* on  the  roll,(5')  or  by  former  process. (r)  But  notwithstanding  the 
general  rule,  Avhich  prohibits  amendments  not  authorized  by  the  above 
statutes,  after  the  proceedings  are  entered  on  record,  the  courts,  we  have 
seen,(.s)  have  in  particular  instances  permitted  the  plaintiflF  to  amend  his 
declaration  or  replication,  and  the  defendant  to  amend  his  plea,  in  cases 
where  there  has  been  nothing  to  amend  by,  after  issue  joined, 
and  after  the  proceedings  have  been  entered  on  record,  and  *even  [  *714  1 
after  a  trial  has  been  had  thereon,  and  the  plaintiff  has  been  non- 
suited, or  failed  in  producing  the  record. 

The  amendment  may  be  made  in  any  stage  of  the  proceedings  :(aa)  and 
those  things  which  are  amendable  before  error  brought,  are  amendable  after- 
wards, so  long  as  diminution  may  be  alleged,  and  a  certiorari  awarded.(66) 
After  error  brought  in  the  King's  Bench,  on  a  judgment  of  the  Common 
Pleas,  the  amendment  may  be  made  in  the  former  court, (c<?)  or  in  the  court 
below. ((^)  If  it  be  made  below,  a  certiorari  may  be  had,  on  alleging  dimi- 
nution, to  bring  up  the  record  in  its  amended  state ;  or,  if  the  clerk  of  the 
treasury  of  the  Common  Pleas  attend  with  the  record  in  the  King's  Bench, 

(c)  1  Str.  583.     2  Str.  954,  1151,  1162,  1271.     1  Ken.  368.    Say.  Rep.  294,  S.  C. 

(d)  8  Co.  161,  b.  Palm.  404,  5.  Latch,  58,  86,  S.  C.  Cro.  Car.  144.  1  Salk.  50,  88.  2 
Ld.  Raym.  895,  S.  0. 

(<?)  Cro.  Eliz.  258.     2  Str.  846.     1  Barnard,  K.  B.  213,  220,  S.  C. 

(/)  8  Co.  161,  b.  Cro.  Car.  203.  1  Salk.  48.  1  Ld.  Raym.  94.  12  Mod.  107.  Comb, 
393,  S.C.  2  Str.  1264.  Say.  Rep.  76.  Barnes,  14.  1  Campb.  57.  2  Chit.  Rep.  22;  but  see 
1  Ld.  Raym.  511. 

(ff)  1  Ld.  Raym.  133. 

(h)  Cro.  Car.  338.  Gilb.  C.  P.  164.  1  Bac.  Abr.  101.  Bui.  Ni.  Pri.  320.  Cas.  Pr.  C.  P. 
118,  19.    Barnes,  6,  S.C.   /(/.  449. 

(/)  2  Str.  1197.  1  Wils.  33,  S.  C.  Doug.  376,  673,  722,  745.  3  Durnf.  &  East,  659,  749. 
8  East,  357.  1  Bos.  &  Pul.  329.  3  Bos.  &  Pul.  343.  1  Marsh.  182.  3  Biug.  334;  but  see 
1  H.  Blac.  78.  6  Durnf.  &  East,  691.  1  Barn.  &  Aid.  161.  2  Chit.  Rep.  352.  7  Moore,  269. 
But  the  court  of  King's  Bench  rejected  an  application  to  amend  the  entry  of  a  verdict,  ac- 
cording to  the  notes  of  an  arbitrator,  to  ■n-liom  the  cause  had  been  referred,  on  the  ground 
that  they  had  no  power  to  compel  such  notes  to  be  brought  before  them.  1  Chit.  Rep.  283. 
And  the  application  to  amend  the  verdict  by  the  judge's  notes,  should  be  made  to  the  judge 
who  tried  the  cause,  and  not  to  the  court.  Id.  ibid. 

(k)  2  Chit.  Rep.  352. 

(I)  Cro.  Car.  144.  1  Salk.  47,  8.  1  Ld.  Raym.  138,  S.  C.  1  Salk.  53.  1  Ld.  Raym.  335. 
1  Barnard.  K.  B.  191.    1  Bac.  Abr.  101.    Gilb.  C.  P.  103 ;  but  see  2  Durnf.  &  East, '281. 

(m)   1  Rol.  Rep.  82.     1  Rol.  Abr.  207,  pi.  15.    1  Salk.  47,  8 ;  53. 

(n)   1  Str.  514.     8  Mod.  49,  S.  0. 

(o)  2  Str   787.    3  Durnf.  &  East,  349.    1  Marsh.  182.     11  Price,  410.     3  Ring.  346. 

(j9)  Barnes,  10,  11.  2  Blac.  Rep.  836.  2  Durnf.  &  East,  737.  5  Durnf.  &  East,  577.  6 
Durnf.  &  East,  450.     4  Taunt.  322. 

(q)  Say.  Rep.  12.     3  Wils.  58.     2  Bos.  &  Pul.  330.    1  Marsh.  237.    5  Taunt.  605,  S.  C. 

(r)  3  Wils.  58.    3  Durnf.  &  East,  057.     1  H.  Blac.  541. 

(s)  Ante,  697,  8 ;  708,  9.  (aa)  Ante,  697,  8. 

(bl>)  8  Co.  162,  a.  W.  Jon.  9.  3  Durnf.  &  East,  349,  569,  74^.  7  Durnf.  &  East,  474,  703. 
4  Taunt.  588.  2  Chit.  Rep.  22,  (a) ;  and  see  1  Salk.  269.  Cas.  tenip.  Hardw.  119,  for  the 
time  of  awarding  a  certiorari. 

(cc)  Poph.  102.     8  Co.  1G2,  a.    2  Rol.  Rep.  471.  3  Manle  &  Sel.  591.    3  Bing.  346. 

((W)  Poph.  102.  Hardr.  505.  1  Salk.  49,  270,  71.  2  Str.  787.  1  H.  Blac.  643.  4  Taunt. 
588.     1  Marsh.  180.     3  Bmg.  346. 


tr-iA  OF  AMENDMENT. 

the  latter  court  on  motion  will  order  the  transcript  to  be  amended  by  it.(e) 
And  this  way  of  amending  the  transcript  in  the  King's  Bench,  is  the  com-se 
of  the  court,  in  order  to  save  a  certiorari ;  for  if  the  record  be  right  below, 
the  party,  upon  diminution  alleged,  may  have  a  certiorari  of  common  right 
for  bringing  it  up.(/)  After  error  brought  in  the  Exchequer  Chamber, 
upon  a  judgment  of  the  King's  Bench,  it  is  said  to  be  necessary  to  make 
the  amendment  in  the  latter  court ;  as  this  differs  from  the  case  of  a  writ  of 
error  from  the  Common  Pleas,  because  that  court  is  supposed  to  send  up  the 
very  record,  but  the  King's  Bench  sends  only  a  transcript.(^)  But  where 
the  issues  are  entered  informally,  the  court  of  Exchequer  Chamber  will  ad- 
journ the  hearing  of  the  case,  to  afford  an  opportunity  for  the  party  to  apply 
to  the  court  below,  to  amend  the  record,  unless  the  counsel  will  consent  to 
argue  upon  the  supposition  of  such  an  amendment. (A)  When  the  record 
has  been  amended,  it  is  either  certified  into  the  Exchequer  Chamber,  upon 
diminution  alledged  ;(i)  or  upon  carrying  it  there,  by  the  clerk  of  the  trea- 
sury of  the  King's  Bench,  the  justices  and  barons  will  order  the  transcript 
to  be  amended  :{k)  or  the  transcript  may  be  brought  back,  and  amended  in 
the  King's  Bench,  by  the  original  record.(?)  So,  after  error  brought  in  the 
House  of  Lords,  upon  a  judgment  of  the  King's  Bench,(m)  or  of  the  Com- 
mon Pleas  affirmed  in  that  court  on  a  writ  of  error,  (><)  the  amendment 
should  be  made  in  the  court  of  King's  Bench,  where  the  record  still  re- 
mains. If  there  be  any  mistake  in  the  transcript,  by  the  negligence  of  the 
clerk,  the  court  above,  on  carrying  up  the  record,  will  order  the  transcript 

to  be  amended  by  it  :(o)  and  though  after  a  writ  of  error,  it  is 
[  *715  ]   not  usual  to  ^suffer  an  amendment  of  the  record  of  an  inferior 

court, (a)  yet  where  there  is  a  mistake  in  the  transcript,  the  court 
above  will  order  it  to  be  rectified  :(h)  And  a  certiorari  has  been  issued  to 
the  judge  of  an  inferior  jurisdiction,  to  return  the  practice  of  this  court.(c) 
The  clerk  of  the  errors  in  the  Common  Pleas,  in  transcribing  the  record, 
by  mistake  entitled  the  declaration  generally,  instead  of  specially,  and 
error  was  assigned  thereon  ;  after  which  he  amended  the  transcript,  by  in- 
serting the  special  title ;  and  the  court  of  King's  Bench  would  not  restore 
the  transcript,  to  the  state  in  which  it  stood  at  the  time  when  the  plaintiff 
in  error  assigned  his  error. (cM) 

On  an  amendment  after  error  brought,  it  was  not  formerly  usual  to  allow 
the  plaintiff  his  costs  of  the  writ  of  error  :{ee)  but  it  is  now  settled,  that 
they  shall  be  allowed  him,  provided  the  amendment  be  made  after  final  judg- 
ment, and  the  plaintiff,  after  notice  of  the  amendment,  do  not  proceed 
farther  ;(^)  though  if  the  amendment  be  made  before  final  judgment,(^^) 
or  the  plaintiff  proceed  after  notice  thereof,(A7i)  he  shall  not  be  allowed  his 

(f)  2  Rol.  Rep.  471.     Hardr.  505. 

(/)   1  Salk.  49 ;  and  see  Cas.  temp.  Hardw.  118.     2  Str.  1023,  S.  C. 

{g)  2  Str.  83'7.  But  see  6  Moore,  135.  3  Bred.  &  Bing.  66.  9  Price,  432,  S.  C,  where 
the  amendment  was  first  made  in  the  Exchequer  Chamber,  and  afterwards  in  the  King's 
Bench. 

(h)  1  Younge  &  J.  376.  (i)  Cro.  Jac.  429,  628.     2  Rol.  Rep.  471. 

{k)  1  Rol.  Abr.  208.  (Z)  Id.  209.    2  Str.  837. 

{m)  3  Durnf.  &  East,  659.  («)  3  Maule  &  Sel.  591.  (o)  Hardr.  505. 

(a)  1  Rol.  Abr.  209,  10;  but  see  Willes,  126,  (n).    Ante,  712. 

\b)  1  Wils.  337.     Say.  Rep.  59,  S.  C.     4  Dowl.  &  Ryl.  315. 

(c)  4  Dowl.  &  Ryl.  315.  {dd)   1  Maule  &  Sel.  232.  {ee)  3  Mod.  113. 

(/)  3  Lev.  361.     2  Ld.  Raym.  897.     Lloid  v.  Skutt,  T.  23,  Geo.  III.  K.  B. 

{gg)  1  Ld.  Raym.  95. 

\hh)  1  Salk.  49,  in  marg.  Lloid  v.  Skutt,  T.  23  Geo.  III.  K.  B. 


OF  AMENDMENT.  715 

costs.  And  when  amendments  arc  made  upon  a  writ  of  error,  after  verdict, 
&c.,  by  virtue  of  the  statutes  of  joufails,  no  costs  are  given  ;  for  the  con- 
struction of  those  statutes  has  been,  to  give  judgment  fur  the  party  upon 
the  writ  of  error,  as  if  the  amendments  had  been  made. (/)[!] 

(i)  Cas.  icmp.  Hardw.  314.  And  see  further,  as  to  the  doctrine  of  amendment,  Stcph.  PI. 
97,  8.     2  Archb.  K.  B.  230,  &c. 

[1]  By  the  Law  amendment  act,  3  &  4  W.  IV.  c.  74,  wliich  is  one  of  the  principal  recent 
statutes  for  the  improvement  of  the  law  in  England,  fines  and  recoveries  are  abolished,  and 
there  is  a  clause  therein,  §  7,  that  "if  it  shall  be  apparent,  from  the  deed  declaring  the  uses 
of  any  fine  already  levied,  or  hereafter  to  be  levied,  that  there  is  in  the  indentures,  record, 
or  any  of  the  proceedings  of  such  fine,  any  error  in  the  name  of  the  conusor  or  conusce  of 
such  fine,  or  any  misdescription  or  omission  of  lands  intended  to  have  been  passed  by  such 
fine,  then  and  in  every  such  case  the  fine,  without  any  amendment  of  the  indentures,  record, 
or  proceedings,  in  which  such  error,  misdescription,  or  omission  sliall  have  occurred,  shall 
be  as  good  and  valid  as  the  same  would  have  been,  and  shall  be  held  to  have  passed  all  the 
lands  intended  to  have  been  passed  thereby,  in  the  same  manner  as  it  would  have  done,  if 
there  had  been  no  such  error,  misdescription,  or  omission."  On  this  clause,  the  court  re- 
fused to  amend  a  fine,  in  a  case  of  misdescription  cured  by  the  statute ;  Lockington,  de- 
mandant;  Shipley  and  wife,  conusors;  1  Bing.  N.  R.  355.  1  Scott.  2G3,  S.  C.  And  they 
would  not  amend  the  warrant  of  attorney  for  suffering  a  recovery,  even  to  the  extent  of 
transposing  names  placed  in  a  wrong  order;  Lamont,  vouchee,  3  Bing.  N.  R.  297. 

By  anotlier  clause  of  the  same  statute,  g  8,  "  if  it  shall  be  apparent,  from  the  deed  making 
the  tenant  to  the  writ  of  entry,  or  other  writ  for  sull'ering  a  common  recovery,  already  suf- 
fered, or  hereafter  to  be  suffered,  that  there  is  in  the  exemplification,  record,  or  any  of  the 
proceedings  of  such  recovery,  any  error  in  the  name  of  the  tenant,  demandant,  or  vouchee 
in  such  recovery,  or  any  mis-description  or  omission  of  lands  intended  to  have  been  passed 
by  such  recovery,  then  and  in  every  such  case  the  recovery,  without  any  amendment  of  the 
exemplification,  record,  or  proceedings  in  which  such  error,  mis-description,  or  omission 
shall  have  occurred,  shall  be  as  good  and  valid  as  the  same  would  have  been,  and  shall  be 
held  to  have  passed  all  the  lands  intended  to  have  been  passed  thereby,  in  the  same  manner 
as  it  would  have  done,  if  there  had  been  no  such  error,  mis-descrii)tion,  or  omission.  Pro- 
vided always,  tliat  nothing  in  this  act  contained  shall  lessen  or  take  away  the  jurisdiction  of 
any  court,  to  amend  any  fine  or  common  recovery,  or  any  proceeding  therein,  in  cases  not 
provided  for  by  this  act."  |  9. 


END    OF   VOLUME   I. 


Vol.  I. 


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